Greer v. Thompson, No. S06A1431.

• Decision Date: 20 November 2006
• Docket Number: No. S06A1431.
• Citation: 281 Ga. 419,637 S.E.2d 698
• Parties: GREER et al. v. THOMPSON.
• Court: Georgia Supreme Court

281 Ga. 419

Page 698

637 S.E.2d 698

GREER et al. v. THOMPSON.

No. S06A1431.

Supreme Court of Georgia.

November 20, 2006.

Thurbert E. Baker, Attorney General, Paula Khristian Smith, Assistant Attorney General, Department of Law, Mark Alan Gilbert, Valdosta, for appellant.

James N. Finkelstein, Albany, for appellee.

CARLEY, Justice.

James C. Thompson was tried before a jury in a bifurcated proceeding for trafficking in cocaine and two counts of possession of a firearm by a convicted felon. On the second day of jury deliberations, Juror John Reid informed the other jurors and then the trial court that someone who knew that the jury was split eleven to one contacted him at home the previous night and offered him money if he would change his vote to not guilty. The trial court ordered that no one leave their seats or stand up, and proceeded to swear in and question the jury foreman, Reid, Juror Victoria Cannon, Alternate Juror Tammy Hagines, and several spectators in the courtroom. As a result of that testimony and its own observations, the trial court concluded that Ms. Hagines and Ms. Cannon were not credible witnesses, and that Ms. Hagines, who did not disclose her prior knowledge of Thompson, had talked extensively the previous day with her friend Artavious Williams, a spectator and supporter of Thompson's, conversed privately with Ms. Cannon, and had to be separated from her by the bailiff. The trial court dismissed Ms. Hagines and, over defense counsel's objection and motion for mistrial, replaced Ms. Cannon with another alternate juror. After the jury resumed deliberations and returned a guilty verdict, Thompson's attorney renewed his motion for mistrial and moved to set aside the verdict, arguing in part for the first time that the trial court failed to inquire of Reid whether he could remain fair and impartial and that the entire jury panel was tainted. The trial court denied relief, proceeded to the second portion of the trial, entered judgments of conviction and sentences on the jury's verdicts, and subsequently denied a motion for new trial.

Thompson's trial attorney also represented him on appeal, and the Court of Appeals affirmed, finding in part that he could not complain of the trial court's failure to remove Reid or to give curative instructions because he did not request those particular actions. Thompson v. State, 260 Ga.App. 253, 256-257(3), 581 S.E.2d 596 (2003). The Court of Appeals also concluded that communication of the bribery attempt to the whole jury did not constitute such a fundamental violation of Thompson's right to a fair and impartial jury that the only available remedy is a mistrial. Thompson v. State, supra at 257(3), 581 S.E.2d 596. The Court of Appeals further held that the trial court did not abuse its discretion in removing Ms. Cannon from the jury. Thompson v. State, supra at 257(5), 581 S.E.2d 596. Thompson subsequently filed a petition for writ of habeas corpus. After a hearing, the habeas court granted relief, and the Warden appeals.

The habeas court concluded that defense counsel was ineffective for failing to move for a hearing pursuant to Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), or to move for a mistrial for the failure to grant such a hearing.

To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must show both that his trial attorney's performance was deficient and that the deficient performance was prejudicial to his defense. [Cits.] Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); [cit.].... We must affirm the habeas court's determination of this claim unless "its `factual findings are clearly erroneous or are legally insufficient to show ineffective assistance of counsel. (Cit.)' (Cit.)" [Cit.]

Turpin v. Curtis, 278 Ga. 698, 699(1), 606 S.E.2d 244 (2004). The habeas court relied on the holding in Remmer and in Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) that, where improper jury contacts are allegedly made in an attempt to influence jurors, the trial court must hold a hearing in which all interested parties are permitted to participate. However, examination of those cases reveals that they are not applicable here.

Obviously, neither of these cases addresses the procedures to be followed by a trial judge when a question of jury bias is being investigated during a trial. Further, "(i)n treating charges of jury misconduct, the trial judge is accorded broad discretion." [Cits.].... "We leave it to the [trial] court's discretion to decide the extent to which the parties may participate in questioning the witnesses, and whether to hold the hearing in camera." [Cits.] Furthermore, these cases all involved direct appeals in federal trials, and "the Due Process Clause of the Fourteenth Amendment cannot possibly require more of a state court system." [Cits.]

Wheel v. Robinson, 34 F.3d 60, 64-65(A) (2nd Cir.1994).

The habeas court also held that Thompson's trial counsel was ineffective for failing to state the reasons for a mistrial and for failing to object and ask for curative instructions. However, even assuming that counsel's performance was deficient in responding to the communications to the jury regarding the bribery attempt, Thompson fails to meet the prejudice prong of Strickland. The habeas court relied on the presumption of prejudice arising from improper jury communications which is set forth in Remmer v. United States, supra at 229, 74 S.Ct. 450. However, the Remmer presumption is "a rule of federal criminal procedure, rather than a rule of federal constitutional law." Crease v. McKune, 189 F.3d 1188, 1193(B) (10th Cir.1999). Indeed, in the 52 years since Remmer was decided, it has never been cited by a Georgia appellate court. Moreover, even if that presumption were applicable to the states, its continued viability is in serious question. "[I]t appears that the United States Supreme Court has distanced itself from the Remmer presumption of prejudice...." State v. Mann, 131 N.M. 459, 39 P.3d 124, 135(II)(A)(3) (2002).

In 1982, the Court stated ... in Smith v. Phillips, [supra], that as a remedy for juror bias, the defendant is entitled to a hearing "in which [he] has the opportunity to prove actual bias." As a result several courts of appeals have concluded that Smith eliminated Remmer's presumption of prejudice. There is considerable disagreement after Smith about the scope of Remmer's presumption. [Cits.]

3 Wright, King & Klein, Federal Practice and Procedure: Criminal 3d § 554, p. 472, fn. 3 (2004).

Although the federal criminal procedure in Remmer is inapplicable, the rule in Georgia is that, where an unauthorized communication to a juror occurs in a criminal case, "there is a presumption of harm and the burden is on the State to show the lack thereof. [Cits.]" Jones v. State, 258 Ga. 96 97, 366 S.E.2d 144 (1988). See also Ledford v. State, 264 Ga. 60, 65(9), 439 S.E.2d 917 (1994). That rule, "however, applies on direct appeal, and does not apply when a defendant is procedurally barred from raising an issue of improper [jury] communications ...." Turpin v. Todd, 268 Ga. 820, 830(2)(b), 493 S.E.2d 900 (1997). In evaluating the prejudice component of a claim of ineffective assistance, we apply a presumption of prejudice only in extremely narrow circumstances which are not applicable here. Turpin v. Curtis, supra at 699-700(1), 606 S.E.2d 244. "[E]ven if the law presumes prejudice for certain errors when they are timely raised," a convicted defendant who, like Thompson, is seeking to overcome a procedural bar, whether in conjunction with or separate from a claim of ineffective assistance of counsel, "does not have the benefit of that presumption of prejudice, and must instead meet the actual prejudice test...." Turpin v. Todd, supra at 828(2)(b), 493 S.E.2d 900. See also Upton v. Jones, 280 Ga. 895(2, 3), 635 S.E.2d 112 (2006) (quoting this language after holding, as did Turpin, that ineffective assistance could be relied on, not as a separate claim, but as supplying the requisite cause and prejudice to overcome procedural default). The dissent ignores this rule from Turpin v. Todd. Furthermore, the rule would be destroyed if the dissent were correct that the prejudice prong of Strickland is satisfied merely because a presumption of prejudice was part of the environment in which a hearing would have been held. Moreover, the same rule which the majority ignores applies in federal courts. Turpin v. Todd, supra. Thus, even if the Remmer presumption were viable authority with respect to state convictions, it would not apply in habeas proceedings. See Crease v. McKune, supra; United States v. Pennell, 737 F.2d 521, 533(IV) (6th Cir.1984) (noting that a basis for the holding in Smith was its status as a habeas action).

On direct appeal, "(a) rebuttable presumption of prejudice arises whenever a jury is exposed to external information in contravention of a [trial] court's instructions," [cit.], but this presumption does not apply in the habeas context, [cit.] ... (Emphasis in original.)

Vigil v. Zavaras, 298 F.3d 935, 940(II)(A), fn. 6 (10th Cir.2002).

Accordingly, "`the habeas court relied on an erroneous legal standard for determining prejudice.' [Cit.]" Turpin v. Curtis, supra at 700(1), 606 S.E.2d 244. At the habeas hearing, Reid testified that, prior to the bribery attempt, he had decided to vote guilty based upon the evidence and that neither the phone call nor any outside information influenced his decision in any way whatsoever. (H.T.121) There is absolutely no evidence to the contrary with respect to Reid or any of the jurors who ultimately returned the verdicts. Two other jurors who testified at the habeas hearing were not examined in this regard, and Thompson did not call the remaining nine jurors.

Therefore, on the record before the habeas court, it is "impossible to determine if the outcome of the trial was...