Marcus Blair, Jr. v. L. Chrones ( 2011 )

FILED
NOT FOR PUBLICATION OCT 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARCUS QUINN BLAIR, Jr., No. 10-15434
Petitioner - Appellant, D.C. No. 2:06-cv-00556-LKK-
DAD
v.
L. CHRONES, Warden and KELLY MEMORANDUM *
MICHELLE CROXTON, Deputy
Attorney General,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted September 13, 2011
San Francisco, California
Before: THOMAS and N.R. SMITH, Circuit Judges, and OLIVER, Chief District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for Northern Ohio, Cleveland, sitting by designation.
Marcus Quinn Blair, Jr. appeals the district court’s denial of his 28 U.S.C.
§ 2254 petition challenging his jury conviction for murder. Blair seeks relief
alleging (1) two claims of juror misconduct depriving him of the right to a fair
trial—(A) Juror No. 2’s use of a legal dictionary to define “reasonable” and “heat
of passion” to other jurors and (B) jurors’ sharing of their “expertise” on ballistics
with other jurors—and (2) trial court error in answering a jury question violating
his due process rights. We review de novo the district court’s denial of a state
prisoner’s habeas petition, Parle v. Runnels, 505 F.3d 922, 926 (9th Cir. 2007), and
we affirm.
When considering prejudice due to juror misconduct or an erroneous jury
instruction, we must determine “whether the . . . error had substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507
U.S. 619, 623 (1993) (internal quotation marks and citation omitted). The
Supreme Court explained “that we need not conduct an analysis under AEDPA of
whether the state court’s harmlessness determination on direct review . . . was
contrary to or an unreasonable application of clearly established federal law.”
Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010) (quoting Fry v. Pliler, 551
U.S. 112, 119–20 (2007). “Accordingly, we apply the Brecht test without regard
for the state court’s harmlessness determination.” 629 F.3d at 1012.
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1. Juror Misconduct.
For the purposes of its analysis, the California Court of Appeal assumed the
jurors committed misconduct in both circumstance(s) (A) and (B). However, the
court concluded that the misconduct was harmless. We agree. Assuming that the
juror’s behavior was constitutionally cognizable misconduct, it did not
substantially and injuriously affect or influence the jury’s verdict. See Brecht, 507
U.S. at 623.
A. Applying the factors set forth in Sassounian v. Roe, 230 F.3d 1097,
1109 (9th Cir. 2000), the introduction of the dictionary in jury deliberations was
not prejudicial. The record suggests that the jury followed the instruction given by
the court and admonished the offending juror that use of the dictionary was
improper. Thus, the exposure to the extrinsic material was limited. The conduct of
the jurors suggests that they did not consider the prohibited material in defining
any terms. See Brown v. Ornoski, 503 F.3d 1006, 1018 (9th Cir. 2007) (“The trial
court properly instructed the jury to disregard any extraneous comments and to
decide the case based only on the evidence at trial; juries are presumed to follow
the court’s instructions.”). Instead, the jurors asked the court for clarification of
the definition of the terms after the incident. Although the trial court was unaware
of the misconduct at the time, it effectively gave a curative instruction when it
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directed the jury to the appropriate jury instruction explaining these terms.
Further, the evidence supporting Blair’s conviction was overwhelming. Thus, the
introduction of dictionary definitions did not substantially and injuriously affect or
influence the jury’s verdict.
B. Assuming misconduct and again applying the Sassounian factors, the
jurors’ discussion regarding ballistics during jury deliberations was not prejudicial.
Second degree murder requires a conscious disregard for life. People v. Perez, 234
P.3d 557, 562 (Cal. 2010) (“Murder does not require the intent to kill. Implied
malice—a conscious disregard for life—suffices.”). The record shows that Blair
shot a rifle at the victim six times. The record shows the victim was running away
from Blair at the time the shots were fired.
Blair argues that the bullet’s trajectory was crucial to his self-defense
theory—that an upward straight path would suggest an unaimed shot more
consistent with manslaughter whereas a parallel bullet trajectory, bouncing
upwards would suggest an aimed shot more consistent with murder. Blair argues
that a straight upward wound channel (as the pathologist testified) shows that he
shot the rifle from the hip and thus did not aim the gun at the victim to kill. Blair
then argues that the jurors’ comments about the bullet’s trajectory contradicted that
of the pathologist. However, whether the bullet went straight through or bounced
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around in the victim’s body (as the jury discussed) is not material to the jury’s
determination that Blair was guilty of murder in the second degree. Blair’s
shooting of the rifle (aimed or unaimed) six times at the victim while he was
running away constitutes substantial evidence for the jury to find that Blair’s
actions demonstrate a conscious disregard for life. Thus, the jurors’ comments
about ballistics did not substantially and injuriously affect or influence the jury’s
verdict.
2. The trial court’s response to the jury’s question, considered in the context of
the instructions as a whole and the trial record, did not violate Blair’s due process
rights. See Estelle v. McGuire, 502 U.S. 62, 71–72 (1991). The response was a
correct statement of state law. The trial court read the agreed upon jury instruction.
The court’s additional statement did not alter the instruction. Accordingly, Blair’s
due process claim fails, because he has not demonstrated that the alleged error had
a “substantial and injurious effect on the verdict.” Brecht, 507 U.S. at 623.
AFFIRMED.
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