U.S. v. Nickell

• Decision Date: 29 August 1989
• Docket Number: No. 88-3132,88-3132
• Citation: 883 F.2d 824
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stella Maudine NICKELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 824

883 F.2d 824

UNITED STATES of America, Plaintiff-Appellee, v. Stella Maudine NICKELL, Defendant-Appellant.

No. 88-3132.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 8, 1989.

Decided Aug. 29, 1989.

Thomas Hillier, Federal Public Defender, Seattle, Wash., for defendant-appellant.

Joanne Y. Maida, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before SCHROEDER, BEEZER and BRUNETTI, Circuit Judges.

SCHROEDER, Circuit Judge:

This is an appeal from a conviction of tampering with a consumer product in violation of 18 U.S.C. Sec. 1365 (Supp. I 1983). The defendant was charged with, and convicted of, five counts of implanting potassium cyanide in packages of over-the-counter pain medications. This tampering resulted in the deaths of two victims, the defendant's husband and another woman unknown to the defendant who purchased the product in a store. The conviction was entered after a jury verdict in a highly-publicized trial.

It is remarkable that in this ably-presented appeal none of the claimed points of error concern rulings of the district court during the course of the trial itself. The issues in this appeal relate solely to the conduct of jurors during voir dire and deliberations, and the conduct of the trial judge during jury deliberations. The most significant issue is whether the district court delivered more than one Allen-type charge to the jury in violation of the law of this circuit. We affirm.

Juror Holliday

A number of issues concern the conduct of one particular juror, Laurel Holliday. We must decide first whether the district court should have excused Holliday after she reported a contact from an unknown telephone caller during jury deliberations, and second, whether the district court should have granted the defendant a new trial after press reports indicated that Holliday may not have given an altogether complete response to voir dire questioning.

The government attempted unsuccessfully throughout the trial to introduce into evidence the fact that Stella Nickell failed a polygraph examination. After the jury had been deliberating for one week, juror Holliday informed the court that she had received a phone call over the weekend in which the caller said "don't you know that she failed the lie detector test?" and hung up.

When the government suggested that juror Holliday be excused, the defense asked that she be allowed to remain on the jury. On inquiry from the court, Holliday testified that she would be able to put the substance of the phone call aside and decide the case on the evidence introduced at trial only. The district court allowed her to remain on the jury.

Nickell now contends that the district court should have excused Holliday from the jury, arguing that she did not knowingly and intelligently waive her objection to Holliday because a separate problem concerning Holliday's answers on voir dire did not surface until after the verdict was in and judgment had been entered. Whatever the merits of the voir dire issue, discussed next, the appellant is not entitled to have the judgment set aside on the basis of the district court's ruling on the telephone call. There was a knowing and intelligent waiver of any challenge to the juror's qualifications based on the receipt of the phone call. Defense counsel stated at the time that he had discussed the available alternatives with his client, and was waiving objection to Holliday's continued presence on the jury.

We therefore turn to the issue regarding juror Holliday that surfaced during the pendency of the defense's post-judgment motion for new trial. Nickell contends that the district court was required to grant the motion for new trial after it was revealed in the press that juror Holliday may have given misleading responses to questioning on voir dire. During voir dire examination the following exchange took place between the court and Ms. Holliday:

Question (by the court): Have you yourself, by chance, or anyone you know, been the victim of a product tampering incident?

Answer (Holliday): No.

Ms. Holliday also stated that she had no opinion as to whether the crimes charged had been committed and that there was nothing in her life experience that would affect her ability to be an impartial juror.

After the verdict and prior to the hearing on the defense's motion for a new trial, it was revealed in the press that Ms. Holliday had been involved in a lawsuit against Pepperidge Farms concerning a contaminated product. The lawsuit arose out of an incident that occurred more than a year and a half before this trial began, when Holliday bit into a cracker and swallowed a foreign object in the cracker. In her deposition for that lawsuit, about ten months before the trial in this case began, she testified that at the time she bit into the cracker, she "figured I was dead," and noted that "this was right after the cyanide poisonings in Auburn," the same poisonings involved in this case. In the deposition for that suit, she had also stated that the event had caused her trauma, paranoia and anxiety. The suit settled some two months before jury selection in this case began.

At the hearing on the appellant's motion for a new trial in this case, Holliday stated that before jury selection began, she talked to a friend who worked for a Seattle newspaper about the possibility of writing an article about this case should she be selected to serve on the jury. Juror Holliday further said that she wondered whether the experience with the cracker and subsequent litigation might disqualify her as a juror in this case and that during voir dire, she "wanted to hear how things would be asked." She further explained at the hearing that when she was asked whether she had ever been involved in a product tampering incident, she said she had not because her lawsuit was not a product tampering case, but a case of contamination during manufacture. Tests on the product in her case had revealed that the foreign matter had been baked into the cracker during manufacture.

The district court ruled that a new trial was not required because Holliday's response to the question was not false. On appeal Nickell contends that the district court erred, because under applicable standards Holliday's response need not have been false for a new trial to be required. Nickell argues that Holliday's response was sufficiently misleading to require reversal on the basis of an impermissibly biased jury.

The most recent Supreme Court decision concerning the standard for reversal due to the denial of an impartial jury is McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984). In McDonough, the defendants in a products liability case appealed the denial of their motion for a new trial after the entry of a jury verdict against them. The defendants contended that one juror's failure to disclose an injury to his son during questioning on voir dire had deprived them of their right to trial by an impartial jury. See 464 U.S. at 549-50, 104 S.Ct. at 846-47. Defense counsel had addressed the following question to the six-member jury:

Now, how many of you have yourself or any members of your immediate family ... sustained any injuries whether it was an accident at home, or on the farm or at work that resulted in any disability or prolonged pain and suffering ...?

Id. at 550, 104 S.Ct. at 847. One juror did not disclose that his son had suffered a broken leg as a result of the explosion of a truck tire.

The court held that to obtain a new trial based upon less than truthful answers during voir dire, "a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." Id. at 556, 104 S.Ct. at 850. This court has applied the McDonough test to charges of lack of an impartial jury in a criminal trial in United States v. Aguon, 851 F.2d 1158, 1170 (9th Cir.1988) (en banc).

The district court correctly ruled that the juror's response in this case did not meet the first requirement of the McDonough test. We see no basis for a finding by the district court that the juror deliberately concealed information as appellant contends. There is, as Holliday supposed, a significant difference between a product contamination case, such as the suit Holliday had been involved in earlier, and a product tampering case. Holliday was asked only whether she, or any member of her family, had been involved in a product tampering case. It is difficult to understand what response by the juror would have been more appropriate than her denial. There was no basis for granting a new trial based on dishonest statements by Holliday during voir dire.

Because Nickell has not demonstrated that Holliday answered dishonestly material questions on voir dire, thus providing no basis for an inference that Holliday was biased, we need not reach Nickell's contention that the district court violated Fed.R. of Evid. 606(b) by inquiring into Holliday's subjective impressions during jury deliberations. Even if that inquiry was improper, any error was harmless, because there was an independent basis for the court's ruling that Holliday was not impermissibly biased. Nickell also contends that the district court violated Rule 606(b) by considering a stipulation entered into by the parties that Holliday was the only juror who voted at any time...