Rhoden v. Rowland

• Decision Date: 29 November 1993
• Docket Number: No. 91-56350,91-56350
• Citation: 10 F.3d 1457
• Parties: Lawtis Donald RHODEN, Petitioner-Appellant, v. James ROWLAND, Director, California Department of Corrections, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1457

10 F.3d 1457

Lawtis Donald RHODEN, Petitioner-Appellant, v. James ROWLAND, Director, California Department of Corrections, et al., Respondents-Appellees.

No. 91-56350.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 1, 1993.

Decided Nov. 29, 1993.

Carl R. Katz, Denise Meyer and Charles D. Weisselberg, The Law Center, University of Southern California, Los Angeles, CA, for petitioner-appellant.

David A. Warshaw, Deputy Atty. Gen., Los Angeles, CA, for respondents-appellees.

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

Before SCHROEDER, THOMPSON and O'SCANNLAIN, Circuit Judges.

SCHROEDER, Circuit Judge:

Lawtis Donald Rhoden appeals the district court's dismissal of his habeas corpus petition challenging his sentence and conviction in California state court. We reverse and remand for an evidentiary hearing to determine whether appellant's shackling at trial was prejudicial. We affirm on appellant's other contentions.

Rhoden was convicted after a jury trial in the Orange County California Superior Court of one count of rape, in violation of Cal.Penal Code Sec. 261(2); one count of penetration with a foreign object, in violation of Cal.Penal Code Sec. 289(a); and one count of sexual battery, in violation of Cal.Penal Code Sec. 243.4. The central issue at trial was whether there was consent to the sexual conduct.

Shackling

Rhoden's legs were shackled throughout the trial, and as the California Court of Appeal subsequently ruled, without adequate justification. The principal issue in this habeas proceeding is whether the shackling was prejudicial, and this issue in turn depends on whether the jury saw the shackles.

Counsel for Rhoden objected to the shackles. During jury selection, Rhoden told the court that he wanted to turn his chair and look at the prospective jurors, but that when he did so they could see his leg chains. Counsel informed the trial court that he had asked an investigator, Dan Watkins, to sit in the jury seats; Watkins stated that "he could sit there and see clearly Mr. Rhoden's shackles."

Rhoden's direct appeal and state petition for habeas relief were combined in the California Court of Appeal. At that point, Rhoden moved to augment the record to include

[t]he jury list of those persons disclosed at page 362 of the Clerk's Transcript who determined the case along with their addresses and/or phone numbers. It may be necessary to interview the jurors to determine whether the verdict can be impeached because of the impact of the shackling of appellant.

This motion was denied without comment. On appeal, Rhoden presented his declaration that he had seen the jurors looking at the shackles, as well as an affidavit from the investigator who had seen the shackles from the jury seats.

The California Court of Appeal ruled that the trial court abused its discretion in ordering the leg shackles, 216 Cal.App.3d 1242, 265 Cal.Rptr. 355. The Court of Appeal ruled that the trial court's decision did not meet the showing of "manifest need" for restraints under People v. Duran, 16 Cal.3d 282, 290-91, 127 Cal.Rptr. 618, 545 P.2d 1322 (1976). It found that the trial court had relied upon Rhoden's status as a prisoner serving time on other charges, his prior convictions and the pending charges, and his failure to cooperate with deputies. None of these factors was sufficient to demonstrate "manifest need." In particular, the court noted that Rhoden had not engaged in any disruptive behavior and had not expressed an intention to escape or to disrupt trial. However, it then ruled that the error was harmless because "[n]othing in the record establishes any jurors actually saw the shackles." The Court of Appeal rejected Rhoden's declaration and the investigator's affidavit as "too speculative and vague to warrant serious consideration."

In his petition for a writ of habeas corpus in federal district court, Rhoden challenged the state appellate court's findings of fact and the conclusion of law that the shackling was not prejudicial. He offered additional evidence that the jurors had seen the shackles. In an affidavit, attorney Stephen Buckley, who represented Rhoden in the California appellate court, said he had talked to three jurors who had seen the shackles. In addition, investigator Alan Clow and attorney Todd McWhorter provided affidavits that they could see the shackles from the courtroom. Petitioner argued that this evidence was not available to him earlier, because the California Court of Appeal had denied his motion to include the names and addresses of the jurors in the record. He argues that he had to hire a private investigator to uncover the information, and he brought the names to the court's attention as soon as he received them.

The district court denied Rhoden's petition. It noted that the state appellate court's findings of facts have the presumption of correctness, a presumption that can be overcome if its factual findings are not fairly supported by the record. It ruled that the petitioner had not met his burden of showing that the factual finding of the California Court of Appeal was erroneous. The district court deferred to what it characterized as the state court's finding that the jury did not see the shackles: "The factual finding that the jury did not see the shackles clearly decides this issue. If the jury did not know that Petitioner was shackled, it follows that the jury was not influenced by it, and Petitioner was not prejudiced." The district court then concluded that:

Petitioner does not meet his burden on this issue; the appellate court's decision is fairly supported by the record. This Court's review of the record found nothing indicating that any juror actually saw the shackles, Petitioner's arguments notwithstanding. Without evidence that a juror saw the shackles, this Court must presume that no one did. It follows that there was no constitutional violation.

In a footnote to this conclusion, the district court reviewed Rhoden's new affidavit that three jurors had stated they saw the shackles. The court stated that it did not consider this information because it was hearsay. It then added that even if it considered the information to be true, the affidavits did not provide a basis for habeas relief, because under Harris v. Vasquez, 913 F.2d 606, 627 (9th Cir.1990), superseded by 949 F.2d 1497 (9th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992), the evidence did not show Rhoden would have been acquitted if the jurors did see the shackles.

The California Court of Appeal found, and the respondents do not disagree, that the trial court abused its discretion when it ordered the shackles for Rhoden. Rhoden should not have been shackled during trial. The trial court's action did not meet any of the criteria established by this court for the imposition of shackles. It did not establish a compelling need for shackling; it did not pursue less restrictive alternatives, and it did not assess the harms to the defendant which arise from shackling. Its reasons for imposing the shackling were insufficient. See Castillo v. Stainer, 983 F.2d 145 (9th Cir.1992), amended 997 F.2d 669 (9th Cir.1993); Jones v. Meyer, 899 F.2d 883, 884-85 (9th Cir.), cert. denied, 498 U.S. 832, 111 S.Ct. 95, 112 L.Ed.2d 67 (1990); Spain v. Rushen, 883 F.2d 712, 721 (9th Cir.1989), cert. denied, 495 U.S. 910, 110 S.Ct. 1937, 109 L.Ed.2d 300 (1990).

Shackling is not per se unconstitutionally prejudicial. Illinois v. Allen, 397 U.S. 337, 342-44, 90 S.Ct. 1057, 1060-61, 25 L.Ed.2d 353 (1970). A claim of unconstitutional shackling is subject to harmless error analysis. Castillo, 997 F.2d at 669. In order to succeed on his claim, Rhoden must show that the shackling "had substantial and injurious effect or influence in determining the jury's verdict." Id. (citing Brecht v. Abrahamson, --- U.S. ----, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). In deciding whether the court's erroneous decision to shackle violated due process, a federal habeas court should "determine whether what [the jurors] saw was so inherently prejudicial as to pose an unacceptable threat to defendant's right to a fair trial." Holbrook v. Flynn, 475 U.S. 560, 572, 106 S.Ct. 1340, 1347, 89 L.Ed.2d 525 (1986). Of course, if the jurors never saw Rhoden's shackles, then he cannot show prejudice. In short, whether the petitioner was deprived of a fair trial in this case depends on what the jury saw.

The problem before us is that while both the state appellate court and the district court placed the burden on Rhoden to show prejudice, they never gave him an adequate opportunity to demonstrate whether or not the jurors saw the shackles. He offered evidence in the state trial court that the jurors could see the shackles, but the trial court disregarded the offer because it had concluded, erroneously, that shackling was required. Petitioner attempted to develop the record of prejudice in the state court of appeal. The state court of appeal rejected the affidavits of counsel and an investigator that the Rhoden's shackles were in the jurors' line of vision during voir dire as too speculative to support a finding that any juror actually saw the shackles, but the court of appeal also declined to give Rhoden's counsel the names of jurors so the jurors could be questioned directly.

The power of inquiry on federal habeas corpus is plenary. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963), overruled in part by Keeney v. Tamayo-Reyes, --- U.S. ----, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). "[W]here an applicant for a writ of habeas corpus alleges facts which, if proved, would entitle him to relief, the federal court to which the application is made has the power to receive evidence and try the facts anew." Id. Rhoden was denied the opportunity before both state courts to develop the record on whether the shackling prejudiced...