filed: September 9, 1992; Amended September 21, 1993.
Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-90-00925-CRD. Carolyn R. Dimmick, District Judge, Presiding. Original Opinion Reported at:,.
Before: Alfred T. Goodwin, Jerome Farris and Ferdinand F. Fernandez, Circuit Judges. Opinion by Judge Goodwin; Dissent by Judge Fernandez.
Order AMENDING OPINION AND DISSENT
Patrick James Jeffries appeals the judgment which denied his petition for a writ of habeas corpus. He was convicted in the State of Washington and sentenced to death on two counts of aggravated first-degree murder. The district Judge carefully considered the 18 alleged constitutional violations asserted in the petition and explained, in detail, why none required federal intervention. Jeffries v. Blodgett, 771 F. Supp. 1520 (W.D. Wash. 1991). We agree with the district court's resolution of all of the issues except one - the issue of juror misconduct. We therefore vacate and remand.
While there was no eyewitness to the murders, the state produced evidence from which the jury could find that Jeffries killed Phillip Skiff by firing seven .22 calibre bullets into his body, and killed Inez Skiff by firing ten .22 calibre bullets into her body. He then buried his victims in shallow graves on their property, and told inquiring neighbors various false stories about their whereabouts. Either before or after the murders, Jeffries helped himself to the currency, gold, weapons and other personal property of the victims. He headed for Canada, leaving a trail of stolen property and witnesses who saw him selling or attempting to sell items stolen from the Skiffs. He was also seen flashing large quantities of Canadian money shortly after the Skiffs had been murdered. The late Mrs. Skiff had recently withdrawn $30,000 in Canadian currency from her bank in Canada. That money was never found or accounted for.
On November 5, 1983, the Clallam County Superior Court jury convicted Jeffries of two counts of aggravated murder. In a special verdict, the jury also found that two aggravating factors had been proven: (1) that the murders were committed to conceal the commission of a crime or to protect or conceal the identity of a person committing a crime, and (2) that the murders were committed as part of a common scheme or plan. Finding insufficient mitigating circumstances to warrant leniency, the jury sentenced Jeffries to death.
The Washington Supreme Court affirmed Jeffries' conviction and sentence on direct appeal. State v. Jeffries, 105 Wash. 2d 398, 717 P.2d 722 (Jeffries I), cert. denied, 479 U.S. 922, 93 L. Ed. 2d 301, 107 S. Ct. 328 (1986). Jeffries filed three personal restraint petitions in state court, all of which the Washington Supreme Court denied. In re Jeffries, 722 P.2d 99 (1986) (Jeffries II); In re Jeffries, 110 Wash. 2d 326, 752 P.2d 1338, cert. denied, 488 U.S. 948, 102 L. Ed. 2d 368, 109 S. Ct. 379 (1988) (Jeffries III); In re Jeffries, 114 Wash. 2d 485, 789 P.2d 731 (1990) (Jeffries IV).
Jeffries then filed this habeas corpus petition in federal district court. The district court denied Jeffries' petition. Jeffries now appeals that denial.
We review de novo the district court's denial of habeas relief. Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir. 1988). However, findings of fact by the state court are entitled to a presumption of correctness under 28 U.S.C. § 2254(d), Sumner v. Mata, 449 U.S. 539, 546-47, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1981); Hamilton v. Vasquez, 882 F.2d 1469, 1470-71 (9th Cir. 1989), and are reviewed for clear error. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).
In his habeas petition, Jeffries raises a number of constitutional issues covering every phase of his journey to this court. With regard to the district court, Jeffries argues that the court erred in failing to grant him an evidentiary hearing on newly discovered evidence and in refusing to allow him to present certain expert testimony. Concerning the Washington State Supreme Court, Jeffries argues that it was error for that court to make use of an improper report prepared by the trial Judge. Concerning his state trial, Jeffries raises a number of issues covering: (1) the form of indictment; (2) fair trial; (3) evidentiary decisions of the trial Judge; (4) aggravating circumstances; (5) mitigating circumstances; and (6) ineffective assistance of counsel.
Jeffries argues that the district court erred in refusing to hold an evidentiary hearing concerning "newly discovered" evidence. The evidence concerns testimony of a travel agent who worked in the same town in which the victims had lived. According to her proposed testimony, three sinister-looking people driving a car with California plates entered her travel agency on the day of the murders and asked for directions to Barr Road or to the Barr Road Extension. The victims had lived on Barr Road.
The district court initially granted Jeffries' motion to hold an evidentiary hearing concerning this evidence. However, due to illness, the travel agent did not attend the scheduled hearing. Instead, her deposition was taken and the district court considered the information it contained in denying Jeffries' motion for a new trial.
A federal evidentiary hearing is mandatory if (1) petitioner's allegations, if proven, would establish the right to relief, and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts. Van Pilon v. Reed, 799 F.2d 1332, 1338 (9th Cir. 1986). Jeffries can meet neither burden.
First, even if the travel agent's statement is true, Jeffries would not be entitled to relief. The mere existence of newly discovered evidence relevant to guilt is not grounds for federal habeas relief - more is needed. Townsend v. Sain, 372 U.S. 293, 317, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963); Gordon v. Duran, 895 F.2d 610, 614 (9th Cir. 1990). Jeffries must show that the newly discovered evidence would probably have resulted in his acquittal. Gordon, 895 F.2d at 614-15; Quigg v. Crist, 616 F.2d 1107, 1112 (9th Cir.), cert. denied, 449 U.S. 922, 66 L. Ed. 2d 150, 101 S. Ct. 323 (1980). Evidence which suggests only that some other individual might have committed the crime rather than showing that the defendant did not commit the crime is insufficient to meet the "probability of acquittal" standard. Quigg, 616 F.2d at 1112. Jeffries' proffered evidence shows only that other persons were in the vicinity of the scene of the crime, not that they had any connection with the crime.
Second, Jeffries has already received a full and fair hearing in state court concerning this evidence. See Jeffries IV, 789 P.2d at 737.
Before the district court, Jeffries attempted to call to the stand psychologists who were to testify that reasonable jurors would have interpreted the jury instructions and special verdict form in an unconstitutional manner. Jeffries argues that, in refusing to allow him to introduce such expert testimony, the court committed error. We find no error. See McDougall v. Dixon, 921 F.2d 518, 532-33 (4th Cir. 1990), cert. denied, 115 L. Ed. 2d 1009, 111 S. Ct. 2840 (1991).
Jeffries argues that his constitutional right to due process was violated because the state trial Judge prepared a trial report for use by the State Supreme Court in its proportionality review without giving Jeffries the opportunity to be heard. Jeffries' argument fails for two reasons.
First, the trial Judge twice asked trial counsel for Jeffries to contribute toward preparation of the report but counsel failed to do so.
Second, because the trial Judge report is used primarily for proportionality review, not for determining guilt or the sentence, and because Jeffries does not make a proportionality claim, he has suffered no prejudice by the use of the report. Even if the State Supreme Court uses this report to evaluate the evidence justifying the guilty verdict or to support the imposition of the death penalty, the entire trial record is available to fill in gaps that may exist in the report.
IV. Prosecution by Indictment
Jeffries argues that Washington's failure to prosecute this capital case by indictment violated his constitutional rights guaranteed by the Fifth, Eighth, and Fourteenth Amendments. Indictment by grand jury is not part of the due process guarantees of the Fourteenth Amendment that apply to state criminal defendants. Hurtado v. California, 110 U.S. 516, 28 L. Ed. 232, 4 S. Ct. 111 (1884), recently affirmed by Rose v. Mitchell, 443 U.S. 545, 557 n.7, 61 L. Ed. 2d 739, 99 S. Ct. 2993 (1979). This rule has been applied to Washington's state practice of prosecution by information. Gaines v. Washington, 277 U.S. 81, 72 L. Ed. 793, 48 S. Ct. 468 (1928). Accordingly, Jeffries' argument fails.
Jeffries argues that his right to a fair trial was violated due to: (1) prejudicial media publicity; (2) juror misconduct; and (3) prosecutorial misconduct.
Jeffries argues that he was denied a fair trial because the media publicity surrounding the trial prejudiced the jurors against him. He argues that the trial Judge erred in failing to change the venue of the case.
The murders in this case occurred in Clallam County, Washington, population 50,000 (36,250 of whom were eligible for juror duty; 16,400 households). The Port Angeles Daily News, a county newspaper with a circulation of about 13,000, provided primary coverage of the murders.
The murders were discovered on April 2, 1983. The Daily News ran nine stories on the murders between April 4 and April 19, as well as three more stories in the first two weeks of May. Both the Seattle Post-Intelligencer and the Seattle Times ran single articles regarding the murders shortly after their discovery. KOMO Television reported on the murder story for eight of the days between April 4 and 15. KING Television carried stories on April 4, 5, and 15.
The news coverage included: (1) details of Jeffries' Canadian criminal history; (2) the sheriff's statement that Jeffries was armed and dangerous and that the murders were premeditated; (3) details about the nature of the murders; (4) details of Jeffries' arrest; and (5) other details concerning the progress of the investigation.
Jury voir dire was conducted between October 3 and October 19.
On habeas review, this court must "make an independent review of the record to determine whether there was such a degree of prejudice against the petitioner that a fair trial was impossible." Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838, 83 L. Ed. 2d 77, 105 S. Ct. 137 (1984). This court must independently examine the news reports for volume, content, and timing to determine if they were prejudicial. Harris v. Pulley, 885 F.2d 1354, 1360 (9th Cir. 1988). Whether a jury was biased is a question of fact. The trial Judge's finding on this question is entitled to a presumption of correctness. Lincoln v. Sunn, 807 F.2d 805, 814-15 (9th Cir. 1987).
Defendants enjoy the right of due process to be tried by "a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 723, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961). If prejudicial pretrial publicity makes it impossible to seat an impartial jury, then the trial Judge must grant the defendant's motion for a change of venue. Harris, 885 F.2d at 1361. The prejudice requirement will be satisfied by a finding of: (1) presumed prejudice; or (2) actual prejudice.
"Prejudice is presumed when the record demonstrates that the community where the trial was held was saturated with prejudicial and inflammatory media publicity about the crime." Harris, 885 F.2d at 1361. Courts rarely find presumed prejudice because "saturation" defines conditions found only in extreme situations. Id.
We cannot presume prejudice in this case. We agree with the trial Judge and the district court that the nature of the news coverage was factual, and not inflammatory. Moreover, although there was a substantial amount of publicity, the bulk of it occurred six months before jury selection in the case.
Actual prejudice exists if the jurors demonstrated actual partiality or hostility that cannot be laid aside. Harris, 885 F.2d at 1363. "Jurors need not, however, be totally ignorant of the facts and issues involved." Murphy v. Florida, 421 U.S. 794, 800, 44 L. Ed. 2d 589, 95 S. Ct. 2031 (1975).
We find no actual prejudice in this case. First, it is immaterial that almost all of the jurors had heard or read about the case prior to trial. All of these jurors swore under oath that they could impartially Judge Jeffries' guilt or innocence.
Moreover, of the 180 venire members, at most 14 were excused, either for cause or peremptorily, because of potential prejudice. Excusing 14 out of 180 venire members for prejudice does not indicate actual prejudice of jurors. See Murphy, 421 U.S. at 803 (no prejudice found where 20 out of 78 venire members excused due to partiality). Jeffries points to no aspect of the five volume voir dire transcript in arguing that actual prejudice existed.
Jeffries argues that he was denied a fair trial because one of the jurors in the case informed the other jurors that Jeffries was a convicted armed robber. The trial Judge had excluded evidence of Jeffries' prior convictions during the guilt and penalty phases of the trial.
Two years after Jeffries was sentenced, two jurors filed affidavits concerning juror conduct during the trial. In his affidavit, juror Thomas Tyszko stated that, during the guilt phase, juror Erin Thomas announced to the jury that "Jeffries is a convicted armed robber . . . oh we're not supposed to know that are we?" Tyszko stated that he had ignored the comment.
In her affidavit, juror Kathleen Sims claimed that, during the penalty phase, Thomas told the jury that Jeffries "had a record." Sims stated that someone, perhaps herself, responded that Jeffries' criminal record was irrelevant.
Thomas denied making the statements or even that he had heard Jeffries had a record. Eight of the twelve jurors swore that they did not hear anyone refer to Jeffries' criminal record or make such statements themselves.
In assessing whether the alleged juror misconduct deprived Jeffries of a fair trial, the district court properly invoked the five-part test set out in Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986). In Bayramoglu, we held that the following factors are relevant in determining whether the alleged introduction of extrinsic evidence constitutes reversible error:
(1) whether the extrinsic 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 jury discussed and considered it; (4) whether the material was introduced before a verdict was reached, and if so, at what point in the deliberations it was introduced; and (5) any other matters which may bear on the issue of ...