Tuesday, January 07, 2014

Capital Habeas Petitioner Entitled to Evidentiary Hearing on Jury Tampering Issue

Stouffer v. Trammell, 2013 WL 6801057 (12/26/13) (Okl.) (Published) - The 10th remands an Oklahoma capital case for an evidentiary hearing regarding extrinsic contact with a juror. Near the end of the penalty phase defense counsel saw a juror's husband joking with, handshaking and hugging a former roommate of the murder victim. After counsel questioned the husband, the husband scooted out of the courtroom. An amazingly honest deputy sheriff testified he saw the husband repeatedly nod and wink at the juror throughout the penalty stage testimony and closing. The husband nonverbally expressed agreement with the prosecutor's good points during closing to the juror who looked at the husband with a "questioned look on her face." The trial court refused to conduct further inquiry such as questioning the juror. The 10th reviewed de novo whether a further hearing was necessary because the state courts never addressed the issue. The nonverbal communications between the spouses in the courtroom were improper whether or not there were any communications outside of the courtroom. The deputy's lay perceptions about the meaning of the nonverbal conduct should be considered. The conduct strongly indicated the communications were about the matters pending before the jury and they were unfavorable to the defense. This conclusion was not undermined by the juror's prior assurance to the trial court that she refused to talk about the case to her husband when he tried to talk to her about a newspaper article concerning the case. The 10th continues to follow the Remmer presumption that any contact with a juror during trial about a matter pending before the jury is prejudicial. So here the trial court had a duty to hold a Remmer hearing because genuine concerns of improper juror contact had arisen. The federal d. ct. could not reasonably conclude the improper communication was harmless without first holding a hearing and determining the existence and extent of the prejudice based on the circumstances of the contact. The petitioner diligently sought an evidentiary hearing throughout the state and federal proceedings, (although in federal court by virtue of a supplemental pro se request considered by the fed d. ct.). So the petitioner was entitled to a federal evidentiary hearing to protect the Sixth Amendment prohibition against jury tampering.

No other claims warranted relief, according to the 10th. The prosecutor's questioning that could have implied an officer had seen the petitioner with gloves on [to explain why none of the petitioner's fingerprints were at the murder scene] did not infect the trial with unfairness since there was other evidence indicating the petitioner had worn gloves and disposed of them. It was an improper attempt to elicit an emotional response when the prosecutor used highly emotional language in describing the murder, but not prejudicial enough to warrant reversal in light of the overwhelming guilt evidence. The 10th similarly resolved improper statements about how investigating officers emotionally responded to the offense. An argument about the victim's eye following the petitioner as he "staged" the crime scene properly went to the petitioner's state of mind, as did a reference to the petitioner as "cold-blooded." Part of the prosecutor's closing could have misled the jury to believe the petitioner had to prove self-defense, but no harm because the prosecutor also referred to the burden being on the state and the trial judge admonished the jury about the burden. The prosecutor's improperly- phrased question elicited relevant testimony that the victim appeared to be alive at the time, explaining why the officer moved the pistol away from her for safety reasons. The 3 improper appeals to emotion did not cumulatively warrant relief, given that there were many sources of intense emotion in the trial, some emotion is inevitable in a capital trial and the judge told the jury not to be influenced by sympathy. The victim impact statements were improperly "highly charged" but harmless, given the considerable support for the two aggravating factors the jury found, the emotional nature of the guilt-phase evidence and the "modest" mitigating evidence.