Robert TURNER, Petitioner-Appellant, v. Charles D. MARSHALL, Warden, Respondent-Appellee
Docket: 93-55477
Court: Court of Appeals for the Ninth Circuit; August 2, 1995; Federal Appellate Court
Robert Turner appeals the denial of his habeas corpus petition following his state conviction for felony murder, robbery, burglary, and use of a dangerous weapon. He raises several constitutional claims, including: (1) the prosecutor's use of peremptory challenges to exclude African-Americans from the jury, violating the Equal Protection Clause; (2) a readback of testimony conducted without his presence or that of his counsel, infringing his Sixth Amendment rights; (3) insufficient evidence for the felony murder conviction; (4) improper comments on attorney-client privilege by the prosecutor; (5) prosecutorial misconduct affecting his due process rights; (6) failure to instruct the jury on the lesser included offense of theft; (7) discouragement of jury requests for testimony readbacks; and (8) erroneous use of jury instructions regarding consciousness of guilt. The Ninth Circuit holds jurisdiction under 28 U.S.C. § 1291 and remands for an evidentiary hearing on the claims concerning race-based jury selection and the readback testimony issue. The court affirms the denial of the petition regarding the remaining claims.
The background details the murder of Roy Hunt on May 24, 1988, and subsequent burglary. Evidence linked Turner to the crimes, including his possession of Hunt's belongings and blood and saliva samples matching his DNA found at the crime scene. Turner admitted to participating in the June 4 burglary but denied involvement in the murder. His defense claimed he was misled by another individual, though this was contradicted by witness testimony.
Turner was convicted of first-degree felony murder, robbery, burglary, and use of a dangerous weapon, resulting in a life sentence without the possibility of parole. His appeal to the California Court of Appeal was denied, as was his petition for a writ of habeas corpus in federal court. The review of the habeas corpus denial is conducted de novo.
Turner, an African-American, contends that the trial court wrongly concluded he did not establish a prima facie case of racial discrimination in the prosecution's peremptory challenges, violating the Equal Protection Clause. During jury selection, the prosecution used five of nine peremptory challenges to exclude African-Americans, while Turner's counsel excluded two African-American men. The trial judge noted the absence of a discriminatory pattern and that several racial minority members remained on the jury, thus choosing not to investigate the prosecutor's motives further.
Under Batson v. Kentucky, a prosecutor's racially discriminatory use of peremptory challenges violates equal protection. To establish a prima facie case, a defendant must show membership in a cognizable racial group, that the prosecution removed members of that group, and that circumstances create an inference of race-based motivation. Once established, the burden shifts to the prosecution to provide a race-neutral explanation for its challenges.
Turner focuses on the exclusion of black men from the jury, despite the presence of African-American women. However, neither the Supreme Court nor the Ninth Circuit recognizes "black men" as a cognizable group under Batson. Previous rulings from other circuits support that defendants cannot claim Batson violations based on the exclusion of "black men" or "black women."
The court considers whether African-American men can form a Batson class for challenging peremptory strikes based on race, but declines to address this issue as any new rule would not apply to Turner's case. Instead, the focus is on whether Turner has established a prima facie case of racial discrimination in the exclusion of African-American jurors. Turner meets the initial criteria for this case, with the central question being whether the circumstances raise an inference of racial exclusion that warrants examination of the prosecutor's motives.
Turner notes that the prosecutor excluded five out of nine African-American venirepersons, suggesting a discriminatory pattern. Past cases support that the exclusion of minority jurors can indicate discrimination, regardless of whether all minority jurors were struck. Although the prosecutor's decision not to remove all African-American jurors weakens Turner's claim, it does not negate it. The court references previous decisions affirming that even when some minority jurors remain, significant exclusions can still indicate discrimination. Ultimately, the exclusion of five out of nine African-American jurors is deemed sufficient to establish a pattern of discrimination warranting further inquiry.
The prosecution demonstrated a pattern of discrimination by utilizing a substantial portion of its peremptory challenges against African-American venirepersons, specifically challenging five out of nine total challenges against this group. In previous cases, such as Montiel, a similar ratio raised inferences of discrimination. While the complete racial demographics of the venire are not documented, approximately 30% of the 37 venirepersons were African-American, yet 56% of peremptory challenges were directed at them, indicating a significant disparity. This pattern supports an inference of discrimination based on two metrics: the percentage of African-American venirepersons challenged and the percentage of challenges directed at them.
Additionally, the state trial judge's reliance on the presence of some African-Americans on the jury to dismiss claims of discrimination was inappropriate. The judge failed to consider the prosecutor's conduct and the reasons behind the strikes, which are critical factors in assessing potential discrimination, as established in past rulings. The court should not have solely depended on the final jury composition to conclude there was no discrimination, as even one racially motivated exclusion violates the Batson standard.
Overall, the evidence presented established a prima facie case of Batson violation, suggesting that the trial court erred by not investigating the prosecutor's motives for the peremptory challenges. Consequently, the case is remanded for an evidentiary hearing to explore these motives.
Separately, Turner contends that testimony was read back to the jury without his or his counsel's presence, which he claims violates his rights under the Confrontation Clause of the Sixth Amendment. The government argues that the record lacks clarity to support this claim, but the court disagrees.
The government acknowledges discrepancies between the reporter's transcript and the clerk's transcript regarding the readback of testimony to the jury on March 20, 1990. The reporter read back testimony in the jury room without the defendant, Turner, or his counsel present. The clerk's transcript indicates that Turner's counsel was notified of the readback and that both were present in court that day; however, this does not demonstrate their presence in the jury room, which is crucial. Previous rulings establish that a defendant's absence during testimony readbacks constitutes constitutional trial error.
The government contends that Turner waived his right to be present during the readback. However, this argument is rejected based on several reasons: (1) a prior agreement allowed for tape playback but did not extend to live readbacks, (2) Turner's attorney had reviewed the tape and transcript beforehand, and (3) the potential for prejudice is greater with live readbacks compared to tape playbacks. Moreover, notification to counsel does not suffice as a waiver of Turner's right, as personal waiver by the defendant is required.
The readback conducted without Turner present is deemed a constitutional error. Under established precedent, such errors are subject to harmless error analysis, which in a habeas context requires that the error must have had a "substantial and injurious effect" on the jury's verdict. Previous cases determined harmless error only after evidentiary hearings where relevant parties were questioned. An evidentiary hearing may be bypassed only if the record unequivocally indicates no prejudice.
No attempts were made to address potential prejudice or analyze the circumstances surrounding the readback of testimony, which is critical as it pertained to key blood test evidence. An evidentiary hearing is mandated for a habeas corpus petition when a petitioner’s allegations, if substantiated, would justify relief, particularly since no state court has established the relevant facts through a thorough hearing. The risk of prejudice is heightened given that the case relied on circumstantial evidence, with the defendant's credibility and the reliability of minute blood and saliva samples being pivotal. Consequently, the matter is remanded to the district court for a hearing to ascertain whether the readback error was harmless.
Turner contests the sufficiency of evidence for his felony murder conviction and the associated "robbery-murder special circumstance" required for a life sentence without parole. A conviction based on insufficient evidence breaches due process. Evaluating the evidence favorably for the prosecution, the court found sufficient grounds for a rational trier of fact to establish guilt beyond a reasonable doubt. The prosecution needed to demonstrate that Turner committed robbery or burglary on May 24. Evidence, including blood and saliva linking Turner to the crime scene and possession of stolen items, supported the robbery charge, as did the forceful nature of the killing. While intent to steal is necessary, the jury could infer it from the evidence presented. For the burglary charge, Turner's presence satisfied the entry requirement, and a lack of forcible entry does not negate the burglary definition.
Evidence indicated sufficient grounds to conclude that Turner committed first-degree felony murder, as his involvement in robbery or burglary, presence at the scene, and the murder of Hunt collectively supported this claim. It is established that for felony murder to apply, intent to steal must precede the murder; if the murder occurred first with theft as a subsequent thought, it would only be classified as theft, not robbery. However, California case law allows for a jury to infer intent for robbery from the circumstances of the murder and property theft, as seen in precedent cases.
Turner also contended that the evidence was adequate for the robbery-murder special circumstance, countering other cases where evidence suggested robbery was merely incidental to the murder. Notably, in cases where the defendant explicitly indicated a primary intent to kill, or where robbery was secondary, the courts found insufficient evidence for the robbery-murder special circumstance. The current case lacked such indicators, supporting the conclusion that sufficient evidence exists.
Additionally, Turner argued that the prosecutor improperly referenced the attorney-client privilege during the examination of a serology expert, potentially leading the jury to infer negatively about the defense's failure to challenge the prosecution's findings. The trial court addressed the issue by striking the statement and instructing the jury to disregard it. The court found no basis for a constitutional violation, noting that comments on the defense's lack of evidence do not infringe on federal rights, distinguishing this from cases regarding a defendant's silence. Overall, Turner's claims regarding both the murder charge and the alleged privilege violation were rejected.
Turner's assertion of a Sixth Amendment violation regarding his right to counsel is unfounded. He references United States v. Irwin, which discusses government interference with the attorney-client relationship, but the present case does not demonstrate such intrusion. His reliance on United States ex rel. Macon v. Yeager is also misplaced, as that case involved the implication of guilt through a defendant's contact with a lawyer, while the current situation involves a mere indirect reference to a defense laboratory, which does not equate to a violation. The trial court promptly addressed any potential issues by striking the comment and instructing the jury, actions that typically mitigate any possible harm.
Turner claims prosecutorial misconduct that allegedly infringes on his due process rights, asserting that the cumulative effect of these instances created an unfair trial. However, none of the incidents warrant a reversal. His main concern is the prosecutor's closing argument, which included graphic descriptions of evidence linked to the victim, deemed similar to comments upheld in Darden v. Wainwright. Therefore, these remarks do not constitute a due process violation. Additionally, a comment made by the prosecutor regarding the admission of evidence insinuated guilt indirectly, and this ambiguity does not meet the threshold for a due process violation either. Overall, the court concludes that the alleged prosecutorial misconduct does not rise to a level that would compromise Turner's rights.
Turner alleges prosecutorial misconduct, claiming the prosecutor accused him of lying during cross-examination. Despite this, case law permits a prosecutor to label a witness's testimony as lies or fabrications, even if the questioning is deemed argumentative. Turner further contends that the prosecutor employed leading questions and hearsay when examining serology expert Belmont Beasley regarding the chain of custody. While leading questions can be acceptable at the judge's discretion, they warrant reversal only if they result in a denial of a fair trial. In this instance, the judge sustained objections to leading questions, indicating no fair trial violation. Regarding hearsay, any potential prejudice must be demonstrated to justify reversal; Turner did not show that the alleged hearsay regarding blood sample custody harmed his case. Therefore, no due process violation is found concerning these allegations.
Additionally, Turner claims a due process violation due to the judge's failure to instruct the jury on theft as a lesser included offense of robbery. This argument is unsuccessful as it would necessitate the introduction of a new legal principle in a habeas corpus context. In capital cases, failure to instruct on lesser included offenses may constitute constitutional error if supported by evidence. However, since the prosecution opted against seeking the death penalty, this case is classified as noncapital, which diminishes the applicability of the cited precedents regarding lesser included offense instructions.
Beck's applicability to noncapital cases remains unresolved in legal precedent. This circuit has previously declined to recognize constitutional error from a failure to instruct on lesser included offenses in noncapital cases, as seen in Bashor v. Risley. Other circuits are divided: some assert no constitutional right exists in noncapital cases (e.g., Perry v. Smith, Trujillo v. Sullivan), while others may apply Beck to avoid a fundamental miscarriage of justice (e.g., Tata v. Carver, Nichols v. Gagnon). A few circuits have extended Beck to noncapital cases (e.g., Vujosevic v. Rafferty, Ferrazza v. Mintzes). Due to this lack of consensus, recognizing constitutional error would establish a new rule not applicable in this case under Teague. Thus, Turner's claim is rejected.
Turner also contends that the trial judge's request for the jury to avoid frivolous use of the court reporter for testimony readbacks constituted jury intimidation. The standard for reviewing such a request is abuse of discretion, and precedent indicates that refusal to allow readbacks does not equate to constitutional error unless prejudice is demonstrated. Since the jury was permitted several readbacks, there was no evidence of prejudice, leading to the conclusion that there was no abuse of discretion.
Turner challenges the trial court’s consciousness of guilt instruction (CALJIC No. 2.03), asserting it violated due process. In habeas corpus cases, a jury instruction warrants reversal only if it undermines the fairness of the trial. The instruction stated that a deliberately misleading statement made prior to the trial could suggest consciousness of guilt but was not sufficient to prove guilt on its own, leaving the assessment of its significance to the jury.
In California, an instruction regarding inconsistent statements is appropriate when a defendant’s pre-trial statements conflict. In this case, Turner provided differing accounts of how he obtained Hunt's ring during a burglary, thus supporting the instruction’s factual basis under California law. Turner’s claim that such an instruction violated his constitutional rights is addressed by referencing a precedent that allows consideration of inconsistent statements as indicative of consciousness of guilt, provided the instruction does not equate inconsistency with guilt itself. The court finds no constitutional error in CALJIC No. 2.03.
The district court's denial of Turner's petition regarding a Batson claim and a readback of testimony is vacated, and the case is remanded for an evidentiary hearing on these claims, while affirming the district court's decisions on other claims. Turner’s challenge is framed under the People v. Wheeler context, which addresses discriminatory peremptory challenges under the California Constitution; however, only federal claims are cognizable in federal habeas corpus. The court notes that in previous cases, the existence of a prima facie case was assumed when the trial court investigated the prosecutor's motives for juror exclusion. Unlike past cases where only a couple of jurors were excluded, in this instance, five African-Americans were excluded, warranting further scrutiny.
The court emphasizes that while trial courts typically receive deference regarding findings of purposeful discrimination in jury selection, this deference applies to assessments of the prosecutor's motivations, not to the trial court's conclusions without inquiries into those motivations. Additionally, to establish first-degree felony murder under California Penal Code Sec. 189, the prosecution must prove that the murder occurred during the commission of a robbery or burglary, and not merely as an incidental act.
