Johnson v. Armontrout

• Decision Date: 10 April 1992
• Docket Number: No. 91-2599,91-2599
• Citation: 961 F.2d 748
• Parties: Gerald Glenn JOHNSON, Appellee, v. Bill ARMONTROUT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 748

961 F.2d 748

Gerald Glenn JOHNSON, Appellee, v. Bill ARMONTROUT, Appellant.

No. 91-2599.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 9, 1992.

Decided April 10, 1992.

Ronald L. Jurgeson, Kansas City, Mo., argued, for appellant.

Kathleen A. Clark Hardee, Kansas City, Mo., argued, for appellee.

Before MAGILL, LOKEN, and HANSEN, Circuit Judges.

MAGILL, Circuit Judge.

The State of Missouri appeals the granting of a writ of habeas corpus to Gerald Glenn Johnson. The district court ¹ granted habeas relief because Johnson was convicted by a jury that included four persons who had earlier convicted another man of taking part in the same robbery. Because we find that Johnson was deprived of his constitutional right to a trial before an impartial jury and was denied representation by effective counsel, we affirm.

I.

Three men robbed at gunpoint the Branson Inn in Branson, Missouri, on February 16, 1980. Police arrested three men and charged them with the crime. Carl Denny went on trial first. A jury convicted him on October 8, 1980. When Johnson's venire was assembled on March 2, 1981, ten members of Denny's jury were included in Johnson's venire. Both the prosecutor and Johnson's attorney recognized this fact during voir dire questioning.

Johnson's attorney failed to request that these ten persons be stricken from the venire for cause. When Johnson protested to his attorney about the appearance of the recycled jurors, Johnson's attorney responded that only his six preemptory strikes could be used to dismiss the Denny jurors. Johnson's attorney, thereafter, used five preemptory strikes to remove the Denny jurors. All four remaining Denny jurors were empaneled on Johnson's jury. ²

During voir dire questioning, the prosecutor asked the venire panel whether any of the jurors who had convicted Denny would be unable to decide Johnson's case because of the evidence presented at Denny's trial. No one responded. The prosecutor asked further whether the Denny jurors on the venire would be able to put aside the evidence presented at the Denny trial and decide Johnson's guilt or innocence based "solely on what we hear today and against this defendant." Again, no one responded.

After trial, the jury convicted Johnson of first-degree robbery pursuant to Mo.Rev.Stat. § 569.020 (1986). Johnson was sentenced to thirty years in prison. On appeal, Johnson contended the trial court erred in not removing the Denny jurors for cause and for allowing the Denny jurors to sit on his jury. Johnson also claimed his counsel was ineffective for failing to challenge the Denny jurors for cause, and for failing to inform him of his right to challenge the jurors for cause. The Missouri Court of Appeals affirmed the conviction, concluding that evidence of Johnson's guilt was overwhelming and that the errors by the trial court did not result in a manifest injustice or miscarriage of justice. State v. Johnson, 637 S.W.2d 290, 292 (Mo.App.1982). The appeals court also concluded that the record was devoid of evidence that any member of the jury panel was prejudiced against Johnson. Id. at 291.

Johnson later challenged his conviction in the Missouri state courts under Rule 27.26 of the Missouri Rules of Criminal Procedure. ³ Johnson alleged that the selection of the jury from a venire consisting of Denny jurors and the trial before a jury consisting of Denny jurors violated his constitutional right to an impartial jury. Johnson also alleged ineffective assistance of counsel because his trial attorney failed to assert for-cause challenges to the Denny jurors who remained on his venire. The circuit court held an evidentiary hearing on the motion on January 28, 1987.

Shelba Braden, who sat on the Denny jury as well as the Johnson jury, testified that she heard evidence in the Denny trial that Johnson was at the Branson Inn with a weapon that had a scope affixed to it. Braden testified that she had no reason to disbelieve the witnesses in the Denny trial and that, based on the evidence presented at the Denny trial, she was firmly convinced that Johnson had robbed the Branson Inn. Johnson v. State, 757 S.W.2d 607, 609 (Mo.App.1988).

Dorothy Powell, who also sat on both juries, testified that the Denny trial convinced her that Johnson had participated in the robbery because "that's what all the evidence pointed to." Id. Donna David sat on the Denny jury and the Johnson venire, but was stricken from the Johnson jury with a preemptory challenge. David testified that Johnson was identified at the Denny trial as one of the robbers and that the Denny trial convinced her that Johnson was guilty of the robbery. Id. The two remaining Denny jurors who also served on the Johnson jury had little recollection of the trials. It also should be noted that Johnson was brought into the courtroom during the Denny trial handcuffed and under guard. Johnson v. Armontrout, No. 90-3426-CV-S-2, slip op. at 3 (W.D.Mo. June 18, 1991).

Despite this evidence, the circuit court relied on the statement by the Missouri Court of Appeals on Johnson's direct appeal that no evidence of juror bias was shown. The circuit court, therefore, rejected Johnson's claims, concluding that Johnson failed to prove prejudice. Johnson, 757 S.W.2d at 609.

The Missouri Court of Appeals affirmed, ruling that the ineffectiveness issue was decided on direct appeal and, therefore, could not be revisited in a Rule 27.26 motion. Id. at 610. The appeals court went further, however, and ruled that even if the claim was properly presented, it would fail. The court concluded that since the evidence at the Denny and Johnson trials overlapped, the recycled jurors failed to learn anything different at the Denny trial. Johnson, therefore, was not prejudiced. Id. at 612. ⁴

Johnson filed the present habeas petition on September 21, 1990. The petition alleged Johnson was deprived of a fair and impartial jury because four jurors who found Denny guilty also sat on Johnson's trial. The petition further alleged Johnson was denied effective assistance of counsel because his attorney did not attempt to strike the recycled jurors for cause, and failed to inform Johnson of his right to strike the recycled jurors for cause.

The district court granted the writ, concluding that bias of the recycled jurors deprived Johnson of his right to an impartial jury, and that counsel was ineffective in failing to strike the biased jurors. Johnson v. Armontrout, No. 90-3426-CV-S-2, slip op. at 7 (W.D.Mo. June 18, 1991).

II.

A. Right to an Impartial Jury

The Sixth Amendment guarantees the right to an impartial jury to all persons accused of crimes. ⁵ The Fourteenth Amendment extended this guarantee to defendants tried in state courts. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968). While Johnson received a trial, his constitutional guarantee has not been granted if any member of the jury was biased. Rogers v. McMullen, 673 F.2d 1185, 1190 (11th Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 740, 74 L.Ed.2d 961 (1983); United States v. Silverman, 449 F.2d 1341, 1344 (2d Cir.1971), cert. denied, 405 U.S. 918, 92 S.Ct. 943, 30 L.Ed.2d 788 (1972); Ford v. United States, 201 F.2d 300, 301 (5th Cir.1953); Presley v. State, 750 S.W.2d 602, 607 (Mo.App.) (en banc), cert. denied, 488 U.S. 975, 109 S.Ct. 514, 102 L.Ed.2d 549 (1988). While a federal court's oversight authority regarding non-constitutional state trial court errors justifiably is limited, this court is obligated to correct an error by even a state's highest court "insofar as it deals with the application of the United States Constitution or laws to the facts in question." Sumner v. Mata, 449 U.S. 539, 543-44, 101 S.Ct. 764, 767, 66 L.Ed.2d 722 (1981); see also Rogers, 673 F.2d at 1189 (federal court must award habeas relief to state court prisoner who can demonstrate a member of his jury was biased or incompetent).

Our initial inquiry focuses on whether bias should be presumed when a juror convicts one defendant and then is empaneled on the jury hearing the case of a second defendant charged with the same crime, or whether the defendant in the second trial must prove actual bias. The Supreme Court has determined that the remedy for allegations of juror bias is a hearing at which the defendant has the opportunity to prove actual bias. Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 945, 71 L.Ed.2d 78 (1982). In Phillips, the Court refused to imply bias to a juror who applied for a job with the district attorney's office during the time he served on a criminal jury.

Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Such determinations may properly be made at a hearing like that ordered in Remmer ⁶ and held in this case.

Id. at 217, 102 S.Ct. at 946 (footnote added).

This court held in an early case that the mere presence of recycled jurors does not require reversal in every instance. In Lett v. United States, 15 F.2d 690 (8th Cir.1926), a jury convicted Zola Lett of possession and sale of morphine. Later that afternoon, members of Zola's jury were included in the venire called for the trial of her husband on similar charges. Lett's attorney sought additional preemptory strikes ⁷ to remove eight jurors who had sat on Zola Lett's trial. The request was denied and Lett was convicted. The Eighth Circuit reversed the conviction, finding that the "presumption of prejudice is too great to be ignored." Id. at 691. Nevertheless, the court failed to articulate a per se rule implying bias to recycled jurors. "[W]e do not think the course of justice in all cases should be delayed because of the unavoidable presence in court of jurors during the trial of cases thus related, unless the prejudice claimed is sufficiently apparent." Id.

The...