Steven Ray LAWSON, Petitioner-Appellee, v. Robert G. BORG, Warden, Respondent-Appellant ( 1995 )

TROTT, Circuit Judge,

Dissenting:

For the reasons given by Magistrate Judge Hollows in his thorough Findings and Recommendations dated June 8, 1994, I respectfully believe that the error in this case has not been demonstrated to have had any substantial and injurious effect on the jury’s verdict. Thus, I would reverse the judgment of the district court. Because I cannot improve on Judge Hollows’ excellent analysis, I will simply quote it (without indentation or footnotes) as it pertains to this key issue:

Findings and Recommendations

2. The Scott Information Did Not Have a Substantial and Injurious Effect on the Jury’s Verdict

The court does not understand respondent to dispute the seriousness of the juror misconduct alleged against Scott in the sense that submission of extraneous information on the issues of the case is serious in the abstract — indeed the receipt of extraneous information is constitutional error. Certainly, the facts of Dickson illustrate the potential seriousness of the misconduct here. However, respondent reasonably questions the seriousness of the prejudicial effect of the receipt of the prejudicial information on the jury verdict.

As referenced above, the Ninth Circuit mandates that the analysis of the prejudice of juror misconduct is judged by the current, habeas harmless error standard announced in Brecht adopting the test set forth in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946):

‘The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.’

Jeffries, 5 F.3d at 1190.

Jeffries listed several factors that might be of assistance in determining whether the error had substantial effect, and the court will analyze those infra. However, the ultimate question is whether it can be concluded that extrinsic evidence had a substantial effect on the verdict. The court will commence its objective prejudice analysis with this point in mind.

When viewed totally in the abstract, this court maintains its previously expressed opinion that the misconduct was prejudicial. As set forth above, the amount of force used by petitioner on the day of the homicide was an important issue in determining the intent of the petitioner to rob and kill his victim. As it is in many murder eases, intent was a critical and hotly disputed issue determined from inferences of conduct on the incident day. The court quotes from its prior order:

On the issue of prejudice, the Court of Appeal held:

Defendant’s reputation and violent personality, however, was simply irrelevant to either side’s theory of the ease. The record indisputably shows that defendant acted with great violence during the fatal encounter with the Avila family....

# # i¡: í¡í íj?

The issue at trial was not whether defendant acted violently but, rather, the meaning of the violence.... Nothing in Scott’s alleged misconduct could have distracted the jury from their consideration of the meaning of defendant’s admittedly violent and stupid conduct.

Appellate Opinion at 18-19.

This court does not disagree with the Court of Appeal that the “meaning” of the violence was the important issue with which the jury had to grapple. However, some of the most potent evidence that can be utilized to determine that meaning is evidence of “prior bad acts” or “reputation.” That is, if a person is predisposed to violence, and has exhibited that violence before, it is much more likely that the defendant intended to be violent in a meaningful way with respect to the act at issue, i.e., he exhibited the specific intent to steal as opposed to some other less sinister motive. Indeed, rules of evidence have emphasized the significance of such outside character evidence in proving an accused’s propensity to act in a certain manner, Fed.R.Evid. 404(a), or intent, motive, and the like on a given occasion— Fed.R.Evid. 404(b). Although the petitioner was certainly violent on the day of the incident, the meaning of that violence — an issue that apparently troubled the jury— could well have been decided based on past acts or reputation.

Nor is it important that not all jurors may have been affected. If even one juror was tainted, the Ninth Circuit has held that the defendant has been denied a fair trial. Dickson, 849 F.2d at 408.

Order, November 2, 1993.

Moreover, Fed.RJEvid. 404(a), 405(a), and state evidence rules like it, specifically note that reputation in the community may be utilized to prove a trait of character of the accused. The court assumes that the evidence rule is premised upon the fact that such information is probative, and can affect the outcome of a verdict.

Nevertheless, the jury in this case did not decide the verdict in the abstract. It decided the verdict with all the evidence in mind— record evidence that included several violent acts on the part of petitioner. In comparing the admissible evidence of petitioner’s violence with the extraneous evidence, the court finds the effect of the reputation evidence describing an extraneous propensity for violence to have been diluted to the point where it did not have a substantial and injurious effect on the verdict.

As noted by respondent, the evidence at trial showed that petitioner had scouted the house of the victim prior to arriving at that residence with guns drawn and camouflage clothing. RT 424. The evidence showed that petitioner was a cocaine drug trafficker — an occupation quite frequently associated with violence. Just prior to going to Avila’s house, petitioner discharged a shotgun into his girlfriend’s mother’s waterbed, RT 436, 468, having had a previous argument with his girlfriend’s mother. Petitioner actively discussed shooting Avila in the foot for compliance purposes. RT 467. After petitioner and his co-defendant confronted the victim Avila, violence was used right away, i.e., the victim was compelled to get on his knees at gunpoint. Petitioner (who was characterized as the “driver” of the vehicle that pulled up to the Avila residence) shouted in a very “violent” voice for Avila to get on his knees and, “T have a contract on you. You are dead, motherfucker.’ ” RT 217. Later, petitioner held Mrs. Avila on her stomach at gunpoint; when she attempted to get up, petitioner put the shotgun to her head and responded: “ You think you are getting up, Bitch? I will blow your head off right now.’ ” RT 222. Still later, Mrs. Avila was able to temporarily escape, and get her child while in the process of being chased by petitioner. He told her: “ ‘I’m going to kill you. I have to kill you. I’m going to kill you right now.’ ” RT 234.

Meanwhile, Mr. Avila had somehow been able to go into his house to procure a weapon, come back outside, and shoot petitioner’s co-defendant. Petitioner then ran to where Avila was present, and shot him with the shotgun.

Again, the issue before the court is whether the extraneous information about Lawson’s reputation or propensity for violence added to the information already before the jury, such that a reasonable juror could not but have been significantly affected by presentation of the extraneous evidence. In the scheme of evidentiary impacts, the vivid and specific instances of violence are sufficiently more damaging to petitioner than the later confirmatory reputation evidence such that this court concludes that the reasonable juror would not be significantly affected.

In addition, the other criteria for judging the impact of juror misconduct referenced in Jeffries weighs on balance in favor of finding the lack of a significant (substantial and injurious) impact. The extraneous material was evidently received in such a manner that not all jurors heard the statements. The evidence at evidentiary hearing demonstrated that no juror discussed the extraneous material at any length. The statements were made, and the jury went on to other evidence in their deliberations. However, the jury did receive the extraneous material prior to the time any verdict had been formed, and this one criteria weighs in favor of the petitioner.

The parties should not believe that this court has not struggled with the decision here. The determination here is extremely close. The defense case produced colorable evidence that petitioner and his co-defendant had not formed any specific intent to kill or rob, but simply, stupidly let an initial “scare tactic” escalate to the point where events went out of control, and a homicide occurred. There is the possibility that jurors, who were on the fence about the evidence of intent were finally confirmed in their decision to vote guilty on first degree murder with special circumstances on account of the confirmation of petitioner’s violent tendencies. However, while the court recognizes this possibility, it ultimately believes that the confirmatory evidence has been demonstrated to be less than “substantial and injurious.”

ACCORDINGLY, this court [Judge Hollows] recommends that the petition for habe-as corpus be denied.