Sanders v. Lamarque

Decision Date03 February 2004
Docket NumberNo. 02-56893.,02-56893.
Citation357 F.3d 943
PartiesMarcus C. SANDERS, Petitioner-Appellee, v. A.A. LAMARQUE, Warden, Respondent-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Ana Duarte, Office of the Attorney General of the State of California, for the respondent-appellant.

Tina Long Rippy, Whittier, CA, for the petitioner-appellee.

Appeal from the United States District Court for the Central District of California; J. Spencer Letts, District Judge, Presiding. D.C. No. CV-00-04959-JSL.

Before HALL, THOMAS, and PAEZ, Circuit Judges.

Opinion by Judge THOMAS; Dissent by Judge HALL

OPINION

THOMAS, Circuit Judge:

Warden A.A. Lamarque appeals the judgment of the district court granting state prisoner Marcus C. Sanders' petition for a writ of habeas corpus based on the state trial court's dismissal of the lone holdout juror. We affirm.

I

The protection of holdout jurors from coercion has been a fundamental part of our federal jurisprudence. The Supreme Court has long held that it is improper for a trial judge to inquire as to the numerical division of a deadlocked jury. See Brasfield v. United States, 272 U.S. 448, 449-50, 47 S.Ct. 135, 71 L.Ed. 345 (1926); Burton v. United States, 196 U.S. 283, 307-08, 25 S.Ct. 243, 49 L.Ed. 482 (1905). Indeed, "[i]f a trial judge inquires into the numerical division of the jury and then gives an Allen charge, the charge is per se coercive and requires reversal." United States v. Ajiboye, 961 F.2d 892, 893-94 (9th Cir.1992) (citations omitted). As a matter of federal law, this is true even when the judge inadvertently is informed of the division. See United States v. Sae-Chua, 725 F.2d 530, 532 (9th Cir. 1984).1

Removal of a holdout juror is the ultimate form of coercion. Thus, "`a court may not dismiss a juror during deliberations if the request for discharge stems from doubts the juror harbors about the sufficiency of the government's evidence.'" United States v. Symington, 195 F.3d 1080, 1085 (9th Cir.1999) (quoting United States v. Brown, 823 F.2d 591, 596 (D.C.Cir.1987)). "The reason for this prohibition is clear: `To remove a juror because he is unpersuaded by the Government's case is to deny the defendant his right to a unanimous verdict.'" Id. (quoting United States v. Thomas, 116 F.3d 606, 621 (2d Cir.1997)). As the D.C. Circuit observed:

If a court could discharge a juror on the basis of such a request, then the right to a unanimous verdict would be illusory. A discharge of this kind would enable the government to obtain a conviction even though a member of the jury that began deliberations thought that the government had failed to prove its case. Such a result is unacceptable under the Constitution.

Brown, 823 F.2d at 596.

On habeas review, we have held that the fact that a state trial judge knew that a juror was the lone holdout did not, by itself, invalidate the trial judge's decision to excuse the juror for cause. Perez v. Marshall, 119 F.3d 1422, 1427 (9th Cir. 1997). Important to our conclusion in Perez was the fact that the district court had specifically found that the state trial court's decision was not based on "a desire to have a unanimous verdict," but rather that the trial court "was forced to act" because of the juror's "emotional instability to continue performing the essential function of a juror-deliberation." Id.

II

This case involves the removal of the lone holdout juror after the state trial court learned of that fact. Here, on the third day of jury deliberations, the jury foreperson (Juror 2) sent the trial court a note complaining that Juror 4 was not properly following the court's instruction "not to be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling." The trial court responded by inviting Juror 2, Juror 4, and then Juror 3 separately into chambers for further questioning. All three jurors were questioned individually and only in the presence of counsel. Although the court attempted to avoid soliciting the information, it became clear through the interviews that the jury was split 11 to 1 and that Juror 4 was the only juror in favor of acquittal — a fact that the trial judge acknowledged on the record as being "obvious."

Juror 2 told the court that Juror 4 "was putting her emotions into play, and that she just felt that she believed everything that the defendant said." Juror 2 reported that Juror 4 had stated that she did not trust the police and felt that the police had been badgering a key prosecution witness. Juror 2 testified that she finally told Juror 4, "It is not just my judgment but the judgment of 11 jurors [that] you are incapable of doing this. So I have no other choice but to send[the judge] this note."

When questioned, Juror 4 testified that she went into deliberation paying attention to both sides; that she "deeply" felt that she was fair and objective; that she requested that the jury go through the witnesses one by one — a request that initially was rebuffed by the other jurors; and that she had pointed out some parts of the evidence about which there could be doubt. She testified that the other jurors had pressured her, specifically noting that:

[On] Friday I was pretty beat up on in that room by the other fellow jurors. I was told I was very confused. I was told, "you are acting like a kid." I was told a lot of things by the fellow jurors. So as far as the case, I feel pretty solid.

Later, she testified that after another juror made the statement that the jury was not getting anywhere because Juror 4 was not going to change her mind, Juror 4 told her fellow jurors:

At that point, I made a statement saying, "I — I know at this moment you are feeling like I'm holding all of you up. I feel like this now. You are making me feel like this." I said, "But I cannot change something I feel inside. I have doubt, I don't want to change my decision just to please you."

Juror 4 then offered to the other jury members to excuse herself for the purpose of moving deliberations forward, if that were allowed. She testified that later in the afternoon, one juror stated that "we're at a deadlock. Why don't we just sign that we can't come to any decision." Juror 4 testified that in response:

The foreman then said, "No, no, I can't live with myself putting someone on the street who is going — who will kill again. And so I just — no, no, I can't." I said, "Well, don't you see I feel just as strongly as you do about how you feel." I said, "You feel that way. I don't." I said, "But I'll tell you this: do whatever at this point you feel you must do to just move this on." I said, "I don't feel that it's fair for you to make me want to change how I feel." I said, "I have to leave this place and live with myself, too. I wouldn't feel too good about myself if I just made a decision just to please you. I have to go by what I truly feel inside, and these things are the way I feel."

It was at that point in the discussions that the foreperson decided to send the note to the judge. After hearing the testimony of the foreperson, Juror 4 and a third juror, the trial judge concluded that Juror 4 was not prejudiced and should not be removed from the jury because of bias or inability to follow instructions. This finding has been uncontested, both on direct appeal and in habeas proceedings.

However, during the in camera discussions, a second issue emerged. Based on Juror 4's testimony, the prosecution questioned whether or not she had been truthful in voir dire. During voir dire, the trial court asked the prospective jurors preliminary questions, and then announced that the nature of the case involved a murder with a handgun. The court inquired whether anyone had experiences that would interfere with his or her ability to assess the evidence objectively.

A couple of prospective jurors volunteered information, including a woman, later selected to be Juror 4, who informed the trial court that her grandnephew was murdered in the past year after being shot 21 times. After being assured that Juror 4 could be objective, the court asked her whether the killing was gang related, to which Juror 4 responded, "That may have been. That may have been the reason." Neither the court, the defense, nor the prosecution elected to follow up with further questions.

The trial court next informed the jury pool of the location of the murder and asked: "Is there anyone who is familiar with that location because you work there, live there, had some — your job brings you to [that] location, you repair phones in that location, whatever it is, you are somehow aware and know that location?" Juror 4 did not respond to this question.

The trial court posed the following question: "Have you, your family members or any close friends ever been the victim of any violent crime or any crime in which a weapon was brandished or used?" Juror 4 responded by reminding the court that her grandnephew was murdered and affirming her belief that she could be impartial in evaluating evidence presented in a similar killing.

The trial court also inquired: "Have you, your family members or any close friends ever been accused of a crime, or arrested for any crime or investigated regarding a crime regardless of whether you were ever ultimately tried or convicted?" Juror 4 explained that her son was convicted and incarcerated for check fraud. On a follow-up question, she responded that she had visited him at the facility in which he was held.

After a few more questions, the court asked whether anyone had "ever visited a jail facility." Juror 4 reminded the court that she had visited her son while he was incarcerated.

The court proceeded to ask a series of questions including: "Do you live or work in an area where drugs are openly sold or used?"; "Do you live or work in an area where there is open gang activity?"; and "Do you have any close friends or family members who are gang members?"...

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