Harrison v. Gillespie

• Decision Date: 05 January 2010
• Docket Number: No. 08-16602.,08-16602.
• Citation: 590 F.3d 823
• Parties: James M. HARRISON, Petitioner-Appellant, v. Douglas GILLESPIE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

590 F.3d 823

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

No. 08-16602.

United States Court of Appeals, Ninth Circuit.

Argued August 10, 2009.

Submitted August 14, 2009.

Filed January 5, 2010.

JoNell Thomas (argued), David M. Schieck, Scott L. Bindrup, Clark County Special Public Defender, Bret O. Whipple, Law Office of Bret Whipple, Las Vegas, NV, for the petitioner-appellant.

Steven S. Owens, Clark County District Attorney, Las Vegas, NV, for the respondent-appellee.

Appeal from the United States District Court for the District of Nevada,¹ Robert Clive Jones, District Judge, Presiding. D.C. No. 2:08-cv-00802-RCJ-RJJ.

Before: PROCTER HUG, JR., STEPHEN REINHARDT and BARRY G. SILVERMAN, Circuit Judges.

Opinion by Judge REINHARDT; Dissent by Judge SILVERMAN.

REINHARDT, Circuit Judge:

A jury may have acquitted James Harrison of the death penalty. We will never know, because the trial court denied his request to ask the jury two simple questions that could have conclusively established that fact, and instead dismissed the jurors. Now, the State of Nevada seeks once again to have him executed. Harrison asserts that a retrial on the death penalty would violate the Double Jeopardy Clause.

The State prosecuted Harrison for murder, and the jury returned a guilty verdict. The State then sought the death penalty, which required proof of two additional facts beyond guilt: that at least one aggravating circumstance existed, and that there were no mitigating circumstances sufficient to outweigh the aggravating circumstances. Nev.Rev.Stat. § 175.554(3). The jury was permitted to impose a sentence of death only if it found unanimously that both facts had been proven beyond a reasonable doubt. Johnson v. State of Nevada, 118 Nev. 787, 59 P.3d 450, 460 (2002) (per curiam). If it found that both had, it also had the option to sentence the defendant to a non-capital sentence: life without parole, life with parole, or a fixed term with parole. Nev.Rev.Stat. § 200.030(4). If the jury determined that the State had not met its burden, it was free to choose only one form or another of the three non-capital sentences. Id.

The jury reported its inability to agree on a sentence, and two juror notes indicated that the jury was deadlocked between life with the possibility of parole and life without the possibility of parole. Harrison requested that the members of the jury be polled to determine (1) whether they had unanimously found that there were no aggravating circumstances and (2) whether they had unanimously found that the mitigating circumstances outweighed the aggravating circumstances. If the answer to either of the questions had been yes, the poll would have established that Harrison had been acquitted of the death penalty, and the Double Jeopardy Clause of the Fifth Amendment would have prohibited the State from seeking that penalty during Harrison's sentencing retrial. However, the prosecution objected to Harrison's request, and trial judge denied it. She then dismissed the jury and declared a mistrial.

We conclude that there was no manifest necessity to declare a mistrial without first polling the jury in order to determine whether Harrison had been acquitted of the death penalty. Accordingly, we hold that the trial court abused its discretion by denying Harrison's polling request. Because no other alternative would adequately protect Harrison's rights under the Double Jeopardy Clause, we further hold that the State may not seek the death penalty at a sentencing retrial, and no such penalty may be imposed by the court.²

I. Factual and Procedural Background

In 2002, Harrison and Anthony Prentice were charged by the State of Nevada with conspiracy to commit murder, burglary, and murder with the use of a deadly weapon in connection with the death of Daniel Miller, Prentice's roommate. The State sought the death penalty against both defendants. The trials were severed, and Prentice was convicted of conspiracy to commit murder and murder with use of a deadly weapon and sentenced to life without parole. Subsequently, a different jury found Harrison guilty of the same charges.

Nevada law provides that Harrison's crime may be punished by death, life without parole, life with parole eligibility, or a definite term with parole eligibility. Nev. Rev.Stat. § 200.030(4). For the jury to impose death, two conditions must be met: first, the jury must unanimously find at least one aggravating circumstance; and second, the jury must unanimously find that the mitigating circumstance(s) do not outweigh the aggravating circumstance(s). Id. Both must be found beyond a reasonable doubt. Johnson v. State of Nevada, 118 Nev. 787, 59 P.3d 450, 460 (2002) (per curiam). If both conditions are met, the jury may choose to impose the death penalty, or may select a lesser sentence. If either condition is not met, the jury may not impose a death sentence. Nev.Rev. Stat. § 175.554(3).

During the penalty stage of Harrison's trial, the jury informed the court that, after deliberating at length, it could not reach a unanimous verdict. The court received "two notes from two different jurors indicating that the jury was deadlocked between life with [the possibility of parole] and life without [the possibility of parole]."³ The judge expressed her inclination to bring the jury back and determine whether further deliberation would be fruitful, and to dismiss the jury in the event that it would not. One of Harrison's attorneys intervened:

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 ... 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 that the mitigation outweighed the aggravations in this matter.

The prosecution opposed polling the jury on the ground that several Nevada statutes allegedly precluded the court from doing so,⁴ and argued 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."

The court did not expressly deny defense counsel's requests to poll the jury, but impliedly agreed with the prosecution's argument. The court explained that if the special verdict forms reflected that the jury had found no aggravators, then "the State would be precluded from seeking the death penalty in a subsequent hearing." As to whether the jury had made a determination regarding the relative weight of the mitigators and aggravators, the court said: "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."

When the jury returned, the court inquired whether further deliberations would be productive, and the foreperson responded that they were "at an impasse." The court then collected all of the special verdict forms. Two were completed and signed (i.e., unanimously agreed-upon). One completed and signed form reflected that the jury found that one aggravating factor — that "[t]he murder involved mutilation of the victim" — had "been established beyond a reasonable doubt." The other completed and signed form reflected that the jury had found no fewer than twenty-four mitigating factors.

The other two forms were blank. The first was to be completed if the jury had arrived at its sentence; it was to be used only if the jury found that the aggravating circumstance(s) outweighed any mitigating circumstance(s), and it contained all four sentencing options. The second form was also to be completed if the jury had arrived at its sentence; it was to be used only if the jury found that the mitigating circumstance(s) outweighed the aggravating circumstance(s), and it contained three non-death sentencing options. Each of the two uncompleted forms contained a blank line next to each sentencing option, allowing the jury to indicate that it had chosen that option; a blank line allowing the jury to indicate the date; and a blank line for the foreperson's signature. Nothing on either form advised the jury to report a finding as to whether the mitigating circumstances outweighed the aggravating circumstances, or vice versa, in the absence of an agreement upon a sentence, and no separate form was provided for the jury to report its finding on that issue.

After collecting the forms, the court dismissed the jury and declared a mistrial without conducting the inquiry that Harrison had requested.⁵ Six months later, before the second penalty phase was scheduled to begin, Harrison made a motion to strike the death penalty. He stated that the members of the jury had "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 his crime." He also argued that he had "insisted upon finding out whether or not the jury had reached a unanimous decision as to the death penalty, but the [trial] court denied his request to make further inquiry of the jury." He asserted that the Double Jeopardy Clause "entitled [him] to establish the record of the jury's verdict so that his rights could be protected."

Harrison also introduced three affidavits from former members of the jury, taken after they had been dismissed. The three affidavits state that, during the penalty phase deliberations, the jury had voted 12-0 that death was "off the table." The three jurors stated that "if [they] had been polled by the Court before being excused from service, [they]...