Rhoden v. Morgan

• Decision Date: 18 August 1994
• Docket Number: 3:91-0663.,No. 3:91-0553,3:91-0553
• Citation: 863 F. Supp. 612
• Parties: Lawtis Donald RHODEN v. Jack MORGAN, et al.
• Court: U.S. District Court — Middle District of Tennessee

863 F. Supp. 612

Lawtis Donald RHODEN v. Jack MORGAN, et al.

Nos. 3:91-0553, 3:91-0663.

United States District Court, M.D. Tennessee, Nashville Division.

August 18, 1994.

COPYRIGHT MATERIAL OMITTED

William J. Marett, Nashville, TN, Gary L. Anderson, Knoxville, TN, for petitioner.

C. Mark Fowler, Gordon W. Smith, Nashville, TN, for respondents.

MEMORANDUM

JOHN T. NIXON, Chief Judge.

Pending before the Court is Petitioner's consolidated Petition for Writ of Habeas Corpus (Doc. Nos. 1, 2). On May 9, 1994, the Court held an evidentiary hearing and heard oral argument from the parties on several of Petitioner's claims. For the reasons stated below, the Court unconditionally grants in part the writ of habeas corpus.

I. BACKGROUND

Petitioner Lawtis Donald Rhoden is currently a state prisoner confined in Turney Center Prison in Only, Tennessee. On October 23, 1985, Petitioner was convicted of rape and use of a minor for obscene purposes in violation of Tenn.Code Ann. § 39-6-1137. Petitioner was sentenced to twenty years on each offense to be served consecutively.

On July 17, 1991, Petitioner filed a federal petition for writ of habeas corpus in the case styled, Lawtis Donald Rhoden v. Jack Morgan, Warden, State of Tennessee, and Charles W. Burson, Attorney General of the State of Tennessee, No. 3:91-0553 (Doc. No. 2). Petitioner filed a second petition on August 19, 1991, in the case styled, Lawtis Donald Rhoden v. Jack Morgan, Warden, State of Tennessee, and Charles W. Burson, Attorney General of the State of Tennessee, No. 3:91-0663 (Doc. No. 1). By Order entered on January 13, 1992 (Doc. No. 13), the Court consolidated Petitioner's habeas corpus pleadings. In his consolidated petition, Petitioner alleges the following nine claims:

(1) Petitioner was convicted of a state obscenity statute that was unconstitutionally vague, overbroad, and indefinite on its face and as applied to him in violation of the First, Fifth, and Fourteenth Amendments to the United States Constitution;

(2) Petitioner's state conviction for Count II, a violation of Tenn.Code Ann. § 39-6-1137, cannot be sustained as a matter of law because the evidence was insufficient under First and Fourteenth Amendment standards;

(3) Petitioner was denied a fundamentally fair trial by an impartial jury in violation of the First, Sixth, and Fourteenth Amendments to the United States Constitution due to juror misconduct and bias;

(4) Petitioner was denied a fundamentally fair trial by an impartial jury in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution due to the improper admission of a prior uncharged rape during the State's case-in-chief;

(5) Petitioner was denied a fundamentally fair trial by an impartial jury and the effective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution because the trial court precluded him from raising his "consent" defense during voir dire and opening statements;

(6) Petitioner was denied a fundamentally fair trial by an impartial jury in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution due to the State's prosecutorial misconduct and improper closing arguments;

(7) Petitioner was denied constitutionally effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution;

(8) Petitioner was denied a fundamentally fair trial by an impartial jury in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution due to the cumulative effect of the errors alleged herein.

(9) Petitioner was denied constitutionally effective assistance of appellate counsel due to the failure of appellate counsel to exhaust issues now subject to the defense of failure to exhaust remedies and/or procedural default.

By Memorandum and Order entered on January 27, 1994 (Doc. Nos. 62, 63), the Court determined that Petitioner's second, seventh, and ninth claims have been properly presented to the state courts, and that Petitioner's first claim is not procedurally defaulted because the state court has not barred the claim on an adequate and independent state law ground. (Mem., Doc. No. 62, at 13, 14.) In addition, the Court found that Petitioner's third claim is excepted from state exhaustion requirements on the grounds that state remedies were unavailable to Petitioner at the time he filed his federal petition, and that Petitioner is not now required to exhaust state remedies because any state remedies he may have are merely speculative at this time. (Id. at 11-13.) The Court determined that Petitioner's fourth, fifth, sixth, and eighth claims are subject to procedural default unless Petitioner demonstrates cause and prejudice through, in Petitioner's case, constitutionally ineffective assistance of trial counsel. (Id. at 20.) The Court reserved judgment on Petitioner's ninth claim, alleging ineffective assistance of appellate counsel. (Id. at 27.)

On May 9, 1994, the Court held an evidentiary hearing on Petitioner's juror misconduct claim (claim three) and heard oral argument on Petitioner's claims alleging that he was convicted under an obscenity statute on the basis of constitutionally insufficient evidence (claim two); that the obscenity statute under which Petitioner was convicted was unconstitutionally applied to him (claim one); and that Petitioner received constitutionally ineffective assistance of trial counsel (claim seven).

II. ANALYSIS

A. Juror Misconduct

A criminal defendant has a constitutional right to a fair trial before an impartial trier of fact. Irvin v. Dowd, 366 U.S. 717, 721-22, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). See also Morgan v. Illinois, 504 U.S. ___, ___, 112 S.Ct. 2222, 2229, 119 L.Ed.2d 492 (1992) (due process demands that jury stand impartial and indifferent to extent commanded by Sixth Amendment). Voir dire serves to protect an individual's right to a fair trial "by exposing possible biases, both known and unknown, on the part of potential jurors." McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 849, 78 L.Ed.2d 663 (1984). Notably, "a prospective juror's failure to disclose material information is grounds for a new trial if it demonstrates bias." United States v. Patrick, 965 F.2d 1390, 1399 (6th Cir.1992), cert. denied, 506 U.S. ___, 113 S.Ct. 376, 121 L.Ed.2d 287 (1992). Bias may be inferred if a juror deliberately conceals information. Id. However, if a juror does not deliberately conceal information, actual bias must be shown. Id.

In the instant action, Petitioner alleges that during voir dire juror Susan Palinosky deliberately concealed the fact that she had been the victim of a sexual assault in 1982, several years prior to Petitioner's trial. Specifically, Petitioner points out that each prospective juror was asked if he or she had ever been the victim of a crime, and that Ms. Palinosky had responded falsely, "No, sir." Petitioner argues that bias may be inferred from Ms. Palinosky's failure to disclose her earlier experience.

At the May 9, 1994 evidentiary hearing before the Court, Ms. Palinosky testified that in 1987, approximately two years after Petitioner's trial, she realized that what had happened to her in 1982 constituted a crime. (Hrg.Tr., Doc. No. 77, at 19.) However, Ms. Palinosky acknowledged that when she had denied having been the victim of a crime during the voir dire examination in 1985, she had in fact answered honestly and to the best of her knowledge at that time. (Id. at 30.) Moreover, Ms. Palinosky revealed that in an effort to be impartial she had asked each juror to disclose his or her opinion about Petitioner's guilt or innocence. (Id. at 34-35.) Ms. Palinosky stated that she had attempted to be objective and had not tried to influence the other jurors in any way during the trial or in the course of jury deliberations. (Id. at 35-36.)

On the basis of Ms. Palinosky's testimony, the Court finds that Ms. Palinosky did not deliberately conceal the fact that she had been the victim of a crime, and that bias may not be inferred from her failure to disclose the 1982 incident during voir dire. Furthermore, although Ms. Palinosky believes in retrospect that her experiences in 1982 may have rendered her unable to be impartial during Petitioner's 1985 trial, the Court concludes that Ms. Palinosky consciously attempted to put aside bias and to be partial and objective. Petitioner has failed to demonstrate actual bias, and the Court dismisses Petitioner's juror misconduct claim.

B. Insufficient Evidence

Petitioner was indicted on April 19, 1985, on counts of rape (Count I) and using a minor "to engage in posing or modeling in performance of sexual conduct to-wit, exhibition of the female genitals for the purpose of preparing photographs which were obscene in violation of Section 39-6-1137 Tennessee Code Annotated...." (Count II). (Ex. A, Pet'r App.Br.Supp.Pet. Habeas Corpus, Attach. Doc. No. 3.) After Petitioner was indicted, but prior to trial, § 39-6-1137(b)(9) was limited by amendment so as merely to prohibit the "lewd" exhibition of genitals. Petitioner claims that his conviction for Count II, violating § 39-6-1137(b)(9), cannot be sustained as a matter of law because the evidence was constitutionally insufficient.

As the Court determined in its January 27, 1994 Memorandum (Doc. No. 62), the allegedly objectionable photographs which led to Petitioner's conviction under § 39-6-1137 were never introduced to the trial court judge or jury, or submitted at any post-conviction proceedings. See Rhoden v. Morgan, 846 F.Supp. 598, 608, 611 (M.D.Tenn. 1994). There was no trial testimony regarding the actual content of the photographs. The minor involved testified that she was never completely nude when any photograph was taken, but was partially nude and wore only a bra while some of the pictures were being taken. (Trial Tr.,...