Harrison v. Gillespie

Decision Date15 February 2011
Docket NumberNo. 08–16602.,08–16602.
Citation636 F.3d 472
PartiesJames M. HARRISON, Petitioner–Appellant,v.Douglas GILLESPIE, Respondent–Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

636 F.3d 472
11 Cal.
Daily Op. Serv. 2056
2011 Daily Journal D.A.R. 2472

James M. HARRISON, Petitioner–Appellant,
v.
Douglas GILLESPIE, Respondent–Appellee.

No. 08–16602.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 23, 2010.Filed Feb. 15, 2011.


[636 F.3d 475]

David M. Schieck, Clark County Special Public Defender, Las Vegas, NV; JoNell Thomas (argued) and Scott Bindrup, Deputy Special Public Defenders, Las Vegas, NV; Bret O. Whipple, Las Vegas, NV, for the petitioner-appellant.Steven S. Owens (argued) and David Roger, Office of the Clark County District Attorney, Las Vegas, NV; Catherine Cortez Masto, Nevada Attorney General, Carson City, NV, for the respondent-appellee.Appeal from the United States District Court for the District of Nevada, Robert Clive Jones, District Judge, Presiding. D.C. No. 2:08–cv–00802–RCJ.Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT, SIDNEY R. THOMAS, SUSAN P. GRABER, M. MARGARET McKEOWN, KIM McLANE WARDLAW, WILLIAM A. FLETCHER, RAYMOND C. FISHER, MARSHA S. BERZON, RICHARD R. CLIFTON, and MILAN D. SMITH, JR., Circuit Judges.

[636 F.3d 476]

Opinion by Judge MILAN D. SMITH, JR.; Concurrence by Chief Judge KOZINSKI; Dissent by Judge THOMAS; Dissent by Judge REINHARDT.

OPINION
M. SMITH, Circuit Judge:

Petitioner James Harrison was convicted of first-degree murder in the guilt phase of his trial, but the jury deadlocked over his sentence in the penalty phase of his case. Harrison requested that the jury be polled to ascertain whether the jury had ruled out the death penalty, and was deadlocked on a lesser sentence. The trial court denied Harrison's request and, after determining that further deliberations would not help the jury arrive at a verdict, discharged the jury. Harrison filed a petition for a writ of habeas corpus seeking to prevent the State of Nevada from seeking the death penalty in the pending retrial of penalty-phase proceedings.

Harrison contends that the trial court violated his constitutional right to be free from double jeopardy because the trial court failed to ask the jury if it had unanimously rejected the death penalty, and instead was deadlocked over a lesser sentence, before discharging the jury. We hold that under the facts of this case, the trial judge did not abuse her discretion, or subject Harrison to double jeopardy, by declining to poll the jury before discharging it because it was deadlocked, and unable to reach a verdict.

FACTUAL AND PROCEDURAL BACKGROUND

Harrison was convicted of first-degree murder on November 21, 2006. The State sought the death penalty during the penalty phase of the proceedings, but the jury eventually advised the trial judge that it was deadlocked over Harrison's sentence.

In mid-afternoon, November 27, 2006, the trial judge noted:

[W]e had two notes from two different jurors indicating that the jury was deadlocked between life with and life without.1 We went over those in chambers .... [T]hey indicated they were deadlocked ... when they were last here. We brought them back today. They've been deliberating all day. The Court's inclination is to bring them back and just question them as to whether or not it would be fruitful to continue in any deliberations. They have been working all day, and if they indicate not, then the Court's going to go ahead and excuse them.

The court then clarified that it had received the two notes “before the lunch break,” and that the court, in response, had told the jury to “just keep going” through lunch. After lunch, the court's bailiff “asked them again ... if they wanted to keep deliberating. They indicated no.”

Harrison's counsel objected to the court's proposed course of action:

I'd request that we inquire from the jurors how far along in the process that they were in this penalty phase, and by that I mean as this Court is well aware, they needed to make a determination if the aggravators were proved beyond a reasonable doubt. I would ask that this Court inquire of that. And then the second issue was if the weighing process between the aggravators and mitigators if they had in fact done a weighing process, and I'd ask that this Court poll the 12 individual jurors and ask them individually if any of them made the determination

[636 F.3d 477]

that the mitigation outweighed the aggravations in this matter.

A second defense attorney clarified that Harrison wanted “to ask whether or not they unanimously eliminated [the] death penalty as a punishment because one of the notes to the Court indicated just that.” The State objected to this request by arguing that “[t]he only way to make any determination as to which verdicts they reached or a partial verdict that may have been reached in this case is to look at the verdict form.” In response, Harrison's attorney acknowledged that “we don't know if a verdict has been reached in the sense that there were special verdict forms. They had to make a determination on a special verdict form if the aggravators had been proved beyond a reasonable doubt. That is something they could have in fact reached.”

In response to the parties' assertions, the court stated:

I think ... if that form [containing the jury's findings of aggravating factors] is blank and it has been signed by the foreperson, then ... that would indicate that they did not find the existence of an aggravating circumstance beyond a reasonable doubt. And so then I think the State would be precluded from seeking the death penalty in a subsequent hearing.

The problem is ... if they found aggravators and they found mitigators, until they actually fill out one of the two verdict forms indicating the penalty, we don't know what their weighing analysis was because there's nothing on the mitigating form to say the jury having found these mitigators finds the mitigators outweigh the aggravators or the aggravators outweigh the mitigators. The only way for us to know that is to see what form is actually filled out. I suspect, of course, neither form is going to be filled out because they're deadlocked on the punishment.

What we don't know is whether or not they have in fact [made this finding] by virtue of the fact they're not considering the death penalty or at this point in time are not tied between some with the death penalty, that doesn't tell us where they are in terms of the aggravators and the mitigators.

The court then called the jury into the courtroom and engaged in the following colloquy with the foreperson:

THE COURT: The court has received notes from two members of the jury indicating that the jury is deadlocked and after deliberations is unable to reach a verdict. Is that your assessment of the situation?

THE FOREPERSON: Yes.

THE COURT: Do you feel that further deliberations could aid the jury, or do you feel that the jury is at an impossible impasse in terms of a punishment in this case?

THE FOREPERSON: I think it's at an impasse.

THE COURT: Has the jury completed any of the verdict forms?

THE FOREPERSON: Yes.

THE COURT: Would you please hand those forms to my bailiff.

THE FOREPERSON: All of them or just the—

THE COURT: All of them, please.

Based on the foregoing, the court declared a mistrial and discharged the jury. The court examined the jury's verdict forms, and noted that two of the four forms had been completed. The first two forms showed that the jury had found one aggravating factor (out of the two that the

[636 F.3d 478]

government had offered),2 and twenty-four mitigating factors (all of the factors offered by the defense, as well as an additional factor added by the jury). The forms were signed by the foreperson. The jury was also given two forms on which to record Harrison's sentence. The first form was meant to be used if the jury “found that the aggravating circumstance or circumstances outweigh[ed] any mitigation circumstance or circumstances.” If the jury so found, it would then have been able to select between a fixed term of imprisonment, life with the possibility of parole, life without parole, or death. The second form was meant to be used if the jury “found that the mitigation circumstance or circumstances outweigh[ed] any aggravating circumstance or circumstances.” If the jury so found, it would have been able to select between a fixed term of imprisonment, life with the possibility of parole, or life without parole. The jury failed to mark or sign either of the latter two forms.

On June 20, 2007, approximately seven months after the penalty-phase jury had been discharged, Harrison filed a Motion to Strike the Death Penalty in the state trial court. Harrison argued that he should not be subjected to the death penalty because “[t]he jury decided, twelve to zero, against the use of the death penalty because they had each independently determined that Harrison's mitigating circumstances outweighed the aggravating circumstances of the crime.” Harrison submitted affidavits from three former jurors which, according to Harrison, constituted “a crystal clear acquittal” of the death penalty. The three affidavits, dated February 17, 2006, March 22, 2006, and December 18, 2006,3 were all substantially similar. They stated that “once inside the juror room, one juror announced that she had determined that the death penalty was ‘off the table.’ ” The foreperson (who was one of the three affiants) then took a vote “to determine if all the jurors agreed that ‘death was off the table,’ or that death would not be an option during deliberation. The vote on this issue was twelve (12) to zero (0) in favor of removing death as a potential verdict.” The three affidavits further stated “[t]hat my personal deliberation included weighing the mitigating evidence against the aggravating evidence and that I determined that the mitigation evidence outweighed the evidence of aggravation.” Finally, the affidavits stated that, “if I had been polled by the Court before being excused from service, I would have answered that I had determined that the mitigating...

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    ...eligibility for the death penalty, for fear that such questioning might somehow influence the jury's deliberations. See Harrison v. Gillespie, 636 F.3d 472 (9th Cir.2011). This court's belief that a jury's decision in a capital case can be so easily swayed led to the conclusion in Harrison ......
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    ...cites was withdrawn and replaced by Harrison v. Gillespie, 596 F.3d 551 (9th Cir. 2010), which was superceded by Harrison v. Gillispie, 636 F.3d 472 (9th Cir. 2011) (en banc), which was amended and superceded on denial of rehearing by Harrison v. Gillispie, 640 F.3d 888 (9th Cir. 2011) (en ......

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