Smith v. Swarthout

• Decision Date: 10 February 2014
• Docket Number: No. 11–17116.,11–17116.
• Citation: 742 F.3d 885
• Parties: Konolus I. SMITH, Petitioner–Appellant, v. Garry SWARTHOUT, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

742 F.3d 885

Konolus I. SMITH, Petitioner–Appellant,

v.Garry SWARTHOUT, Warden, Respondent–Appellee.

No. 11–17116.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 13, 2014.^*

Filed Feb. 10, 2014.

Quin Anthony Denvir, Davis, CA, for Petitioner–Appellant.

Craig Steven Meyers, Deputy Attorney General, Office of the California Attorney General, Sacramento, CA, for Defendant–Appellee.

Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, Jr., Senior District Judge, Presiding. D.C. No. 2:10–cv–00730–FCD–CHS.

Before: ARTHUR L. ALARCÓN, RICHARD C. TALLMAN, and SANDRA S. IKUTA, Circuit Judges.

OPINION

ALARCÓN, Circuit Judge:

Konolus I. Smith, a California state prisoner, appeals from the denial of his federal habeas corpus petition pursuant to 28 U.S.C. § 2254(a).

The California Court of Appeal affirmed Smith's convictions in a reasoned decision. Smith contests the district court's denial of his federal habeas corpus petition challenging the Court of Appeal's decision on four grounds: (1) the state trial court's denial of defense counsel's motion to disqualify Juror No. 6 violated the Sixth and Fourteenth Amendments because Juror No. 6 intentionally withheld material information during voir dire; (2) the introduction of extrinsic evidence by Juror No. 6 during jury deliberations violated the Sixth and Fourteenth Amendments; (3) irregularities that occurred when the state trial court accepted the verdict violated his right to a unanimous jury under California law and the federal Constitution; and (4) the state trial court violated his due process rights because its statements to the jurors coerced them to accept the verdict.

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and affirm the district court's order denying Smith habeas corpus relief.

I

The parties do not dispute the facts underlying Smith's convictions. The night of August 28, 2007, Smith menaced his wife with scissors, bound her feet and hands with the belt of a bathrobe, and threatened to kill her, while forcing her to swallow numerous Benadryl, Advil, and ibuprofen pills. Eventually she lost consciousness. Although Smith insisted to emergency responders that his wife had attempted suicide, the truth emerged when she awoke in the hospital. And later, Smith apologized to his wife for what he had done in a phone conversation recorded by the authorities with authorization of a superior court judge.

On October 5, 2007, Smith was charged with attempted murder (Count I), false imprisonment with violence (Count II), corporal injury to a spouse (Count III), and criminal threats (Count IV). The information also alleged, as sentencing enhancements, that Smith inflicted great bodily injury in committing these crimes.¹

During the voir dire examination of a new group of prospective jurors, which included Juror No. 6, a retired lieutenant from the New York Police Department, the court stated, “I'm going to assume all the newcomers have heard all the questions of all the people.” The Judge then stated: “Anyone in that new batch who has any problem? Any kind of red flag goes up, or anything you think I should know or Mr. Smith should know about you, outside [of] the fact we have a retired lieutenant police department [officer].” Juror No. 6 did not respond. At around 3:17 p.m., defense counsel asked the prospective jurors if anyone had “read the paper about this particular case?” No one responded. In accepting the jury, and waiving further peremptory challenges, Smith's counsel stated: “I think this is going to surprise Juror No. 6. We have a jury. We'll accept this jury.” A jury containing Juror No. 6 was selected before the jurors were excused for the day at 3:25 p.m.

The following morning, the court was informed by a member of the court's staff that Juror No. 6 knew the victim in this matter. In a session held in chambers, outside the presence of the other jurors, Juror No. 6 stated that he did not know Smith personally, but that his daughter and her husband lived about two to three doors away from Smith and his wife. He then asserted that they

knew this gentleman as Smitty, as their neighbor. They've also had probably much more interest than me—I just got back from Florida. We have a place in Florida, and we have been there for two months. So been out of the loop. I've heard it said that there was a previous incident where he had been charged with a similar crime. What it was, and how it came about, and what the outcome was, I don't know. I said, “I don't want to hear it. I don't want to ... hear it,” because, you know, it could prejudice, of course, how you feel about an individual. Other than that, I said the only thing that the neighbors knew about him was that he was a charming man. You know, I had seen—I had seen him, but never really met him. I remember commenting, “Geez. There's a black actually living in his neighborhood.” When we were first living there, Meyers was the redneck area which we found out it wasn't. It's a lovely place to live. Do we know him? Do we know people that do know anybody? I live on Mohican which is about three blocks from his home.

The court asked Juror No. 6 if he knew anything about the incident underlying the present charges. Juror No. 6 responded:

No. What do you hear? You know, death by Tylenol? No. I have never heard—probably, I have read articles in the paper. I do get the Tribune. I haven't gotten it since I got back because we got back on Sunday. We haven't reviewed the paper yet. I do subscribe to it and usually did read it. It didn't have a big impact, like following a major case on it.

After Juror No. 6 made these remarks, defense counsel stated that he was concerned “because of the mention of the priors.” The court then asked Juror No. 6, “What did you hear about the prior incident?” Juror No. 6 responded that he had heard a rumor from his daughter that “possibly [Smith] had been charged previously with an attempted murder or something.” The court then inquired whether Juror No. 6 could “separate that rumor that you heard about from your judgment [in] this case.” Juror No. 6 replied:

You know, I can very easily because you were throwing around cliches. Basically, you can indict a ham sandwich. What it was, what it was about, like I told my daughter, don't say—whether or not they even know, I don't know. And, yeah, I mean, I have no real leanings one way or another. I mean, I would—I can be fair. You know? I have been through many court cases and know, you know, a lot about the judicial system. But that's basically, could I? Yes.

Defense counsel then moved to disqualify Juror No. 6. He stated that he would “have exercised a peremptory” if he had this information during the voir dire examination. In denying the motion, the court stated: “I'm satisfied with Juror No. 6's responses that he would do his best to be fair and impartial in this case. He said he would. He said—from his previous—they weren't actually contacts, but his previous knowledge of Mr. Smith, he thought he was an okay guy.”

Trial commenced later that day. It lasted six days. The prosecution presented the testimony of nine witnesses, including Smith's wife.

The jury began deliberating on December 19. On December 21, the court received a note from the jury foreperson which stated, “One juror went online and looked up medications. Is it compromised?” The court sent a note to the jury room asking the jury foreperson which juror had allegedly engaged in any impermissible conduct. The jury foreperson informed the court that it was Juror No. 6.

The court then questioned each of the jurors separately in the presence of counsel and Smith. Juror No. 6 admitted that he had read the labels on his wife's bottles of Tylenol and ibuprofen the previous night, and that he had mentioned the labels while the jurors were discussing Count I, the attempted murder charge. In describing the labels to the other jurors, he said that nothing on the labels suggested that Tylenol and ibuprofen were lethal drugs since they caused only symptoms like drowsiness and an upset stomach. He also encouraged them to read the labels on the bottles that had been admitted into evidence. Juror No. 6 also informed the court that the jury foreperson told him, “[Y]ou're not supposed to do any research or anything outside of this room.”

Juror No. 6 denied having conducted any research on the internet, explaining that “the Internet came in because I said, ‘You could do ... an Internet search and come up with all kinds of things on this stuff.’ ” Nine of the jurors, however, stated that he had informed them not only that he had looked at the labels, but that he had also gone online to research medications.

The jury foreperson informed the court that the jury had reached a verdict on Counts III and IV on the previous day, prior to Juror No. 6's revelation that he had conducted research regarding the effect of ingesting Tylenol and ibuprofen. The record shows that the trial court had been informed by the jury foreperson the previous day that the jury had reached a verdict on Counts III and IV. The court then informed counsel that it was going to accept the verdict on Counts III and IV, and declare a mistrial as to Counts I and II. Neither party objected to the court's proposal.

The jury verdict forms submitted by the jury foreperson indicated that the jury had found Smith guilty of Counts III and IV, but had not reached a decision on Counts I and II. The trial court noted that the jury's verdict regarding the sentencing enhancement allegation for Count I had been filled out, but not the one for Count III. The jury foreperson indicated that there was a mistake and modified the verdict form. When the court again reviewed the form, however, it discovered that the foreperson had again filled out the sentencing enhancement form for Count I, not Count III. The court then instructed the jury foreperson as follows: “What I want you...