Smith v. Brewer

• Citation: 444 F. Supp. 482
• Decision Date: 17 January 1978
• Docket Number: No. 76-284-2.,76-284-2.
• Parties: Walter SMITH, Jr., Petitioner, v. Lou V. BREWER, Warden of the Iowa State Penitentiary, Respondent.
• Court: U.S. District Court — Southern District of Iowa

444 F. Supp. 482

Walter SMITH, Jr., Petitioner, v. Lou V. BREWER, Warden of the Iowa State Penitentiary, Respondent.

No. 76-284-2.

United States District Court, S. D. Iowa, C. D.

January 17, 1978.

COPYRIGHT MATERIAL OMITTED

John C. Wellman, Polk County Offender Advocate, Des Moines, Iowa, Robert R. Rigg, Des Moines, Iowa, for petitioner.

Richard C. Turner, Atty. Gen. of Iowa, and Thomas D. McGrane, Asst. Atty. Gen., Crim. Appeals Div., Des Moines, Iowa, for respondent.

MEMORANDUM AND ORDER

HANSON, Senior District Judge.

This matter is before the Court on the application for a writ of habeas corpus submitted by Walter Smith, Jr., pursuant to 28 U.S.C. § 2254. Smith, an inmate at the Iowa State Penitentiary, attacks his March 20, 1973 conviction for first degree murder in Polk County District Court on the grounds that jury misconduct deprived him of his Sixth Amendment rights as guaranteed by the Fourteenth Amendment to be tried by an impartial jury and to confront witnesses against him.

Subsequent to the return of the jury's guilty verdict, Smith's counsel entered a motion for a new trial on substantially the same grounds asserted in the present petition. The state trial court held a hearing on said motion on April 3, 1973. At the hearing, one of the jurors, Mrs. Ilda Elliott, testified as to the conduct of individual jurors during the approximately three days of deliberations which preceded the guilty verdict. Mrs. Elliott's testimony related almost entirely to activities which occurred within the confines of the jury room. At the conclusion of the hearing, the trial court ruled that the matters raised by Mrs. Elliott "inhered in the verdict" and could not be considered as impeaching the jury's determination of guilt.

Petitioner appealed his conviction to the Supreme Court of Iowa on two grounds: (1) that the evidence was not sufficient to support a first degree murder conviction; and (2) that jury misconduct deprived him of a fair trial. The Supreme Court rejected both arguments and affirmed the conviction in an opinion filed April 14, 1976. State v. Smith, 240 N.W.2d 693 (Iowa 1976).

Petitioner has not sought any form of collateral relief prior to the submission of his petition for a writ of habeas corpus. However, in view of the fact that petitioner presents this Court with the same prior misconduct issue considered and rejected by the Supreme Court of Iowa on direct appeal, it is apparent that petitioner has exhausted his state court remedies within the meaning of 28 U.S.C. §§ 2254(b) and (c). Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Eaton v. Wyrick, 528 F.2d 477, 479-80 (8th Cir. 1975). Accordingly, this matter is properly before the Court for federal habeas review.

The parties have agreed to submit this cause for decision on the basis of the record developed in the state trial court. Since there is no substantial factual dispute involved and petitioner is willing to rely on the record developed in the state courts, this Court concludes that no evidentiary hearing is warranted. See Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 9 L.Ed.2d 770 (1962); Franklin v. Wyrick, 529 F.2d 79, 81 (8th Cir.), cert. denied, 425 U.S. 962, 96 S.Ct. 1747, 48 L.Ed.2d 208 (1976).

I. STATEMENT OF FACTS

The jury found petitioner guilty of murder in the first degree after extensive deliberation. The circumstances surrounding the commission of the crime and the conduct of the subsequent trial are relevant to the issue of jury misconduct asserted here.

Petitioner fatally shot and killed his wife, Judy Smith, on July 21, 1972. At the time the couple were separated, though they had apparently theretofore remained on cordial terms. On the evening of July 21, a recent acquaintance of Mrs. Smith, one Keith Jackson, called at the apartment Mrs. Smith shared with another woman, Linda Brown. Present were Judy Smith, Jackson, Linda Brown and Brown's boyfriend, Jimmy Western. After listening to records and drinking wine for a period of time, the couples retired to separate bedrooms.

Shortly before the murder, petitioner had arrived at the apartment and, from a position on the back porch, observed Jackson and petitioner's wife together, overheard them discuss going to bed, and witnessed them going into the bedroom. Angered by what he had seen, petitioner walked to his car located a block away, retrieved a gun, returned to the apartment, and shot both Jackson and his wife. Petitioner's wife was fatally wounded. Petitioner and Jackson are black as was petitioner's attorney at trial, Henry T. McKnight. Judy Smith was white.¹

Petitioner's case was submitted to the jury on March 15, 1973 after approximately two days of trial. Though the record is not completely clear, it appears that for the final two of the approximately three days of deliberations the jurors stood eleven to one in favor of a guilty verdict. The reluctant juror was Mrs. Ilda Elliott. On March 20, 1973, Mrs. Elliott finally relented and voted guilty immediately after the testimony of Keith Jackson was read to the jurors on Mrs. Elliott's insistence. Having reached a verdict, the jurors, including Mrs. Elliott, were marshalled into the courtroom. After the reading of the verdict, the trial judge addressed the jury generally and asked whether said verdict was the verdict of all the jurors. Mrs. Elliott remained silent, thereby assenting to the unanimous verdict.

Several days after the trial, Mrs. Elliott was contacted by Mr. McKnight, trial counsel for petitioner. On Mr. McKnight's inquiry, Mrs. Elliott indicated that the other jurors had given her a "bad time" during deliberations. Petitioner subsequently filed a motion for a new trial accompanied by an affidavit of Mrs. Elliott in which she detailed the circumstances surrounding her decision to vote for a guilty verdict.

In her affidavit and testimony at the hearing on the motion for new trial, Mrs. Elliott stated that she had been subjected to intense pressure from the other eleven jurors to change her mind. After observing petitioner in a parking lot one morning, a juror later opined during deliberations that petitioner "would kill again before convicted." Another stated his belief that such a man should not be "running around among our wives and children." Mrs. Elliott was in effect told that she would be responsible if such a killing occurred. She was asked how she would feel if the victim had been her daughter. In Mrs. Elliott's words:

Repeatedly they screamed and they yelled, "What's wrong with you? Are you blind that you can't see the evidence on the table? And is there anything wrong in your personal love? Do you love your Bible? If you do, you know there are some things in there, some facts that you have to accept."

At one point, a juror named Burns observed, without factual elaboration, that the evidence in a prior murder trial on which he sat as a juror was not as strong as that in petitioner's case, "but we got a conviction."

Mrs. Elliott also testified to three incidents in which two jurors, Adair and Burns, made comments or engaged in conduct which Mrs. Elliott interpreted as relating to the race of petitioner and his attorney. These incidents are best retold in Mrs. Elliott's words:

First, when we were first there, the first day, Dorothy Adair had stated a couple years ago Mr. McKnight had had a case and that he had gotten down on the floor and so forth. She said antics, and she said it was — it really was quite funny. And then Mr. Burns at one point, the first point he got up and walked about the room in kind of a — well, a strutting way such as a minstrel used to do and mimics, used the black dialect to repeat some things you Mr. McKnight said. Then later on he laid down on the table, took off his coat. While he was doing this he was bouncing around the room, and then he again, when he laid down on the table, he used the black mimic like "you all" and that and this and, you know, — Elliott's testimony as it related to racial overtones in the jury's deliberations was limited to that quoted above, and no claim is made that the matter of petitioner's race was brought up in connection with the facts surrounding the shooting of Judy Smith.

Mrs. Elliott had wanted to have the testimony of Keith Jackson read to the jury after the first day of deliberations, but the other jurors would not agree to her request. Eventually, Mrs. Elliott promised that if the testimony were read and if it was not as she had supposed, she would then change her vote. The testimony apparently differed in some respects from what Mrs. Elliott had recalled and, true to her word, immediately upon the return of the jurors to the jury room, Mrs. Elliott voted with the others in finding that petitioner was guilty of first degree murder.

Mrs. Elliott's affidavit and testimony before the state trial court on the motion for new trial constitute the only evidence presented to this Court with respect to the present habeas corpus petition.

II. CONCLUSIONS OF LAW

At the conclusion of Mrs. Elliott's testimony on the motion for new trial, the trial judge ruled that he could not consider Mrs. Elliott's version of the jury proceedings because the matter testified to "inhered in the verdict." The Iowa Supreme Court affirmed this reasoning. State v. Smith, supra at 696. The state courts thus applied an evidentiary rule common to both federal and state jurisprudence that "a juror may not impeach his own verdict once the jury has been discharged." Government of the Virgin Islands v. Gereau, 523 F.2d 140, 148 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976). See, e. g., McDonald v. Pless, 238 U.S. 264, 267-69, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); United States v. Gambina, 564 F.2d 22, 24 (8th Cir. 1977); Pruitt v. Hutto, 542 F.2d 458, 460 (8th Cir. 1976); United States v. Eagle, 539 F.2d 1166, 1169-70 (8th Cir. 1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1146,...