Grotemeyer v. Hickman
| Decision Date | 15 December 2004 |
| Docket Number | No. 02-17150.,02-17150. |
| Citation | 393 F.3d 871 |
| Parties | Gregory GROTEMEYER, Petitioner-Appellant, v. Rodney HICKMAN, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Donald M. Horgan, Riordan & Horgan, San Francisco, CA, for the appellant.
Christopher W. Grove, Deputy Attorney General, San Francisco, CA, for the appellee.
Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CV-99-04546-PJH.
Before: GOODWIN and KLEINFELD, Circuit Judges, and JONES* District Judge.
We review the denial of a writ of habeas corpus. The most substantial issue is whether there was juror misconduct that would entitle the petitioner to a new trial.
The facts in this case are peculiar, at least to our eyes, to the point of being seriously bizarre. That the facts are bizarre is significant to our analysis.
The victim of the crimes was a young woman who had just moved into an apartment in San Francisco. By the end of the afternoon, the movers had put all her goods into the apartment, including her baby grand piano. Relaxing from the stress of moving, she began playing a classical piece on her piano.
The tenant downstairs from her apartment came upstairs to see her, but not to welcome her. Instead, he complained about the noise. As they were discussing her piano playing, not amicably, the petitioner stepped out of his apartment down the hall from the victim's and said he would be nailing his apartment door shut.
The music-hater (actually he was not a music-hater — he testified that the music "sounded nice, but it was very loud") testified that the petitioner said, "Do you mind if I pound this nail in my door?" The victim looked kind of puzzled and said, "No." The music-hater and the victim exchanged looks and then continued talking about the piano.
After the music-hater's complaint about the noise, the victim felt deflated about playing the piano, so she went out and got some dinner to bring back to her apartment. As she walked down the hall, the petitioner "was actually nailing his door shut." He told the victim her piano playing was pretty. She thanked him and invited him to stop by sometime to have tea or coffee. She then ate alone in front of the television, having locked her door with the deadbolt, and went to sleep.
As the victim subsequently discovered, the deadbolt did not work. She had noticed earlier that the doorknob lock did not work, but had no inkling that the deadbolt did not work either. Around two in the morning, she was awakened by the petitioner (the door-nailer) in her apartment. She asked him what he was doing there. He said, as he was "strolling across the living room" toward her bedroom, "he was going to fuck" her. She strongly voiced her refusal, but he said she had "invited" him. She told him "not for this." He threw her onto her bed. She tried to fight him off, all the while screaming every expletive she could think of. She had no phone yet in her new apartment, so she was hoping her loud voice would rouse a neighbor. He kept telling her that she had invited him, so he had "the right to be there." He scratched and bruised her face and breasts, ripped the crotch open on her sweatpants, and ripped her shirt, pants, and bra. Then he climbed on top of her and stuck his finger in her anus. She bit him and squeezed his testicles as hard as she could.
Fortunately, the victim's screaming roused the music-hater. When putting tissue paper in his ears did not suffice to eliminate the noise, the music-hater pounded on the ceiling with a broomstick to tell them to quiet down. At that point, the petitioner got up and walked out. The victim immediately barred her door with a piece of wood and piled-up boxes as well as the ineffectual locks. Meanwhile, the music-hater had put on his overcoat and gone up the fire escape. He did not know she had barred her door, but he explained that going up the fire escape was a shorter distance than going all the way down the hall, up, and all the way back down the other hallway above him. When he got to the victim's window, he tapped on it to express his desire for quiet.
The victim heard a frightening tapping on her window (not expecting visitors by that route). The music-hater said she turned from where she was piling boxes against her door, and looked at him, "her eyes ... big like flying saucers." It then occurred to him that she would think he was trying to break in. At first the victim couldn't tell who it was, and she was "afraid it was going to be more of the same." She ran over to the window yelling that somebody had tried to rape her, and she found the music-hater, wrapped in an overcoat (he had no pants on), standing on her fire escape. She could tell he was trying to speak to her through the closed window, so she went to another partially opened window to hear what he was saying. He asked what was going on, and she told him the door-nailer had broken into her apartment and tried to rape her. He went around to her door, which she could only open a little, but then he went back to the fire escape out of fear that the door-nailer might see him at the door. Then, deciding that staying on the fire escape was probably "not the gentlemanly thing to do," he went back to the door and invited her down to his apartment to call the police. They crossed through her apartment and went down the fire escape to use the music-hater's phone to call the police.
A policeman came to the apartment building in answer to the victim's call. As he was waiting to be buzzed in, the petitioner walked in with two male transvestite prostitutes, one of whom the police officer had dealt with in the past (the male transvestite prostitutes, he testified, gather a half block away). Rather than arrest the prostitutes, he left them to respond to the more urgent rape call, and found the victim upset, crying hysterically, and very frightened. After talking to the victim, the policeman went to the petitioner's apartment and arrested him. The rape victim turned down the police officer's suggestion that she go to the hospital because she did not think she could afford the cost of medical treatment. Later, the victim found the petitioner's belt in her front entryway.
The petitioner told a very different story at trial. He testified that he was severely injured in a car accident, which put him in a coma, required that a shunt be placed in his brain, and left him with a speech impediment. He met the victim when she and the music-hater were arguing in her doorway. He had broken into his own apartment, wrecking the lock, a week before. After he told the victim he would be nailing his door shut and that he hoped it would not bother her, he told her that the music was wonderful. Later that night, just before midnight, he saw her again when she came into his apartment. She pushed open his broken door, and stared at him lying in his bed, masturbating. Then she invited him back to her apartment to smoke some crack cocaine.
According to the petitioner, he and the victim smoked two or three pieces of crack. Afterward, she asked him to rip her clothes off. He testified that he was bisexual, preferring men, but obliged her (for her pleasure, not his), and obliged her again when she later asked him to insert a finger in her anus. Although she did not explain why she wanted him to do these things, he said his experience had been that people who smoke crack usually like that kind of thing. Then "she started freaking" and bit him, so he left. He testified, So he left the building to pick up the male transvestite prostitutes.
When recalled to the stand, the victim denied that she had furnished any drugs to the petitioner or taken any herself that day or anytime that week, though she admitted to using speed during previous months. The defense then put on a toxicologist to testify about methamphetamine use and its effects. The prosecutor put on a police officer who testified that the petitioner had told him,
The jury convicted the petitioner, Grotemeyer, of first-degree burglary, assault with intent to commit sodomy, sodomy, and false imprisonment. A few weeks after the trial and verdict, one of the jurors contacted the defense lawyer to complain about the jury foreman. The defense moved for a new trial, submitting a declaration from the unhappy juror that the jury foreman, a physician, had improperly used her medical expertise during deliberations. The disgruntled juror made four claims: She alleged that the doctor-foreman (1) "explained that she had `been through this before' and that Mr. Grotemeyer was indeed guilty of the charges"; (2) said, referring to her medical expertise, that "Mr. Grotemeyer was either mentally ill or retarded, and that his condition caused Mr. Grotemeyer to commit the crime for which he was charged"; (3) "went on to say that `an insanity defense should have been mounted' "; and (4) "assured me that if the jury voted to convict, Mr. Grotemeyer would receive as part of his sentence, adequate mental health care." These four statements form the basis for this appeal.
In an amended motion for a new trial, a new lawyer for Grotemeyer submitted a declaration from the music-hater to support an ineffective-assistance-of-counsel claim. The music-hater stated that the victim did not display what would to him seem like the demeanor of a woman who had been raped. He said that while they waited for the police, she asked him to smoke drugs with her and offered him a glass of wine. Later that night, two male friends of the victim arrived, and she hugged one of them, speaking about...
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