Konolus Smith v. Garry Swarthout , 742 F.3d 885 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KONOLUS I. SMITH, No. 11-17116
Petitioner-Appellant,
D.C. No.
v. 2:10-cv-00730-
FCD-CHS
GARRY SWARTHOUT, Warden,
Respondent-Appellee.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., Senior District Judge, Presiding
Submitted January 13, 2014*
San Francisco, California
Filed February 10, 2014
Before: Arthur L. Alarcón, Richard C. Tallman,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Alarcón
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 SMITH V. SWARTHOUT
SUMMARY**
Habeas Corpus
The panel affirmed the denial of a 28 U.S.C. § 2254
habeas corpus petition alleging juror bias, misconduct, and
related error in connection with a conviction of corporal
injury to a spouse and making criminal threats.
Petitioner was charged with four counts. The day after
the jury notified the trial court that it had reached a verdict on
two of the counts, the foreperson indicated to the court that
Juror No. 6 had conducted research and discussed his findings
with the jury. After polling the jury, the court accepted the
verdict on the two counts reached before the revelation, and
declared a mistrial as to the remaining counts and any special
findings.
The panel first held that the state court did not
unreasonably determine the facts in denying petitioner’s
claim that Juror No. 6 should have been discharged for bias
when the juror unintentionally did not notify the court that his
daughter was a neighbor of petitioner and the victim until
after the jury had been chosen, then testified that he could be
fair and impartial.
The panel next affirmed the denial of relief as to
petitioner’s claim that the jury considered extrinsic evidence
when Juror No. 6 conducted his own research and discussed
his findings with the jury, because this did not have a
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SMITH V. SWARTHOUT 3
substantial and injurious effect or influence on the verdict on
the counts of conviction.
The panel also affirmed the denial of relief as to
petitioner’s claim that he was denied a unanimous jury when
Juror No. 1 initially and mistakenly stated during polling that
he did not vote to find petitioner guilty of the counts of
conviction, but later clarified that he did find petitioner guilty
of the substantive crimes set forth in the counts of conviction.
Finally, the panel affirmed the denial of relief as to
petitioner’s claim that the trial court coerced a verdict by
suggesting that if the jury failed to reach a unanimous verdict
on a sentencing enhancement, the court would be required to
discharge Juror No. 6, seat an alternate, and order the jury to
begin deliberations anew.
COUNSEL
Quin Anthony Denvir, Davis, California, for Petitioner-
Appellant.
Craig Steven Meyers, Deputy Attorney General, Office of the
California Attorney General, Sacramento, California, for
Defendant-Appellee.
4 SMITH V. SWARTHOUT
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
SMITH V. SWARTHOUT 5
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
1
The sentencing enhancement allegations regarding Counts II and IV
were stricken by the trial court in response to the prosecution’s motion
before the jury was instructed.
6 SMITH V. SWARTHOUT
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
SMITH V. SWARTHOUT 7
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
8 SMITH V. SWARTHOUT
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
SMITH V. SWARTHOUT 9
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
10 SMITH V. SWARTHOUT
court then instructed the jury foreperson as follows: “What
I want you to do is mark down the decision . . . that was made
yesterday, if it was made yesterday; date it today; sign it; and
somewhere on there notate it that this vote or this decision
was made on December 20, 2007.” The jury foreperson
revised the verdict form for the sentencing enhancement on
Count III. As revised, it stated: “We the jury . . . find that the
Defendant Konolus Smith did not inflict great bodily injury
on the victim in the commission of the [crime] alleged on
Count III, spousal abuse, dated 12-21-07.”
The court then polled the jurors regarding their verdict on
Counts III and IV. The following colloquy took place
between the court and Juror No. 1:
The Court: Juror No. 1, are these your
verdicts and your special finding?
Juror No. 1: For Counts III—
The Court: There’s a mistrial as to Counts I
and II. I’m going to be asking all of you if
these [are] your verdicts as to Count III,
spousal battery; and Count IV, criminal
threats; and whether it’s your finding that
great bodily injury was not inflicted. So Juror
No. 1, are these your verdicts on the two
counts and your special finding?
Juror No. 1: No.
The Court: No?
SMITH V. SWARTHOUT 11
Juror No. 1: Because the forms were signed
wrong. We had not come to a complete
decision.
The Court: As to what?
Juror No. 1: Great bodily injury.
The Court: I have a number of jurors who are
nodding that that’s—the jury hasn’t reached a
decision. That would apparently explain
the—
Juror No. 1: Sir, we did the same thing on
Count I.
The Court: The problem with the
findings—the situation is I cannot send you
back in to deliberate on that because I’m
going to discharge one of the jurors for
misconduct. And that means I have to bring
in the alternate. When I bring in the alternate,
that means that you have to begin your
deliberations from scratch. If that causes you
a problem, you can take that up with Juror No.
6 in a nonviolent manner.
Smith’s counsel stated he would object to the court’s
proposal to discharge Juror No. 6 for misconduct and select
an alternate juror so that the jury could determine whether it
could reach a verdict on the sentencing enhancement alleged
in Count III. The trial court did not invoke the procedure it
had contemplated. Instead, it stated, “I’m going to go back,
12 SMITH V. SWARTHOUT
I’m going to poll the jury as to Counts III and IV, period.
And I will not discuss the special finding at this time.”
The court then asked Juror No. 1, “[A]re these your
verdicts as to Counts III and IV?” Juror No. 1 replied, “No.”
The court then stated: “The forms indicate that the jury has
found Mr. Smith guilty of Count III, spousal abuse; guilty of
Count IV, criminal threats. Juror No. 1, is this your verdict
as to those two counts?” Juror No. 1 replied, “Yes, sir. It is.”
When polled by the court, the remaining jurors indicated
unanimously that they had found Smith guilty of the
substantive crimes alleged in Counts III and IV. The court
then asked the clerk to enter the verdicts of guilty for the
substantive crimes alleged in Counts III and IV of the
information, and to dismiss the sentence enhancement for
Count III. Smith was sentenced to serve two indeterminate
sentences of 25 years to life concurrently. He timely
appealed the judgment.
II
The California Court of Appeal affirmed the trial court’s
judgment on direct appeal. It first addressed Smith’s
challenges to Juror No. 6’s failure to mention during voir dire
that he had read about the case and that his daughter knew
Smith. It concluded that the record supported the trial court’s
implied finding these omissions were not intentional. The
Court of Appeal also credited the trial court’s finding that
Juror No. 6 could be fair and impartial because the trial court
“was in the best position to make that determination.”
Regarding Smith’s outside research during jury deliberations,
it held that the research alone did not warrant a new trial
SMITH V. SWARTHOUT 13
because Smith had effectively conceded that it “‘was not
inherently prejudicial.’”
The California Court of Appeal then turned to Smith’s
challenges to the trial court’s taking of the jury’s verdict on
Counts III and IV. It rejected Smith’s “claim that the verdicts
were not ‘entirely unanimous’” because “[t]he court correctly
perceived that Juror No. 1 had not understood that, unlike the
inquiry moments before, the court’s present inquiry did not
include the special allegation on count III,” and “[w]hen the
court clarified . . . , Juror No. 1 indicated that this was the
jury’s verdict.” Lastly, the Court of Appeal addressed
Smith’s claim that the trial court coerced members of the jury
by stating that it would discharge Juror No. 6, seat the
alternate juror, and restart deliberations. The Court of Appeal
held that the contention lacked merit because “it was only the
count III special allegation that had not been resolved;” the
jury had already reached a decision on Counts III and IV at
the time these statements were made.
III
The California Supreme Court summarily denied the
petition for review. Smith, acting pro se, filed a § 2254(a)
federal habeas corpus petition. He alleged that (1) the state
trial court erred in denying his motion to discharge Juror No.
6 because that juror “had intentionally consealed [sic]
material information during voir dire,” (2) he was “entitled to
a new trial because of deliberate jury misconduct that
deprived him of his Federal Constitutional Right to a Jury
Trial and due process,” and (3) “several irregularities
involving the taking of the jury verdicts by the trial court . . .
deprived [him] of his Federal Constitutional Right to a jury
trial and violated California Penal Codes § 1149 and § 1163.”
14 SMITH V. SWARTHOUT
The district court denied Smith’s federal habeas corpus
petition and declined Smith’s request to issue a certificate of
appealability. A motions panel of this Court issued a
certificate of appealability for two issues: “(1) whether the
trial court’s refusal to dismiss Juror No. 6, for cause, violated
appellant’s constitutional right to a fair and impartial jury;
and (2) whether any alleged juror misconduct during
deliberations and/or irregularities in the trial court’s
acceptance of final verdicts resulted in constitutional
violations.”
IV
We review de novo the district court’s denial of Smith’s
federal habeas corpus petition. Lemke v. Ryan, 719 F.3d
1093, 1096 (9th Cir. 2013). Because Smith filed his petition
after April 24, 1996, the deferential standards set forth in the
Antiterrorism and Effective Death Penalty Act (“AEDPA”)
govern our review. Id. Under AEDPA, habeas relief can
only be granted if the state court proceeding adjudicating the
claim on the merits (1) “resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States,” or (2) “resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1), (d)(2).
We review the California Court of Appeal’s decision in
this matter, as it is the “last reasoned state court decision”
addressing his claims. Lemke, 719 F.3d at 1096.
SMITH V. SWARTHOUT 15
A
Smith claims that the state trial court should have
discharged Juror No. 6 because he “engaged in a pattern of
willful concealment and withholding of material information
from the trial court and the attorneys” during voir dire. He
asserts a violation of the Sixth and Fourteenth Amendments
for “actual bias based upon a juror’s untruthfulness on voir
dire,” and argues that the California Court of Appeal’s
rejection of this claim was contrary to McDonough Power
Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984).
To obtain a new trial based on a juror’s failure to disclose
information 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.”2
McDonough Power Equip., Inc., 464 U.S. at 556. “The
Supreme Court has held that an honest yet mistaken answer
to a voir dire question rarely amounts to a constitutional
violation; even an intentionally dishonest answer is not fatal,
so long as the falsehood does not bespeak a lack of
impartiality.” Dyer, 151 F.3d at 973 (citing McDonough
Power Equip., 464 U.S. at 555–56).
“Whether a juror is dishonest is a question of fact.”
Fields v. Brown, 503 F.3d 755, 767 (9th Cir. 2007) (en banc)
2
“The presence of a biased juror cannot be harmless; the error requires
a new trial without a showing of actual prejudice.” Dyer v. Calderon,
151 F.3d 970, 973 n.2 (9th Cir. 1998) (en banc) (citing United States v.
Allsup, 566 F.2d 68, 71 (9th Cir. 1977)). “[T]he presence of a biased juror
introduces a structural defect not subject to harmless error analysis.” Id.
(citing Arizona v. Fulminante, 499 U.S. 279, 307–10 (1991)).
16 SMITH V. SWARTHOUT
(citing Dyer, 151 F.3d at 973). The assessment of juror bias
is “essentially one of credibility, and therefore largely one of
demeanor.” Patton v. Yount, 467 U.S. 1025, 1038 (1984).
“[T]he trial court’s resolution of such questions is entitled . . .
to ‘special deference.’” Id. (citing Bose Corp. v. Consumers
Union of U.S., Inc., 466 U.S. 485, 500 (1984)).
During voir dire, the state trial court asked Juror No. 6
whether any “red flag goes up” or there was anything the
parties should know. But no specific inquiries were made of
Juror No. 6 as to his prior knowledge of Smith. Shortly
before the jury was selected and dismissed for the evening,
defense counsel asked Juror No. 6 if he had read about the
case in the newspaper; Juror No. 6 remained silent.
The following morning, Juror No. 6 returned to the court
and explained his failure to respond to these questions. He
stated that he had not mentioned reading about the case in the
newspaper because he had been out of town and had not read
the paper for two months; anything he had read previously
had not made a “big impact” on him. The state trial court
found Juror No. 6’s explanation for his failure to respond to
the questions posed during voir dire was credible. It
concluded that Juror No. 6 would act fairly and impartially.
In its review of the record on appeal, the California Court of
Appeal determined that the record demonstrated that Juror
No. 6’s omissions during voir dire were unintentional.
The state trial court concluded Juror No. 6 had credibly
testified that he would be a fair and impartial juror. Nothing
in the record suggests that this conclusion was unreasonable.
Accordingly, the California Court of Appeal’s decision was
not “based on an unreasonable determination of the facts in
SMITH V. SWARTHOUT 17
light of the evidence presented during the State court
proceedings.” 28 U.S.C. § 2254(d)(2).
B
Smith asserts that the California appellate court erred in
rejecting his claim that Juror No. 6 also violated the Sixth and
Fourteenth Amendments by examining the labels of his
wife’s medicine, conducting an internet search, lying about
the internet search, and discussing his findings with the jury.3
“In the constitutional sense, trial by jury in a criminal case
necessarily implies at the very least that the ‘evidence
developed’ against a defendant shall come from the witness
3
Smith raises additional contentions with respect to Juror No. 6’s
actions during jury deliberations, none of which we can consider on
appeal. First, he argues that Juror No. 6’s actions demonstrate an implied
bias, requiring reversal. We construe Smith’s pro se habeas corpus
petition liberally, as we must, Woods v. Carey, 525 F.3d 886, 889–90 (9th
Cir. 2008), but conclude that it did not raise this issue. And,
unsurprisingly, the district court did not address it in its decision. Because
Smith did not preserve this claim, we cannot consider it. See Tong Xiong
v. Felker, 681 F.3d 1067, 1075 (9th Cir. 2012) (“‘Habeas claims not raised
in the petition before the district court are not cognizable on appeal.’”
(quoting Belgarde v. Montana, 123 F.3d 1210, 1216 (9th Cir. 1997))),
cert. denied, 133 S. Ct. 989 (2013).
Second, Smith asserts that Juror No. 6 should have been removed for
good cause under California Penal Code § 1089 when he violated the state
trial court’s instructions not to conduct any outside research. Because we
only have jurisdiction under 28 U.S.C. § 2254(d)(1) to review violations
of clearly established federal law on habeas corpus review, we cannot
consider Smith’s state law claim. See Grotemeyer v. Hickman, 393 F.3d
871, 877 (9th Cir. 2004) (“A federal court of appeals considering a
petition for a writ of habeas corpus does not review state court decisions
pursuant to state law like a state appellate court.”).
18 SMITH V. SWARTHOUT
stand in a public courtroom where there is full judicial
protection of the defendant’s right of confrontation, of
cross-examination, and of counsel.” Turner v. Louisiana,
379 U.S. 466, 472–73 (1965); see also Estrada v. Scribner,
512 F.3d 1227, 1238 (9th Cir. 2008) (“The Sixth Amendment
guarantee of a trial by jury requires the jury verdict to be
based on the evidence produced at trial.” (citing Jeffries v.
Wood, 114 F.3d 1484, 1490 (9th Cir. 1997) (en banc),
overruled on other grounds by Gonzalez v. Arizona, 677 F.3d
383, 389 n.4 (9th Cir. 2012) (en banc))). However, “[o]n
collateral review, trial errors—such as extraneous information
that was considered by the jury—are generally subject to a
‘harmless error’ analysis, namely, whether the error had
‘substantial and injurious’ effect or influence in determining
the jury’s verdict.” Estrada, 512 F.3d at 1235 (quoting
Jeffries, 114 F.3d at 1491); see also Fields, 503 F.3d at 781
(applying the harmless error standard under Brecht v.
Abrahamson, 507 U.S. 619 (1993), in reviewing juror
misconduct claims); Henry v. Ryan, 720 F.3d 1073, 1085 (9th
Cir. 2013) (same). Factors weighed by this Court in
determining whether the introduction of extrinsic evidence
was harmless under Brecht include:
(1) whether the material was actually
received, and if so, how; (2) the length of time
it was available to the jury; (3) the extent to
which the juror discussed and considered it;
(4) whether the material was introduced
before a verdict was reached, and if so at what
point in the deliberations; and (5) any other
matters which may bear on the issue of the
reasonable possibility of whether the extrinsic
material affected the verdict.
SMITH V. SWARTHOUT 19
Estrada, 512 F.3d at 1238 (citing Sassounian v. Roe, 230 F.3d
1097, 1109 (9th Cir. 2000)). “While instructive, none of
these factors should be considered dispositive.” Jeffries v.
Blodgett, 5 F.3d 1180, 1190 (9th Cir. 1993) (citing Dickson
v. Sullivan, 849 F.2d 403, 406 (9th Cir. 1988)). We “apply
the Brecht test without regard for the state court’s
harmlessness determination.’” Pulido v. Chrones, 629 F.3d
1007, 1012 (9th Cir. 2010) (citing Fry v. Pliler, 551 U.S. 112,
121–22 (2007)).
The record shows that the jury had already reached its
verdict on whether Smith was guilty of the substantive
offenses set forth in Counts III and IV prior to Juror No. 6’s
disclosure of extrinsic evidence to his fellow jurors. The state
trial judge declared a mistrial as to Counts I and II because of
Juror No. 6’s misconduct and dismissed the sentencing
enhancement in Count III. Accordingly, Juror No. 6’s
consideration of extrinsic evidence did not have a substantial
and injurious effect or influence in determining the jury’s
verdict on Counts III and IV, in violation of the Sixth and
Fourteenth Amendments.
C
Smith also argues that his right to a unanimous jury under
California Penal Code § 1163 and the federal Constitution
was violated because the state trial court did not order the
jury to resume its deliberations after Juror No. 1 stated during
the polling of the jury that he did not vote to find Smith guilty
of Counts III and IV, and that the California appellate court
erred in holding to the contrary. We disagree. We are
persuaded that the California Court of Appeal’s determination
that the jury verdict for the substantive crimes alleged in
Counts III and IV was unanimous was not “based on an
20 SMITH V. SWARTHOUT
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2).
The record reflects that Juror No. 1 initially responded
that the verdict signed by the foreperson did not reflect his
vote because he understood that the trial court was asking not
only about his acquiescence in the verdict for the substantive
crimes alleged in Counts III and IV, but also the sentencing
enhancement in Count III. The California Court of Appeal
determined that “Juror No. 1 had not understood that, unlike
the inquiry moments before, the court’s present inquiry did
not include the special allegation on count III.” It concluded
that after the trial court asked whether he voted Smith guilty
of the substantive crimes set forth in Counts III and IV, Juror
No. 1 stated that he had voted to find him guilty.
The record supports the California Court of Appeal’s
finding that the guilty jury verdict was unanimous on Counts
III and IV. Accordingly, its decision was not “based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”4 28 U.S.C.
§ 2254(d)(2).
D
Lastly, Smith maintains that the trial court’s suggestion in
the presence of the jurors that if they had failed to reach a
4
We also note that Smith failed to cite clearly established federal law to
support his contention that a non-unanimous jury verdict would violate his
constitutional rights. The Supreme Court has instructed that the Sixth and
Fourteenth Amendments do not require a unanimous verdict in state
criminal prosecutions. Apodaca v. Oregon, 406 U.S. 404, 407–12 (1972).
SMITH V. SWARTHOUT 21
unanimous verdict on the sentencing enhancement allegation
in Count III, it would be required to discharge Juror No. 6,
seat an alternate, and order the jury to begin deliberations
anew was coercive in violation of federal due process. The
only Supreme Court case cited by Smith to support this
argument is Jenkins v. United States, 380 U.S. 445 (1965)
(per curiam). In Jenkins, the Supreme Court reversed the
judgment in a federal criminal trial based on the trial judge’s
statement to the jury during deliberations that they had to
reach a decision in the case. Id. at 446. However, the
Supreme Court subsequently instructed that its discussion in
Jenkins “was based on [its] supervisory power over the
federal courts, and not on constitutional grounds.” Early v.
Packer, 537 U.S. 3, 10 (2002) (per curiam). Because Smith
has failed to state a due process claim in violation of clearly
established federal law as determined by the Supreme Court,
we cannot reach this issue on federal habeas corpus review.
28 U.S.C. § 2254(a).
CONCLUSION
We affirm the district court’s denial of Smith’s federal
habeas corpus petition. The California Court of Appeal’s
decision denying his appeal was not contrary to clearly
established federal law and was not based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding. 28 U.S.C. § 2254(d)(1), (d)(2).
AFFIRMED.