Kitt v. Clarke, 90-1213NE
| Decision Date | 25 April 1991 |
| Docket Number | No. 90-1213NE,90-1213NE |
| Parties | Wesley KITT, Appellant, v. Harold CLARKE, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert C. Perry, Indianapolis, Ind., for appellant.
Terri M. Weeks, Lincoln, Neb., for appellee.
Before ARNOLD and MAGILL, Circuit Judges, and BATTEY, * District Judge.
Wesley Kitt appeals the district court's 1 dismissal of his petition for a writ of habeas corpus. Kitt argues that he received ineffective assistance of counsel because his court-appointed trial counsel failed to request that the voir dire examination, opening statements and closing arguments be recorded; failed to object to the trial court's decision to allow the jury to separate during deliberation; and failed to object to a reference to Kitt's race in the prosecution's closing argument. Kitt also argues that his court-appointed appellate counsel was ineffective for filing a four-page, pro forma brief. Because Kitt has failed to show how any of his appointed trial counsel's actions prejudiced him or how any of his appointed counsel's actions on direct appeal were so deficient that they fell below the objective standard of reasonableness, we affirm.
On January 11, 1988, Kitt's state court trial for theft by unlawfully taking property in excess of $1,000 began. At the end of the day, both parties rested, and agreed to jury instructions and verdict forms. Since neither the prosecutor nor Kitt's attorney requested that the jury voir dire examination, opening statements and closing arguments be recorded, the trial record consists only of the pretrial motions, witness testimony and evidence submitted during trial. The jury began deliberating on that same day. Sometime that evening, the judge entered the jury deliberation room and told the jurors they could go home for the night and that they should report back the following day to continue their deliberation. The following day the jury returned a guilty verdict. Kitt appealed his conviction, and the court appointed a different attorney to handle the appeal. Kitt's new attorney filed a four-page brief arguing that there was insufficient evidence to support the conviction. Kitt also filed two pro se briefs raising twenty-four additional issues. The appellate court affirmed Kitt's conviction.
While Kitt's direct appeal was pending, Kitt filed a motion to vacate and set aside his conviction pursuant to a Nebraska postconviction procedure statute. See Neb.Rev.Stat. Sec. 29-3001 et seq. (Reissue 1988). This motion was dismissed for lack of jurisdiction. Kitt then petitioned for state habeas corpus relief. The state court dismissed this petition on the ground that Kitt failed to "state facts which constitute illegal restraint." The Nebraska Supreme Court summarily affirmed the dismissal.
Kitt next filed a petition for habeas corpus relief in federal district court claiming, inter alia, ineffective assistance of trial and appellate counsel on appeal, 2 prosecutorial misconduct, and judicial misconduct. The petition was referred to a magistrate judge, 3 who granted Kitt's motion for appointment of counsel. Kitt's counsel amended the petition, to claim that trial counsel had been ineffective in failing to inform Kitt of his right to have the jury sequestered; failing to object to the trial court's decision to allow the jury to separate for the night without Kitt's consent; and failing to object to improper contact between the trial judge and the jury after deliberations had commenced. Counsel requested an evidentiary hearing on the ineffective assistance, prosecutorial misconduct, and judicial misconduct claims. Counsel also sought to expand the record to include three affidavits from jurors concerning the ex parte contact between the jury and the trial judge. The magistrate judge denied both of these requests and recommended denying the petition. The district court adopted his recommendation, and this appeal followed.
On appeal, Kitt raises only the ineffective assistance of counsel claim. He contends that his trial counsel was ineffective in failing to request that the voir dire examination, opening statements and closing arguments be recorded; failing to object to the trial judge's ex parte meeting with the jury after deliberations had begun; failing to object to misstatements of the evidence and inflammatory statements by the prosecutor during closing arguments; and failing to object to the separation of the jury after deliberations had begun. Kitt also contends that his appellate counsel on direct appeal was ineffective because he filed a four-page, pro forma brief that only addressed the sufficiency of the evidence. To sustain either claim of ineffective assistance of counsel, Kitt must show (1) that counsel's performance was deficient, and (2) that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Bolder v. Armontrout, 921 F.2d 1359, 1362 (8th Cir.1990). This standard applies to trial and appellate counsel ineffectiveness claims. 4
The strongest argument supporting Kitt's ineffectiveness claim involves the trial judge's ex parte communication with the jury in which he told them to go home for the night. Nebraska law requires juries in criminal cases to be sequestered during deliberations until a verdict is reached. Neb.Rev.Stat. Sec. 29-2022 (Reissue 1989). The Nebraska Supreme Court has held that the right to sequestration may only be waived by express agreement of counsel for both sides. State v. Robbins, 205 Neb. 226, 287 N.W.2d 55, 58 (1980). It also held that violation of this statutory right is reversible error and creates a presumption of prejudice with respect to the issue of improper communication during the jury separation. The prosecution has the burden of rebutting this presumption. Id. The judge at Kitt's trial did not obtain the consent of either party before he entered the jury deliberation room and dismissed the jury for the evening. Therefore, had Kitt's counsel objected to the jury separation, the error would have been preserved and the state would have had the burden of rebutting the presumptive prejudice caused by the separation.
Assuming, without deciding, that counsel's failure to object constitutes deficient performance under the first part of the Strickland test, we must then decide whether this mistake prejudiced Kitt's defense. This part of the Strickland test is not satisfied by the presumptive prejudice created by a violation of Sec. 29-2022. In Robbins, the Nebraska Supreme Court noted that the purpose of Sec. 29-2022 was to "prevent improper contacts or communications with or by jurors after submission of a criminal case." Robbins, 287 N.W.2d at 58. Consequently, a violation of the statute will not, by itself, justify reversal of a conviction. Id. at 59. The rebuttable presumption of prejudice created by a violation of Sec. 29-2022 is distinct from the Strickland prejudice. While the use of "prejudice" in Sec. 29-2022 analysis may create some confusion, Sec. 29-2022 prejudice does not alter the prejudice analysis required by Strickland. Under Strickland, Kitt has the burden of showing how his defense was prejudiced by his counsel's deficient performance. In this case, Strickland places the burden on Kitt to show that he would have prevailed on appeal because the state could not have overcome the rebuttable presumption of prejudice on the improper communication issue. Since there is no evidence on this issue, Kitt did not meet his burden, and his ineffectiveness claim fails.
The Ninth Circuit came to the same conclusion in Powell v. Spalding, 679 F.2d 163 (9th Cir.1982). In Powell, a trial judge permitted a jury to separate for the night and reconvene the following day without obtaining the express consent of the defendant as required by the state jury nonseparation statute. 5 The defendant filed a federal habeas petition claiming, inter alia, that the violation of the statute violated his due process right to a fair trial and that he received ineffective assistance of counsel. In...
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