Larry Acosta v. Mike Evans ( 2011 )

FILED
NOT FOR PUBLICATION APR 29 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LARRY ACOSTA, No. 08-55537
Petitioner - Appellant, D.C. No. 5:05-CV-00443-JFW-
FMO
v.
MIKE EVANS, Warden, MEMORANDUM *
Respondent - Appellee.
GABRIEL AVILA, No. 08-55541
Petitioner - Appellant, D.C. No. 5:05-cv-00447-JFW-
FMO
v.
JAMES WALKER,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted April 14, 2011
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WARDLAW, BYBEE, and M. SMITH, Circuit Judges.
Larry Acosta (“Acosta”) and Gabriel Avila (“Avila”) (collectively,
“Petitioners”) appeal the district court’s denial of their habeas petition. We have
jurisdiction under 28 U.S.C. § 2253(a) and affirm.
The California Court of Appeal was not objectively unreasonable in
concluding that Jurors 4 and 6 were not dishonest during voir dire. See
McDonough Power Equip. Inc. v. Greenwood, 464 U.S. 548, 556 (1984) (“[T]o
obtain a new trial . . . a party must first demonstrate that a juror failed to answer
honestly a material question on voir dire.”). Although the two jurors did not fully
disclose the details of their military backgrounds during voir dire, the questions
they answered were not phrased in a way that required them to do so.
With respect to the jury tampering claim, we agree with the district court that
the state courts erred in failing to shift the burden to the prosecution to prove lack
of prejudice. See Remmer v. United States, 347 U.S. 227, 229 (1954) (“In a
criminal case, any private communication, contact, or tampering directly or
indirectly, with a juror during a trial about the matter pending before the jury is . . .
deemed presumptively prejudicial. . . .”). Because this was contrary to clearly
established federal law, we review the jury tampering claim de novo. See Frantz v.
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Hazey, 533 F.3d 724, 737 (9th Cir. 2008) (en banc). Nonetheless, as the district
court found, the record shows that Petitioners were not prejudiced by the trial
court’s decision to keep Jurors 10 and 12 on the panel. In considering whether
“unauthorized communication between a juror and a third party . . . raised a risk of
influencing the verdict,” we examine “the length and nature of the contact, the
identity and role at trial of the parties involved, evidence of actual impact on the
juror, and the possibility of eliminating prejudice through a limiting instruction.”
Caliendo v. Warden, 365 F.3d 691, 697–98 (9th Cir. 2004). Here, the call was
directed only at Juror 5; Jurors 10 and 12 only learned of the message when Juror 5
played it for them to determine whether it was a joke or a serious threat. The
source of the call was unknown, and could not be attributed to Petitioners. In
response to questioning from the trial court, Jurors 10 and 12 repeatedly and
unequivocally stated that their knowledge of the message would have no impact on
their deliberations. Finally, any potential for prejudice was minimized by the trial
court’s clear instructions to Jurors 10 and 12 to disregard the message and not to
discuss the incident with the other jurors. Petitioners therefore suffered no
prejudice when the trial court declined to dismiss Jurors 10 and 12.
The California Court of Appeal did not unreasonably apply federal
constitutional law in affirming the trial court's decision to strike Avila's testimony
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after he refused to identify a percipient witness (and potential accomplice) on
cross-examination. See 28 U.S.C. § 2254(d)(1). Once a defendant chooses to take
the stand, he “opens himself to cross-examination,” United States v. Panza, 612
F.2d 432, 438 (9th Cir. 1979), and “may no longer refuse to answer questions
regarding unprivileged matters reasonably related to his direct testimony,” id.(citing Brown v. United States, 356 U.S. 148, 155–57 (1958)). There is no doubt
that the identity of this individual was “reasonably related to [Avila’s] direct
testimony.” Id. Prosecution witnesses had testified that the unidentified individual
accompanied the Petitioners throughout the incident, and participated in the assault
and the murder. Avila himself admitted that this person accompanied him
throughout the incident. The identity of this person was also relevant to the
prosecution’s argument that the murder was gang-related. Finally, had Avila
identified this individual, the person could have been called to testify to either
verify or impeach Avila’s testimony.
Before deciding to strike all of Avila’s testimony, the trial court considered
less drastic remedies, such as striking only a portion of the testimony, or placing
Avila’s testimony about the unnamed witness under seal. Only after deeming these
solutions unworkable did the trial court strike Avila’s testimony in full.
Considering these circumstances, the California Court of Appeal reasonably
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concluded that the trial court's decision was not “arbitrary or disproportionate.”
Rock v. Arkansas, 483 U.S. 44, 56 (1987).
AFFIRMED.
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