Prewitt v. Goeke, 92-1080

• Decision Date: 08 December 1992
• Docket Number: No. 92-1080,92-1080
• Citation: 978 F.2d 1073
• Parties: Patricia Ann PREWITT, Appellant, v. Bryan GOEKE; William Turner, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1073

978 F.2d 1073

Patricia Ann PREWITT, Appellant, v. Bryan GOEKE; William Turner, Appellees.

No. 92-1080.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 16, 1992.

Decided Nov. 4, 1992.

Rehearing Denied Dec. 8, 1992.

James R. Wyrsch, Kansas City, Mo., argued (Michael P. Joyce, on the brief), for appellant.

Stephen David Hawke, Jefferson City, Mo., argued (William L. Webster, on the brief), for appellees.

Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BEAM, Circuit Judge.

BEAM, Circuit Judge.

Patricia Ann Prewitt, a Missouri prisoner, appeals an order entered in the district court ¹ denying her 28 U.S.C. § 2254 petition for writ of habeas corpus. For reversal, Prewitt argues that (1) during jury deliberations, the bailiff had ex parte communications with the jury which violated her constitutional rights to confrontation and to a fair trial, (2) the state denied her due process by withholding evidence after Prewitt made specific requests for discovery, and (3) her trial counsel was constitutionally ineffective. For the following reasons, we affirm the decision of the district court.

I. BACKGROUND

Prewitt was convicted by a jury in the Circuit Court of Pettis County, Missouri, for the 1984 murder of her husband. Following the verdict, Prewitt moved for a new trial. After an evidentiary hearing, the circuit court denied Prewitt's motion. Prewitt's conviction was affirmed by the Missouri Court of Appeals in State v. Prewitt, 714 S.W.2d 544 (Mo.Ct.App.1986). She is currently serving a sentence of life imprisonment without possibility of probation or parole for fifty years.

On February 11, 1988, Prewitt filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Western District of Missouri. The court dismissed Prewitt's petition without prejudice to enable her to exhaust state remedies. Prewitt then filed a motion seeking post-conviction relief in the Circuit Court of Pettis County, Missouri, under Rule 29.15 of the Missouri Rules of Criminal Procedure. The circuit court held a second evidentiary hearing on November 14, 1988. On December 8, 1988, the circuit court denied Prewitt post-conviction relief. Prewitt v. State, No. CV488-352CC Findings of Fact and Conclusions of Law (Circuit Court of Pettis County, Missouri, Dec. 8, 1988). The judgment denying state post-conviction relief was affirmed on appeal. Prewitt v. State, 781 S.W.2d 92 (Mo.Ct.App.1989).

On April 6, 1990, Prewitt filed the present petition for habeas corpus relief in the district court under 28 U.S.C. § 2254. She asserts substantially the same grounds for relief as those raised in her state Rule 29.15 motion. On August 19, 1991, the district court entered an order denying Prewitt's request for a writ of habeas corpus. Prewitt v. Goeke, No. 90-0339-CV-W-9 Order, 1991 WL 220273 (W.D.Mo. Aug. 19, 1991). On December 26, 1991, the district court entered an order granting Prewitt's motion for issuance of a certificate of probable cause for appeal under 28 U.S.C. § 2253 and Rule 22(b) of the Federal Rules of Appellate Procedure. This appeal followed.

II. DISCUSSION

A. Ex Parte Communications With The Jury

Prewitt first argues that during deliberations, the bailiff had ex parte communications with the jury, thereby violating her federal constitutional rights to due process and to confront witnesses. At the state court hearing on Prewitt's motion for a new trial, the parties stipulated that:

During deliberations the jury orally informed the bailiff that they were split and asked if they could speak to the Judge. (Although the officer herein referred to as bailiff was not the Court's bailiff but a deputy assisting him, the deputy was fulfilling the function as bailiff, and for reasons of communication, is referred to as such.)

Prior to counsel's reaching chambers, the court directed the bailiff to inform the jury that they could not speak with the Court and that they should continue their deliberations. This directive was also oral.

The bailiff went to the jury room where he modified the Court's direction by stating: "the Judge says try harder." This statement was made to the jury panel in the jury room as they were deliberating.

Appendix at 83. Prewitt argued in state court that the bailiff's ex parte communication entitled her to a new trial because it had a coercive effect on jury members. She argues here that this coercive effect violated her federal constitutional rights.

In ruling on Prewitt's motion, the state circuit court considered the weight of the evidence against Prewitt, the fact that the jury was polled immediately after the verdict, and the length of deliberations before and after the statement was made. The circuit court found "nothing in the present case that suggests that the jurors were in fact coerced to reach a guilty verdict because they were told to try harder." State v. Prewitt, No. CR484-5F Ruling on Defendant's Motion for New Trial at 5 (Circuit Court of Pettis County, Missouri, May 31, 1985). The circuit court's findings were affirmed on appeal. State v. Prewitt, 714 S.W.2d 544, 549 (Mo.Ct.App.1986). Relying on the state court's finding that the bailiff's ex parte communication did not have a coercive effect on the jurors, the district court held that the bailiff's remarks did not deprive Prewitt of a fair trial and did not violate her rights under the Fifth, Sixth, and Fourteenth Amendments. Prewitt v. Goeke, No. 90-0339-CV-W-9 Order at 16, 1991 WL 220273 (Aug. 19, 1991).

Prewitt contends that the district court erred in relying on the state court's findings because the issue of jury coercion is a mixed question of law and fact and because she did not receive a full, fair, and adequate hearing in the state court. Prewitt argues that she was denied an adequate hearing because at both the hearing on her motion for a new trial and at the hearing on her Rule 29.15 motion for collateral review the state court ignored a second statement allegedly made by the bailiff during deliberations. Two of five juror affidavits appended to Prewitt's motion for a new trial report that in addition to the bailiff's first statement, the jury foreman told the jurors that the bailiff said that the judge said that if they did not reach a verdict they would have to deliberate all night.

On habeas review, state court factual findings must be presumed correct under 28 U.S.C. § 2254(d). ² The section 2254(d) presumption of correctness frees the federal courts in habeas corpus actions from the responsibility of retrying factual issues that are more aptly determined by state courts in the first instance. Mixed determinations of law and fact are not entitled to the section 2254(d) presumption in federal habeas corpus actions. Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980). The presumption is reserved for questions which turn on "determinations of demeanor and credibility that are peculiarly within a trial judge's province." Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 854, 83 L.Ed.2d 841 (1985).

The Supreme Court has addressed the issue of deference to state court findings on ex parte communications with the jury and held that "[t]he substance of the ex parte communications and their effect on juror impartiality are questions of historical fact entitled to this [28 U.S.C. § 2254(d) ] presumption." Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983) (per curiam) (second emphasis added). It is a short step to extend this holding from determinations of juror impartiality to determinations of juror coercion. We decline Prewitt's invitation to join the Ninth Circuit in splitting hairs to evade the Supreme Court's holding. See Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir.1987). The trial judge has the opportunity to observe the jurors throughout trial and to observe the jurors while they are polled after the verdict. We agree with the Fifth Circuit that the trial judge is in a unique position to appraise the prejudicial effect of ex parte communications on the jury. Young v. Herring, 938 F.2d 543, 558 n. 8 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1485, 117 L.Ed.2d 627 (1992). Thus, the factual issue of whether jurors were coerced into a decision by ex parte communications "must be determined, in the first instance, by state courts and deferred to, in the absence of 'convincing evidence' to the contrary, by the federal courts." Rushen, 464 U.S. at 120, 104 S.Ct. at 456 (citation omitted). The district court did not err in applying section 2254(d) in the present case.

Prewitt argues that even if section 2254(d) applies to determinations of jury coercion generally, the district court erred in according the presumption of correctness to the state court's findings in her case because the state court ignored the bailiff's alleged statement that the jury would have to deliberate all night if they did not reach a decision. The presumption of correctness on habeas review does not apply to state court factual findings if "the applicant did not receive a full, fair, and adequate hearing in the State court proceeding." 28 U.S.C. § 2254(d)(6). According to Prewitt, the state court denied her a full, fair, and adequate hearing by failing to consider the two juror affidavits alleging that the bailiff said the jury would have to deliberate all night. She further contends that this statement violated her constitutional rights as a matter of law.

We do not reach the merits of Prewitt's claim because we find that it is procedurally barred. A claim not raised in the state courts will not be considered by a federal habeas court unless the petitioner can demonstrate cause for her previous failure to raise the claim and prejudice. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977).

Although Prewitt appended the juror affidavits in...