Packer v. Hill
| Decision Date | 15 January 2002 |
| Docket Number | No. 00-57051.,00-57051. |
| Citation | 291 F.3d 569 |
| Parties | William PACKER, Petitioner-Appellant, v. Don HILL, Warden; Attorney General of the State of California, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Elizabeth Newman, Los Angeles, CA (argued) and Monica Knox, La Crescenta, CA (brief), for the petitioner-appellant.
Kenneth N. Sokoler, Deputy Attorney General, Los Angeles, CA, for the respondents-appellees.
Appeal from the United States District Court for the Central District of California; Harry L. Hupp, District Judge, Presiding. D.C. No. CV-96-04957-HLH.
Before PREGERSON, REINHARDT, and SILVERMAN, Circuit Judges.
ORDERPetitioner-Appellant William Packer's request for clarification of the remand order is granted. The opinion filed January 15, 2002 is amended as follows:
1. On the second line from the bottom of slip opinion 644 , "returned verdicts" should be replaced with "returned sealed verdict forms to the court."
2. The third and fourth sentences of the first full paragraph of slip opinion page 663 should be deleted and replaced with the following (including footnote 16):
Because the jury was considering both the murder and attempted murder counts when this coercion occurred, we conclude that the judge's coercion manifestly had a "substantial and injurious effect" on the jury's verdicts on these counts. Brecht, 507 U.S. at 637, 113 S.Ct. 1710, 123 L.Ed.2d 353.16 We therefore reverse the district court's denial of the writ of habeas corpus and remand with instructions to grant the writ as to Packer's murder and attempted murder convictions.
[16] We disagree with the prosecution's contention that habeas relief should only extend to the murder charge because the jury reached a verdict on the attempted murder charge before the juror coercion began. To the contrary, Foreman Wkye told Judge Phelps and counsel that the jury was continuing to deliberate about the attempted murder charge (count 2) on the afternoon of Friday, May 15. See ER 42, 110-11. We also disagree with Packer's contention that habeas relief should extend to all of the charges he was convicted of committing because none of the verdicts was final when the juror coercion occurred. Sealed verdict forms on all but the murder and attempted murder charges were submitted to the court before the juror coercion occurred, and there is no indication in the record that any of the jurors wavered in their votes on these charges.
3. On slip opinion page 665 , the remainder of the majority opinion below the heading "Conclusion" should be deleted and replaced with the following:
While we agree with the district court's rejection of Packer's leg brace claim, we reverse its decision to deny the writ of habeas corpus with respect to the murder and attempted murder convictions, because we uphold Packer's juror coercion claim as to those counts. As to the remaining counts on which Packer was convicted, we affirm the denial of the writ. Accordingly, we remand to the district court for the granting of an appropriate writ of habeas corpus on the murder and attempted murder counts.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
In 1992, a California state jury convicted William Packer ("Packer") of one count of second degree murder, one count of attempted murder, two counts of attempted robbery, two counts of assault with a deadly weapon, and one count of assault with a firearm. The jury acquitted Packer on ten other counts.
After exhausting his claims in state court,1 Packer timely filed a federal habeas corpus petition. Magistrate Judge Margaret Nagle prepared a report ("Report") recommending that Packer's petition be denied. District Judge Harry L. Hupp adopted Magistrate Judge Nagle's Report, but granted Packer a certificate of appealability on two of Packer's claims: that the state trial judge violated his Fourteenth Amendment right to due process by coercing the jury into rendering a guilty verdict, and that the state trial judge violated Packer's Sixth and Fourteenth Amendment rights by ordering him to wear a concealed leg brace at trial that caused Packer pain and prevented him from straightening his leg. Because we hold for Packer on the first claim, we reverse the district court and remand with instructions to grant the writ of habeas corpus.2
On May 12, 1992, after over twenty hours of deliberation, and after the jury had returned sealed verdict forms to the court on all but the murder and attempted murder charges, Juror Eve Radcliff ("Juror Radcliff") wrote the judge, asking to be dismissed "[d]ue to health problems." Judge Phelps and Juror Radcliff then met outside the presence of the defendant and the attorneys. The following conversation ensued:
Radcliff: Well, since I wrote that letter I have been thinking over things a little bit and I think maybe I should — see, these are some very serious charges.
Judge: They certainly are. I don't want to know how they been voted on. I don't want to know how they been voted on.
Radcliff: Certainly not, your Honor. But I can't — because of the seriousness of the charges, I can't make snap decisions. And just as in your instructions you stated to us certain things to practice in deliberations. I was beginning to feel a little burned out.
Radcliff: Yeah.
....
Judge: [Y]ou are going to take off Thursday and we're going to allow that. So you think you can hold out just a little bit longer?
Radcliff: Yes.
Judge: I really appreciate it. Otherwise, they have to start deliberations all over again with another person.3
Radcliff: That's what I understand.
(Emphasis supplied).
The next day, May 13, Judge Phelps received a note from the jury foreman, Richard Wyke ("Foreman Wyke"). Foreman Wyke wrote:
I believe we have reached a state where we can no longer deliberate. One juror, Eve Radcliff, does not appear to be able to understand the rules as given by you. I have been approached by nearly all my fellow jurors questioning her ability to understand the rules and her ability to reason. I feel that if we continue we will end up as a hung jury, not based on facts and evidence, but one person's inability to reason or desire to be unreasonable.
Judge Phelps read the note aloud in open court, in the presence of the attorneys, the defendant, and all of the jurors. Judge Phelps then asked Foreman Wyke whether the jury was deliberating. Wyke responded that they were "just having the same conversation over the same issue time and time again." Judge Phelps asked whether the dispute was factual. Wyke responded that Judge Phelps then explained:
The juror has a right to do that, as you all know. They have a right to disagree with everybody else. But they do not have a right to not deliberate. They must deliberate and follow the rules and laws as I state it to them.
After more discussion, Judge Phelps said:
Judge: The next question I have for you, I just want two numbers and that's all. I want to know nothing else but two numbers. I'll ask you this. In your last ballot what was the ballot? What was the count? Don't tell me for or against, just numbers.
Wyke: I know. The last one was 11 to 1.
Judge: 11 to 1.
Judge: The one before that was 10 and 2.
Judge: Do you think that further deliberations might help. I think you're off tomorrow, are you not?
Wyke: Yes.
Judge: Do you think if you take off now and come back Friday you might be able to make further progress? ....
Wyke: It comes down to interpreting.
Judge: It's been a long time for you people.
Wyke: Yes. We are getting tired of each other. It comes down to interpreting the laws as given to us, and if one person's interpretation is inflexible in their view, I don't know that it will do us any good.
Radcliff: Or different.
Judge: Has the person been deliberating? And discussing —
Wyke: Yes. I'm not questioning that. We might give it a shot and come back Friday morning. If it continues we are going to be hung.
Judge: If you do that, then what you're saying to me is there's a possibility you could reach a verdict, but let's take a little time off. That might help? I don't think it would hurt.
(Emphasis supplied). Jurors then began asking questions about the deliberative process and the following conversation ensued:
Radcliff: Was there something regarding morals in the instructions that you gave us?
Judge: I don't think so. No.
Radcliff: You cannot give us an interpretation of the law.
Judge: No. I cannot do that.
Radcliff: It's up to us individually to interpret the law and apply it.
Judge: What you do is — like I think what the instructions were — you apply the facts to the law and you arrive at a decision. The law is right there, and I think elements of the law was given to you in those instructions. They do this or not do this? Was it proven beyond a reasonable doubt? This element, this element, this element? If they did and you find unanimously they did that, you must follow the law and find them either guilty or not guilty of that charge.
(Emphasis supplied). At this point, defense counsel objected and, in a side bar, said that Judge Phelps was misstating the instructions and improperly "instructing the jury ... as to their manner of deliberation." Defense counsel then asked that Judge Phelps instruct the jury only that they are "to follow the law as I give it to you and to refrain from explaining further what that instruction might mean in practice." The prosecutor offered that Juror Radcliff's comments reflected that she was not going to follow the law. Judge Phe...
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