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Smith v. Mascher

United States District Court, N.D. Iowa
Mar 25, 1999
No. C97-2019 (N.D. Iowa Mar. 25, 1999)

Opinion

No. C97-2019.

March 25, 1999.


REPORT AND RECOMMENDATION


This matter comes before the court pursuant to petitioner's March 26, 1997, application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. By order dated March 11, 1999, this matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. It is recommended that the petition be dismissed.

PROCEDURAL POSTURE

The petitioner was convicted of first degree murder on September 9, 1991, following a jury trial that commenced August 27, 1991. On September 27, 1991, the defendant was sentenced to mandatory life imprisonment. He appealed his conviction and the conviction was affirmed November 4, 1992, by the Iowa Court of Appeals. On May 4, 1993, the Supreme Court of Iowa again affirmed that conviction.

The petitioner brought an action for post-conviction relief in the Iowa District Court for Black Hawk County. That petition alleged ineffective assistance of counsel and was dismissed on January 2, 1997.

The petitioner raises two issues in this federal habeas corpus action. First, he contends that his Sixth Amendment right to a fair trial was denied when the trial court failed to sustain his challenges for cause to two jurors. Second, the defendant contends that he was denied his right to a fair trial when the trial court permitted the state to introduce evidence regarding an Illinois arrest warrant outstanding for the defendant on the night of the murder.

FACTS NECESSARY TO THE RESOLUTION OF THIS APPLICATION

The Iowa Court of Appeals succinctly described the facts of this matter as follows:

On the evening of September 26, 1990, Smith, Trina Cooper, and several other people went to Goodies Lounge in Waterloo, Iowa. They had consumed alcohol prior to arriving at Goodies, and they had left several times while at Goodies to purchase more alcohol. According to Cooper, her sister, Caprice, asked Cooper for some money to purchase orange juice. Cooper testified at trial that she dropped money on the floor as she was giving Caprice the requested money. Danitra Matlock testified she observed Smith and Cooper enter the bar and stated a friend of Matlock's saw Cooper drop the money on the floor; the friend picked up the money. Cooper then told Smith that Matlock's friend had picked up her money. Smith approached Matlock and asked her for the money. Matlock gave Smith one dollar. When Smith returned to Cooper, Cooper informed Smith she believed she had dropped more money than one dollar.
Smith returned to the woman who had picked up the money and began arguing about the amount taken. A man, later identified as the victim, Frank Davis, began arguing with Smith. Davis pushed Smith, and others joined Davis in beating Smith. The police arrived after the fight had ended and talked to Smith, who was bleeding and suffering pain. Smith stated he wanted to go home.
Smith returned to Goodies to get Cooper's sister and a friend. Smith was allegedly heard telling someone that "they" had jumped him and that they would soon be "dead son of a bitches." Smith and Cooper returned to their home; Cooper's mother attempted to talk to Smith, but Smith was enraged and ran out the door. Caprice Cooper, Trina's sister, testified that she (Caprice) saw Smith put a gun in his pants and pull his shirt over the gun.
Smith returned to Goodies thirty minutes later. Sandra Lyons, a bartender at Goodies, testified that Smith approached the bar to order a beer. When told that beer night was over, Lyons observed Smith move toward the back of the bar and later observed Smith move behind Davis. She testified she saw Smith lift his right arm to the back of Davis's head and then heard two shots. Lyons testified she heard two more shots after Davis slumped over. Lyons then observed Smith run out the door. Davis received three close-range gunshot wounds to the back of his head and two gunshot wounds to his back.
Smith was arrested the following day. Smith admitted he had shot Davis. Dr. Michael Taylor performed a psychiatric evaluation of Smith and concluded that Smith was borderline mentally retarded and had a long history of drug and alcohol abuse, antisocial personality disorder, and head trauma. Dr. Taylor further testified Smith was capable of premeditation and of forming an intent to kill. Dr. Frank Gersh, an examining psychologist, also concluded that Smith was capable of premeditating and of forming an intent to kill, but testified that smith's capacity to deliberate was severely impaired.

At trial, the voir dire proceedings were not reported. Petitioner's trial counsel challenged juror John Yordanoff claiming that he had expressed an extreme distrust of psychiatrists. The petitioner's challenge for cause was denied and the court made the following record:

MS. KNOCK: Your Honor, I believe it was John Yordanoff.

THE COURT: Oh, yes, it was the juror counsel for the defendant had asked several questions about psychiatric attitudes towards psychiatrists and attitudes about intelligence tests. And the State had asked a question about had any of the jurors heard anything or read anything about this case. Well, the juror raised his hand, indicated he'd heard something about the case and then the Court employed a procedure where we spoke with each of the jurors who had professed some exposure to media coverage about this case individually. Mr. Yordanoff was one of those jurors.

(Tr. p. 36)

At the time that we spoke with him about his exposure to media coverage, it became apparent that there was no exposure that was of any particular concern to us. But shortly thereafter the juror went on to bring to our attention a concern about his attitude toward psychiatrists and intelligence test.

And he stated, pretty forthrightly I think, that he had no faith in psychiatrists. He didn't use the word bunk, but I think we could probably fairly describe that attitude to him. And he also had little use for intelligence tests. The Court's perception was he wasn't quite as negative about intelligence tests as he was about psychiatrists but nevertheless he made it clear that his personal experience with them was such that he really didn't believe much in their validity.

At that point the defendant asked to strike the juror for cause and the Court declined to do so stating that the juror was free to hold whatever opinions he chooses to hold or chose to hold about psychiatrists and about intelligence tests, that they did not go to any elemental issue in the case. And so the juror remained and eventually the panels were passed for cause and the jury of 12 was — was selected. Nevertheless the Court did leave the juror on the panel. And to the extent the defendant wished to have the juror eliminated was forced to use one (Tr. p. 37) of the ten strikes available in the normal process.

Miss Knock, from your point of view does that adequately recite for the record the events that occurred?

MS. KNOCK: Yes, Your Honor.

THE COURT: Mr. Ferguson?

MR. FERGUSON: Yes, Your Honor

THE COURT: Okay. We've got about ten minutes before we start.

After the jury was impaneled but before they were sworn, one of the jurors first approached the prosecutor who directed the juror to approach the bailiff. This juror expressed concerns about the defendant's diminished capacity defense and the following record was made:

THE COURT: The record should reflect that following the Court's ruling on motions, after going off the record, the court attendant informed Court and counsel that one of the jurors had expressed some concern about her service on the case because of an attitude towards the defense of diminished responsibility. At this time the Court has directed that the juror be brought forward so that each counsel can have an opportunity to explore more fully exactly what that attitude is.
THE COURT: We are out of the presence of the remainder of the jurors. Counsel for both parties are present together with the defendant.

Go ahead, Mr. Ferguson.

MR. FERGUSON: Miss Davis, it's come to our attention that yesterday you expressed some concern to the bailiff about diminished responsibility. And before we begin, I believe yesterday at one of the breaks you came upon to me and asked to speak to —

MS. DAVIS: Yes.

MR. FERGUSON: — either myself or the other counsel or myself?

MS. DAVIS: Uh-huh.

MR. FERGUSON: And at that time I asked — did I ask you to talk to the bailiff?

(Tr. p. 46)

MS. DAVIS: Right.

MR. FERGUSON: Okay. What is it you're concerned about diminished responsibility? What exactly did you tell the bailiff or what's your concerns as you sit here now?
MS. DAVIS: If this trial is coming to the defense of a person being not mentally competent at the time of the crime, I just have a personal problem with that.

MR. FERGUSON: Okay.

MS. DAVIS: I just don't feel that that's a good defense.

MR. FERGUSON: Okay. And Court will, you know, we don't know exactly what all will come into this case, but there's excellent chance that some testimony is going to come in concerning diminished responsibility. Court will give you some instructions on it. Could you follow the law?

MS. DAVIS: What type of instructions?

MR. FERGUSON: Well, we can't get into exactly what the instructions will say. But there's certain standards that the law provides for diminished responsibility and how that affects the case and how that affects certain elements of the case. Now if the Court instructed you to follow that, could you do so?
MS. DAVIS: I would try to, yes. But I just — I (Tr. p. 47) want to be fair to the person and I just — I have a problem with people that just say that I was out of my mind when I did that.
MR. FERGUSON: Okay. Okay. And I appreciate you coming forward and letting us know this. Do you have — have you formed any opinion as to this man's guilt or innocence as he sits here now?

MS. DAVIS: No.

MR. FERGUSON: All right. I know you indicated that — Could you try to follow the law?

MS. DAVIS: Yeah, I would try.

MR. FERGUSON: Okay. Are you opposed to following the law in the case?
MS. DAVIS: Well, no. No, but I just wanted you to be aware of that.

MR. FERGUSON: Okay.

MS. DAVIS: That I just — I have a problem with that.

MR. FERGUSON: Okay. Thank you, Miss Davis. Miss Knock may have some questions for you.

THE COURT: Miss Knock

MS. KNOCK: Thank you.

Miss Davis, you had sufficient concern about the possibility of the defense that you felt it was necessary to bring that information forward; is that correct?

(Tr. p. 48)

MS. DAVIS: Uh-huh, yes.

MS. KNOCK: And then your concern was so personal that it wasn't something that you felt comfortable in bringing out during the entire process in front of the other prospective jurors; is that correct?

MS. DAVIS: Yes.

MS. KNOCK: And because of that personal concern that you have, do you think in all honesty that concern you have would — would — could prevent you from bringing back a fair and impartial verdict? In all honesty can you give me a yes or a no answer?

MS. DAVIS: I think I could be fair.

MS. KNOCK: Your Honor, I guess I still would ask that this witness be removed for cause. And I would also like to make a record regarding the fact that we were not provided this information until after the entire jury had been picked.

THE COURT: Why don't you take Miss Davis back to the jury room.

THE COURT: Thank you, ma'am.

Why don't you detail for the record whatever information you'd like to.
MS. KNOCK: Your Honor, as it's been indicated, Miss Davis attempted to bring this information forward at sometime during the jury selection process yesterday. Mr. (Tr. p. 49) Ferguson recalls and Miss Davis acknowledged that while the process was being made she wanted to bring this information forward.
For some reason that is not clear, this information was not brought forward until after we'd gone through the process of striking potential jurors for cause and exercising out discretionary strikes. Through no fault of anyone that is what we have her.
And I feel that because of the manner in which she attempted to bring this information forward, that it was so personal to her that she felt unable to address this in front of other potential jurors. There must be some deep personal reason that this individual has for having difficulty with the diminished responsibility defense. I feel that despite her statements that she could be fair, that in all honesty she could not. And for those two reasons, the fact that it's unfair to the defense to have not had the opportunity to address this issue during the jury selection process and the manner in which she now brings this information forward, that this juror should be struck.
THE COURT: The Court will not strike the juror but has allowed the defense to make a complete record on their position in the matter.

The Court's position is the jury panel has been (Tr. p. 50) passed for cause, strikes have been exercised. It is clear that the jury has not yet been sworn but that is not a key factor in the process. All the remaining members of the panel have been released and are gone.

The Court notes that the juror has stated that she can be fair. Secondly the juror has stated that she will do her best to apply the law as given it by the Court. That is the most that any litigant is entitled to expect of any juror. Jurors are entitled to hold whatever opinions they may choose to hold about many factors in the case.

CONCLUSIONS OF LAW

It is well settled that the Sixth and Fourteenth Amendments guarantee a defendant a right to an impartial jury. Ross v. Oklahoma, 487 U.S. 81, 85 (1988). However, the Court in Ross rejected the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury. Id. at 88. This is because peremptory challenges are not a protected constitutional right. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated. Id.

This is exactly what happened with respect to juror John Yordanoff. Where a defendant has to use a peremptory challenge to strike a biased juror and thereby was deprived of an extra peremptory challenge to strike another, there is no grounds for reversal. Rather, the defendant has the burden of showing that the jury which did sit was biased. United States v. Horsman, 114 F.3d 822, 825 (8th Cir. 1997); See also Cox v. Norris, 133 F.3d 565 (8th Cir. 1997). Other than his complaint about juror Davis discussed below, the petitioner in this case makes no effort to show an otherwise biased jury. Because his claim with respect to juror Davis fails, so must his claim concerning juror Yordanoff under the standard set forth in Ross, supra.

Juror Davis

Juror Davis initially told the court that she had a "personal problem" with the defense of diminished capacity. She stated, "I just don't feel that that's a good defense." The prosecutor then informed her that the law provided for standards to judge the diminished capacity defense. The juror pledged that she would try to follow the instructions. She volunteered that she just wanted to be fair to the defendant but was troubled by people in general who claimed that they were out of their mind when they committed a criminal act. She specifically stated that she had not formed an opinion as to the defendant's guilt or innocence. She again stated that she would try to follow the law. She stated that she was not opposed to following the law but just wanted the court to be aware of her concern. When given an opportunity by defense counsel to say that she was unable to be fair and impartial, the juror stated, "I think I could be fair."

This juror volunteered her concern about a potential defense. On both of the occasions when she specifically identified the defense for which she had formed an opinion, she described the defense as "not mentally competent at the time of the crime" and "I was out of my mind when I did that." The defendant in this case did not claim any temporary mental defect but claimed to suffer from a permanent condition that diminished his ability for deliberative thought. More importantly, the juror expressed a willingness to follow the instructions of the court, was not opposed to following the law, and had not formed an opinion as to the defendant's guilt or innocence. Finally, she specifically stated that she thought she had the ability to be fair.

The court credited the juror's statement that she could be fair. It also paraphrased the juror by stating that she would do her best to apply the law as given by the court. The court correctly noted that the test is not whether a juror has opinions touching upon the subject matter of the case, but whether the juror had the ability to set those opinions aside and be fair and impartial. See Witherspoon v. Illinois, 391 U.S. 510 (1968) (a man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the state and can thus obey the oath he takes as a juror).

The finding of the trial court, affirmed by the Iowa appellate courts, was necessarily a credibility determination. In Patton v. Yount, 467 U.S. 1025 (1984), three jurors gave testimony that was ambiguous and at times contradictory with respect to their impartiality. However, the Supreme Court noted:

This is not unusual on voir dire examination, particularly in a highly publicized criminal case. It is well to remember that the lay persons on the panel may never have been subjected to the type of leading questions and cross-examination tactics that frequently are employed and that were evident in this case.
Id. at 1039. When referring to one particular juror whose testimony was most ambiguous, the Supreme Court stated:

It is here that the federal court's deference must operate, for while the cold record arouses some concern, only the trial judge could tell which of these answers was said with the greatest comprehension and certainty.
Id. at 1040. The Court applied the statutory presumption of correctness to this credibility determination.

The presumption of correctness was again applied in a similar context in Wainwright v. Witt, 469 U.S. 412 (1985). The Supreme Court noted that findings concerning juror bias were based on determinations of demeanor and credibility that are peculiarly within a trial judge's province. Further, the court rejected the suggestion that the trial judge was required to announce for the record his conclusion that a particular juror was biased, or his reasoning.

In applying the presumption of correctness, the question is whether there is fair support in the record for the state court's conclusion that the jurors would be impartial. This standard requires "manifest error" by the trial court. Sloan v. Delo, 54 F.3d 1371, 1387 (8th Cir. 1995). When assessing a juror's credibility, courts should not blindly accept avowals of impartiality. However, to justify disregarding them there must be solid evidence of distinct bias. United States v. Morales-Diaz, 925 F.2d 535, 538 (1st Cir. 1991).

In Noltie v. Peterson, 9 F.3d 802 (9th Cir. 1993), a juror had indicated that she might have some difficulty in being a fair juror in a sexual abuse case involving a young girl. She then stated that she would try to be fair and that it would be a terrible injustice to the defendant not to have a fair trial. Her desire to be fair and her agreement to try to be fair was enough to reject her habeas challenge to the juror when the court applied the presumption of correctness.

Similarly, a juror who initially admits bias but who ultimately asserts an ability to be fair and impartial, if believed by the trial court, does not have to be struck for cause. United States v. Martinez-Salazar, 146 F.3d 653 (9th Cir. 1998) (citing cases in which jurors claimed impartiality or that they would try to be impartial despite earlier statements of bias).

Finally, in United States v. Capers, 61 F.3d 1100 (4th Cir. 1995), a juror approached the clerk of court after the jury was selected but before trial began and stated that he thought he might favor the government. Because the juror had not expressed concerns during voir dire, because he qualified his bias by stating that he "might" favor the government, and because he confirmed his willingness to be fair and to decide the case on the facts and laws presented, there was no abuse of discretion in refusing to disqualify the juror. See also United States v. Rubin, 37 F.3d 49, 54 (2d Cir. 1994).

The petitioner did not mention the presumption of correctness or the case of Patton v. Yount in his brief. For that reason, petitioner made no effort to overcome that presumption. Because the presumption applies and has not been rebutted, the state court's credibility finding concerning juror Davis' impartiality is binding on this federal court and precludes habeas corpus relief.

Admission Of Illinois Arrest Warrant

In plaintiff's second claim in support of this habeas petition, he contends that the trial court erroneously permitted the state to admit evidence that there was an outstanding warrant for the defendant's arrest for a serious offense at the time of the murder. The warrant was an Illinois warrant for murder but the jury was simply informed that a warrant for arrest for a serious offense was outstanding. At trial, the petitioner claimed that the evidence was irrelevant and that any probative value was outweighed by its prejudicial impact. On appeal, the Iowa Court of Appeals made detailed findings about the probative value of the evidence and any prejudice to the defendant.

Petitioner makes the same arguments before this court. However, in federal habeas corpus proceedings state evidentiary issues are reviewable only when the asserted error infringed a specific constitutional protection or was so prejudicial as to deny Due Process. Due Process is denied when the error is gross, conspicuously prejudicial or of such import that the trial was fatally infected. Griffin v. Delo, 33 F.3d 895 (8th Cir. 1994). The Eighth Circuit Court of Appeals has ruled that this Due Process standard mandates a greater showing of prejudice than is needed to support a finding of plain error on direct appeal. Id.

When the outcome of a federal habeas proceeding involves a matter of state law, a federal court is bound by a legal interpretation made by the state's highest court. Of course, admissibility of evidence at a state trial is a matter of state law and ordinarily will not form the basis for habeas corpus relief. Barrett v. Acevedo, ___ F.3d ___, 1999 WL 118437 (8th Cir. 1999) (en banc). To determine whether errors are so grossly prejudicial that they fatally infected the entire trial, the court must review the totality of the facts in the case and analyze the fairness of the particular trial under consideration. Henderson v. Norris, 118 F.3d 1283 (8th Cir. 1997).

Where the evidence against a defendant is overwhelming, even the erroneous admission of an arrest record will not justify habeas relief. Thomas v. Lynaugh, 812 F.2d 225, 230-31 (5th Cir. 1987). The court believes that the evidence against the defendant was overwhelming and that the evidence in question was probative and not prejudicial. The court further believes that the trial court preserved the appropriate balance between the probative value of the evidence and any prejudicial impact by not letting the jury know that the arrest warrant was for the charge of murder.

There is another reason why petitioner cannot get relief with respect to this claim. As the Supreme Court stated in Duncan v. Henry, 513 U.S. 364 (1995):

If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court but in state court.
Id. supra, at 365-6. In order for a claim to be "fairly presented" to the state courts, a petitioner is required to refer to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue. Presenting a claim that is merely similar to the federal habeas claim is not sufficient to satisfy the "fairly presented" requirement. Barrett v. Acevedo, supra.

In this case, petitioner presented this evidentiary issue to the state appellate courts as a question of probative value and prejudicial impact. The state court record and briefs demonstrate that the petitioner never made a claim that the admission of this arrest warrant deprived petitioner of any specific constitutional guarantee or that it otherwise denied him Due Process. Because this issue was not "fairly presented" to the state courts, federal habeas corpus relief is not available.

Upon the foregoing,

IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, petitioner's application for a writ of habeas corpus be denied.

Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).


Summaries of

Smith v. Mascher

United States District Court, N.D. Iowa
Mar 25, 1999
No. C97-2019 (N.D. Iowa Mar. 25, 1999)
Case details for

Smith v. Mascher

Case Details

Full title:ANTHONY KING SMITH, Petitioner, v. HERB MASCHER, WARDEN, IOWA STATE…

Court:United States District Court, N.D. Iowa

Date published: Mar 25, 1999

Citations

No. C97-2019 (N.D. Iowa Mar. 25, 1999)