Thompson v. Borg

• Decision Date: 22 January 1996
• Docket Number: No. 94-15846,94-15846
• Citation: 74 F.3d 1571
• Parties: 96 Cal. Daily Op. Serv. 441, 96 Daily Journal D.A.R. 699 Paul Michael THOMPSON, Petitioner-Appellant, v. Robert BORG, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1571

74 F.3d 1571

96 Cal. Daily Op. Serv. 441, 96 Daily Journal

D.A.R. 699

Paul Michael THOMPSON, Petitioner-Appellant, v. Robert BORG, et al., Respondents-Appellees.

No. 94-15846.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Feb. 14, 1995.

Decided Jan. 22, 1996.

Connie M. Alvarez, Assistant Federal Public Defender, Sacramento, California, for petitioner-appellant.

Gregory W. Baugher, Senior Assistant Attorney General (on the briefs), and Arnold Overrowe, Deputy Attorney General (argued), Sacramento, California, for respondents-appellees.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, District Judge, Presiding.

Before: REINHARDT, THOMPSON, and KLEINFELD, Circuit Judges.

Opinion by Judge KLEINFELD.

KLEINFELD, Circuit Judge:

This is a state habeas corpus case. We apply the newly established standard for prejudice in state habeas constitutional error cases, and determine that on the facts of this case, there was no prejudice requiring that the writ be issued.

I. Facts.

Two groups confronted each other behind a fried chicken restaurant. Thompson stabbed three men from the other group, killing one of them. He also held a knife as he spoke with a woman in a car and slashed one of her tires.

He was charged with first degree murder for the killing, attempted murder for the two stabbings, and assault with a deadly weapon for threatening the woman in the car. By the time trial started, the prosecution had reduced the charges to first degree murder for the dead man, and three counts of assault with a deadly weapon. The prosecution tried to prove that he set out to kill the man who died, because Thompson thought the victim was a "snitch."

Thompson testified. He did not deny the stabbings. His story was that it was a fight, and he stabbed the three men in self defense. He claimed that he thought the man he killed had a knife in his hand, because his own fist was cut when he hit the dead man's fist. The other men, he claimed, were reaching behind their waists as if to get weapons. No weapons were found on the dead man or the two who were stabbed. A knife was found in the woman's car, in which the four victims had travelled to the fight.

The jury rejected the prosecution theory of the case, and convicted Thompson only of second degree murder for the killing, not first degree. It convicted him of assault with a deadly weapon for each of the nonfatal stabbings, but acquitted him of assault with a deadly weapon on the woman in the car.

The facts relevant to the issues on appeal relate to voir dire and closing argument. During voir dire, a venireman said he had read that Thompson had previously pleaded guilty to something and then withdrawn his plea. During trial, a witness "turned around" on the prosecution. The witness had apparently told the police that Thompson had set out to "get" the dead man because he was a "snitch." The witness testified at trial that Thompson was just "backing up" the witness and got involved in the fight without intending to. In closing argument, the defense suggested that the police and prosecutor had pressured the witness to lie in his "snitch" statement. The prosecutor responded in her rebuttal argument by implying that she personally believed that Thompson was guilty of first degree murder, based on her own experience and the capabilities of the police. She suggested that the defense investigator had coached the witness to recant his "snitch" story, and had rehearsed him to testify favorably to Thompson.

Thompson appealed and exhausted his remedies in the state courts. He then petitioned for a writ of habeas corpus in federal district court. The district court denied his petition, and Thompson now appeals that denial.

II. Analysis.

We assume without deciding that the venireman's disclosure fell within the category of juror misconduct, but decide that in the circumstances of this case, the error was harmless. We also hold that the prosecutorial misconduct was not prejudicial.

A. Standard of Review.

We review de novo the district court's denial of habeas relief. Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir.1988). For habeas review, Congress has directed that state court determinations of historical fact "shall be presumed to be correct." 28 U.S.C. Sec. 2254(d). However, "[t]he application of a legal standard to historical facts does not constitute a factual finding entitled to a presumption of correctness under section 2254(d)." Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir.1987). Therefore we review the state court's determination of lack of prejudice de novo. See Dickson, 849 F.2d at 405; Marino, 812 F.2d at 504.

B. Juror Misconduct.

Thompson had pleaded guilty to second degree murder, but had been allowed to withdraw his plea and go to trial. The voir dire took quite a long time. During the first two days of voir dire, the court had given admonitions not to read stories about the case in the newspaper. The third day, a new venireman was brought in, who had not heard the admonitions. During the portion of voir dire by the court, the judge elicited that the venireman had read a newspaper story about the case the previous night. Defense counsel took the matter up during his own questioning, in open court with the other jurors present. The juror refrained from saying what the newspaper story had said the first two times he was asked. The third time he was asked whether he had read something about the case, the second time defense counsel had asked him, the venireman expanded on his previous two answers and said what he had read, that Thompson had pleaded guilty to something:

[Judge]: Do you know anything about this case?

A. Read about it in the paper, last night's paper.

....

Mr. Perisho [defendant's lawyer]: Mr. Fowler, you mentioned that you only recall this case from what you read in the papers. Did you say last night?

A. Yes.

Q. Did you read something about this case?

A. Yes, the jury selection pending on this case, pleaded guilty at one time and changed it.

Thompson argues that this disclosure by the venireman amounted to prejudicial pretrial publicity. It does not. Prejudicial pretrial publicity may make it impossible to seat an impartial jury in a community, if the community has been saturated with prejudicial and inflammatory media publicity about the crime. See Jeffries v. Blodgett, 5 F.3d 1180, 1189 (9th Cir.1993); Harris v. Pulley, 885 F.2d 1354 (9th Cir.1988). A comment by a venireman during jury selection does not amount to pretrial publicity in this sense.

Thompson argued before the magistrate, and our dissenting colleague urges, that the venireman's remark amounted to juror misconduct. Juror misconduct typically occurs when a member of the jury has introduced into its deliberations matter which was not in evidence or in the instructions. Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir.1987). Thompson does not claim that any juror did anything wrong. We have used the sobriquet "jury misconduct" where no juror introduced the extraneous material, but a clerk inadvertently sent the police report and search warrant affidavit into the jury room. Hughes v. Borg, 898 F.2d 695 (9th Cir.1990).

The constitutionally protected interest at stake is in having the jury decide the case based on evidence subject to confrontation, cross examination, and the assistance of counsel. Dickson v. Sullivan, 849 F.2d 403 (9th Cir.1988). This interest requires inquiry for prejudice even where the extrinsic evidence comes from a source other than a juror, as when a deputy escorting the panel tells them that the defendant has "done something like this before." Id.

We have found no cases of reversal because of "jury misconduct" or extraneous information, where the defense itself elicited the extraneous information in open court. If reversal on this ground were permitted, defense counsel could plant error in the record of any trial. The reasons for vacating convictions where the jury obtained extraneous information are protection of the right to confrontation, cross examination and counsel. These reasons do not apply where the information is elicited during voir dire, because defendant had counsel who cross examined the venireman in defendant's presence. We assume, for purposes of discussion of our dissenting colleague's views, but do not decide, that the venireman's remark, "pleaded guilty at one time and changed it," amounted to introduction of extraneous material on which reversal could be founded. We further assume without deciding that failure to grant a mistrial after the venireman's remark was constitutional error.

The assumed error would support a writ only if prejudicial, because the error is "trial error," not "structural error." "Trial error 'occur[s] during the presentation of the case to the jury' and is amenable to harmless-error analysis because it 'may ... be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial].' " Brecht v. Abrahamson, 507 U.S. 619, ----, 113 S.Ct. 1710, 1717, 123 L.Ed.2d 353 (1993) (quoting Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246, 1264, 113 L.Ed.2d 302 (1991)). Deprivation of the right to counsel or a biased judge are "structural defects" because they infect the entire trial process. Fulminante, 499 U.S. at 306-10, 111 S.Ct. at 1262-65. "[M]ost constitutional errors can be harmless." Id. at 306, 111 S.Ct. at 1263. The Supreme Court classifies admission of an involuntary confession as "trial error." Id. at 306-11, 111 S.Ct. at 1262-66. In practical terms, admission of evidence of a withdrawn plea resembles admission of an involuntary confession, not a biased judge or total deprivation of the right to counsel. The purported error in the case at bar is in the exercise of discretion by a trial judge about how to cure prejudice to the defendant from information defense counsel...