Appeal from the United States District Court for the Eastern District of California. D.C. No. CV-92-01185-LKK/G. Lawrence K. Karlton, Chief Judge, Presiding.
Before: Thomas Tang, Mary M. Schroeder and Stephen S. Trott, Circuit Judges. Opinion by Judge Schroeder; Dissent by Judge Trott.
SCHROEDER, Circuit Judge:
Robert Borg, warden of the Folsom State Prison, appeals the district court's judgment granting California state prisoner Steven Ray Lawson's 28 U.S.C. § 2254 habeas petition challenging his conviction for first degree murder. Borg argues the grant of habeas should be reversed because (1) the district court should not have held an evidentiary hearing on Lawson's juror misconduct claim; (2) any claim of juror bias has not been properly exhausted in the state courts; and (3) any juror misconduct resulted in harmless error. We hold the district court committed no error and affirm its judgment granting habeas relief on the ground that, during jury deliberations, one juror committed serious and prejudicial misconduct when he conveyed to other jurors information received out of court about the defendant's violent reputation.
On June 28, 1984, petitioner-appellee Steven Lawson and a friend, Mark Chandler, drove to the home of Marty Avila, who owed Chandler money. Lawson and Chandler brandished guns at Marty and his wife, Charlcia Avila, when they emerged from their home. In the course of the confrontation, Marty Avila shot Chandler. Lawson then shot and killed Marty Avila.
The jury found Lawson guilty of first degree murder and found "true" the special circumstance allegation that he had committed the murder while engaged in an attempted robbery. Cal. Penal Code §§ 187; 190.2(a)(17)(i).*fn1 The prosecutor had rested its theory of the case on the felony murder rule, arguing that Lawson shot the victim while attempting to rob him. The jury was properly instructed that in order to find the special circumstance that Lawson was attempting robbery, it had to find a specific intent to rob.
Lawson asserted a "claim of right" defense in order to negate any felonious intent to rob. He argued that he had a good faith but mistaken belief in his right to the property sought as payment for the debt to Chandler. The jury deliberated for five days. Two questions posed to the Judge during deliberations indicate the difficulty the jury had in deciding the special circumstance issue:
[(1)] Does the intent to collect a debt change to attempted robbery because of the use of firearms[?]
[(2)] How much force can be lawfully used to collect a debt before the actions constitute robbery or attempted robbery[?]
The trial court answered with supplemental instructions that directed the jury to consider the degree of force when it decided the special circumstance issue:
One may not lawfully use force or the threat of force to collect a debt. The degree of force used is one of the circumstances for your consideration in determining whether there existed an intent to collect a debt or to commit a robbery.
The jury returned a verdict of guilty on all counts: first degree murder with special circumstances, attempted robbery, and two counts of false imprisonment. After a separate penalty phase deliberation, the jury recommended life without parole. Several jurors submitted a note to the trial Judge requesting that the court consider the possibility of parole for Lawson, indicating that they did not agree with the penalty choices they felt constrained to make.
In July of 1986, Lawson moved for a new trial based on a claim of juror misconduct. He alleged that juror Scott had made statements during guilt phase deliberations regarding Lawson's reputation for violence. The motion was accompanied by several sworn declarations from jurors at Lawson's trial.*fn2 The state filed a brief in opposition to Lawson's misconduct claim, submitting supporting declarations from three other jurors, Bentley, Fitzpatrick and Gossett.
The trial court denied the new trial motion as well as the defense's request for an evidentiary hearing. In its written order rejecting Lawson's claim of juror misconduct, the trial court noted that "the inference raised by affidavits of Jurors Ross, Dahl, and Emery were [sic] refuted by affidavits of Bentley and Fitzpatrick."
The Third Appellate District of the California Court of Appeal rejected the misconduct claim and affirmed Lawson's convictions. The court did not reach Lawson's claim that the trial court erred in refusing to call an evidentiary hearing because that issue was pending before the California Supreme Court in People v. Hedgecock, later decided at 51 Cal. 3d 395, 795 P.2d 1260 (Cal. 1990). The Third District held, "assuming arguendo that juror Scott did commit misconduct, we are convinced that no prejudice to defendant resulted." Lawson's petition to the California Supreme Court was initially granted but ultimately dismissed, rendering his conviction final.
Following exhaustion of the misconduct claim in the California state courts, Lawson sought habeas in the district court. The magistrate Judge ordered an evidentiary hearing on the claim of juror misconduct. In its written Findings and Recommendations, the magistrate Judge found that extrajudicial information regarding Lawson's propensity for violence had been introduced by juror Scott during the guilt phase of jury deliberations. The magistrate Judge found that the testimony of the three jurors reporting Scott's improper statements was more credible than Scott's denials or the jury foreman's testimony that such statements had not been made. Although the magistrate Judge found that the extraneous information imparted by Scott's misconduct was "serious and decidedly improper," he concluded, after noting that the determination was "extremely close," that the misconduct "did not cause substantial and injurious effect on the outcome."
On review, the district court found the magistrate Judge's factual findings amply supported by the evidentiary record but the court rejected the finding of no prejudice. The district court accepted the following facts found by the magistrate Judge:
(1) that Scott denied knowing petitioner on voir dire; (2) did in fact know people who knew petitioner, including former co-workers, and worked in an environment where the case was frequently discussed; (3) conducted an out-of-court investigation into petitioner's reputation and propensity for violence during the course of the trial; (4) reported his findings to at least ...