Locks v. Sumner

• Decision Date: 05 April 1983
• Docket Number: No. 82-5508,82-5508
• Citation: 703 F.2d 403
• Parties: Erick Orlando LOCKS, Petitioner-Appellant, v. G.W. SUMNER, Warden, California State Prison at San Quentin, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 403

703 F.2d 403

Erick Orlando LOCKS, Petitioner-Appellant, v. G.W. SUMNER, Warden, California State Prison at San Quentin,

Respondent-Appellee.

No. 82-5508.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 3, 1983.

Decided April 5, 1983.

Gregory Alarcon, Deputy Atty. Gen., Los Angeles, Cal., for respondent-appellee.

Charles M. Sevilla, Los Angeles, Cal., for petitioner-appellant.

Appeal from the United States District Court for the Central District of California.

Before ANDERSON and FARRIS, Circuit Judges, and SOLOMON, ^* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

Erick Locks appeals the denial of his petition for habeas corpus. He argues that his California conviction on two counts of murder is constitutionally tainted for three reasons: (1) The state trial judge improperly asked the jury foreman about the results of the jury's balloting; (2) his Sixth Amendment right to counsel was violated by the refusal of the trial judge to appoint advisory counsel; and (3) the trial court failed to suppress illegally seized evidence. We affirm.

I. BACKGROUND

In 1976, Locks pled not guilty to two counts of first-degree murder brought in California state court. As will be discussed more thoroughly below, Locks requested he be allowed to proceed in propria persona with his appointed attorney acting as co-counsel. After the state trial judge denied the request to proceed in such fashion, Locks voluntarily waived his right to counsel, dismissed his appointed counsel, and proceeded on his own. Just before trial began, Locks renewed his request for additional counsel. The exact nature of his request is in dispute: Locks argues he requested either co-counsel or, in the alternative, advisory counsel; the State of California asserts that Locks was simply renewing his request for co-counsel. The judge indicated that he would be glad to call Locks' original counsel back to try the case. Locks declined the offer, stating he wanted to represent himself as well. The judge denied the request.

During the jury deliberations and just before excusing the jury for the weekend, the trial judge asked the foreman what the numerical division of the jury was at its last ballot. ¹ After convening the next Monday, the jury returned a guilty verdict on both counts of murder.

Locks appealed the conviction to the California Court of Appeals. With one justice dissenting, the court affirmed the judgment in an unpublished decision. A petition for rehearing before the same court was denied. Locks then filed a petition for rehearing before the California Supreme Court. The petition was denied, as was his subsequent petition for certiorari before the United States Supreme Court.

In 1980, Locks filed his original petition for habeas corpus before the United States District Court for the Central District of California. It was dismissed for failure to exhaust state remedies on the jury inquiry issue. Locks then returned to the California appellate courts and requested hearings on that issue. The requests were denied.

The petition for habeas relief which forms the basis of this appeal was filed April 8, 1981. On April 6, 1982, the district court, David V. Kenyon presiding, entered judgment against Locks on the recommendation of Magistrate Venetta S. Tassopulos. Locks filed a timely notice of appeal.

II. DISCUSSION

As indicated, Locks asserts that three constitutional violations taint his conviction: the trial judge's inquiry of the jury; the failure to appoint advisory counsel; and the failure to suppress illegally seized evidence. The jury inquiry issue, being of first impression in this circuit, presents the most substantial question on appeal. The other two issues admit of easier resolution.

A. Inquiry into the Jury's Numerical Division

The text of the inquiry by the trial judge is reproduced in footnote 1. At first glance, the question would appear harmless. Nonetheless, an inquiry such as this was held by the Supreme Court to be prejudicial per se and ground for reversal in Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). The rationale of the Court's holding was that such questioning serves no useful purpose but has a general tendency to coerce. 272 U.S. at 450, 47 S.Ct. at 135, 71 L.Ed. at 346. Recently this court has held that such an inquiry is plain error. United States v. Noah, 594 F.2d 1303, 1304 (9th Cir.1979). Brasfield and Noah, however, involved the propriety of making this inquiry in federal trials. Neither the Supreme Court nor this circuit has held that the rule in Brasfield is a necessary component of one's Sixth Amendment right to an impartial jury, applicable to the state courts by virtue of the Fourteenth Amendment. Locks, of course, believes the rule should be just that. The state counters that the holding in Brasfield was merely an exercise of the Supreme Court's supervisory power over the conduct of federal trials. The district court, adopting the magistrate's recommendation, agreed with the state.

Locks' strongest support for his argument is the language in Brasfield, in which Justice Stone stated: "We deem it essential to the fair and impartial conduct of the trial, that the inquiry itself should be regarded as ground for reversal." 272 U.S. at 450, 47 S.Ct. at 135, 71 L.Ed. at 346. While this language does appear to have constitutional underpinnings, three circuit courts of appeals have found Brasfield to involve only a supervisory rule, not a constitutional mandate. ² Ellis v. Reed, 596 F.2d 1195 (4th Cir.), cert. denied, 444 U.S. 973, 100 S.Ct. 468, 62 L.Ed.2d 388 (1979); Cornell v. Iowa, 628 F.2d 1044 (8th Cir.1980), cert. denied, 449 U.S. 1126, 101 S.Ct. 944, 67 L.Ed.2d 112 (1981); United States ex rel. Kirk v. Director, Department of Corrections, 678 F.2d 723 (7th Cir.1982).

All three circuit courts relied on Burton v. United States, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482 (1905), to temper the strong language used in Brasfield. In Burton the court first announced the rule that trial judges should not make inquiries into jury balloting. This statement was, however, dicta. Subsequent to Burton, the federal courts still differed on whether an inquiry into the division of the jury was per se reversible error. In Brasfield Justice Stone made it clear that the Court meant what it had said and the failure of some of the lower federal courts to follow Burton's dicta arguably led to the emphatic language he used. Ellis, 596 F.2d at 1198; Cornell, 628 F.2d at 1047; Kirk, 678 F.2d at 726. These circuit courts also found support for their position in the language in Burton in which the court stated: "[W]e do not think that the proper administration of the law requires such knowledge or permits such a question on the part of the presiding judge." 196 U.S. at 308, 25 S.Ct. at 250, 49 L.Ed. at 491. Relying on this language, and the relationship of Burton to Brasfield, these circuit courts concluded the rule was only supervisory in nature.

We agree with our fellow circuit courts. Recently, the Supreme Court has held that the federal rule governing the time at which double jeopardy attaches in a jury trial is binding upon the states. Crist v. Betz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). The issue, in the words of Justice Stewart, was "whether the federal rule is an integral part of the constitutional guarantee." 437 U.S. at 32, 98 S.Ct. at 2159, 57 L.Ed.2d at 29. We are not persuaded that the rule in Brasfield is integral to either one's right to an impartial jury or, more generally, a fair trial. Justice Stone recognized that the effect of inquiring into the status of jury balloting "will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive." Brasfield, 272 U.S. at 450, 47 S.Ct. at 135, 71 L.Ed. at 346. "But, while this difficulty in determining actual prejudice may make an outright ban on the inquiry itself entirely reasonable, it does not make such a rule constitutionally mandated." Kirk, 678 F.2d at 727.

Although we decline to hold that the rule in Brasfield is of constitutional dimension, we do not wish to imply that an inquiry into the jury's balloting will never infringe on a defendant's right to an impartial jury and fair trial. This would occur if the trial judge's inquiry would be likely to coerce certain jurors into relinquishing their views in favor of reaching a unanimous decision. Cornell, 628 F.2d at 1048; Kirk, 678 F.2d at 727; see also United States v. Akbar, 698 F.2d 378, 380 (9th Cir.1983). To determine whether such coercion of the jury's deliberative process occurred, the inquiry by the judge must be viewed in light of the context in which it was made, not in isolation. Ellis, 596 F.2d at 1200; see Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368, 373 (1973) (The Court declined to decide that the use of an instruction stating that every witness is presumed to tell the truth is per se constitutional error; instead it must be viewed in the context of all the instructions to determine whether the defendant was deprived of a fair trial); see also Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957, 958 (1965). Here, the circumstances in which the inquiry was made do not persuade us that the jury was in any way coerced: The jury was about to be dismissed for the weekend and the judge may have been wondering whether it was close to agreement, making it best to continue deliberations; he made a simple and, on its face, uncoercive inquiry; he did not ask whether the jurors in the majority were for acquittal or a guilty verdict; the judge did not follow the inquiry with any statement imploring the jury to come to a decision; and the jury was not sent back to continue deliberations, but was dismissed for the weekend. We therefore affirm ...