11th Circuit (Successive Federal Habeas Petition) - Attorney's Working File - Issues - Jury (Redacted)

    MNS Closkey V. Kemp - Tssves - Juvey Alfidauts 

  

    

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TO: Jack 

FROM: Kaoru YY 

DATE: May 21, 1987 

RE: McCleskey's Giglio claim--admissibility of jury affidavits 

This is a rough summary of my research so far. As you can see, 
I have not found any cases directly relevanti:to the Giglio situation. 

However, we should try to analogize from the existing body of law, 

which creates certain exceptions to the general rule excluding 
jury affidavits. 

1. The 11th Circuit en banc decision finds that the "promise 
involved in this case falls short of the kind of formal agreements 
contemplated in Giglio/Napue, etc. In your cert. application, 

you have argued that Bagley and other cases suggests otherwise. 
Alternatively, ‘the €ircult court finds that any Giglio violation 

in this case would be harmless error. 

  

2. Furthermore, under Bagley, the jury affidavits seem to dispose Uadarbyig 
of the materiality question contrary to the 11th Circuit determination. owleridly 

That the Two jurors would have decided the case differently had 
they known of the special incentive of the key witness to lie 
indicates that there exists a "reasonable probability that, had the 
evidence been disclosed to the defense, the result of the 

proceeding would have been different." Bagley. 

  

3. The crucial question of admissibility of the jury affidavits 

can be approached in the following way: 

a. There exists the general rule that a juror may not impeach 
his or her own verdict. The same rule applies to judges, 
although it seems that the rule is stricter for judges than 
for jurors, particularly because the recollection of only 

"one mind" is involved in the former case. Washington v. 
Strickland (5th Cir. 1982). 

  

  

b. There is an exception to this general rule. This exception 
seeks to "(redress) the injury of the private litigant" 
where a verdict was reached by a jury not impartial. 

McDonald v. Pless (US 1915). 
  

c. This exception does not apply to jury testimony on 

issues which "inhere in the verdict." Mattox v. U.S. 
(US 1892). 

  

-—i.e. one cannot disclose the mental proccesses of 

any jurar or of the jury in arriving at a verdict 
and the method by which the verdict was reached 

-—-Some courts have allowed jurors to testify regarding 
overt acts, which can be corroborated by other jurors, 

e.2+ U.S. v. Pimentel (9th Cir. 1981). 
  

 



  

i 

The most commonly-cited definition of the exception is: 
"{a) juryman may testify to any facts bearing upon the 

question of the existence of any extraneous influence, 

although not as to how far that influence operated 
upon his mind." Martox. 

There are several examples of what constitutes an "extraneous 
influence." They include: 
--publicity received and discussed in the jury room 
--consideration by the jury of evidence not admitted in court 

~-communications/contacts between jurors and 3rd persons 
outside the presence of the defendant and the defense 

counsel 

(but N.B. intra-jury influences doe not constitute 

extraneous influences, Davis v. U.8. (5th Cir. 1931)) 
  

An interesting example in which the extraneous influence 
exception was applied to admit jury affidavits is the 

case of Stimack v. Texas (5th Cir. 1977). In this case, 
several jurors were threatened by telephone from a male 

who identified himself as counsel for the defense. At 

the evidentiary hearing, two jurors were permitted to 

testify that these telephone calls caused them to view 
the defense more severely than they would otherwise. 
In ruling that the testimony of the jurors about facts 
showing the "extraneous influence" of the caller was 
properly admitted and considered by the district court, 
the 5th Circuit noted that, while the evidence against 
the defendants was strong, they were nevertheless entitled 
to have it considered by a jury free of extraneous influences. 

  

Jury testimony was also deemed admissible and relevant 
in a Supreme Court decision in Parker v. Gladden (US 1966). MN ¥ 

  

In this case, the Court found impermissible the influence 
of the bailiff on the jury, when the bailiff had stated 
to some of the jurors that the defendant was guilty. In lua 

finding that the defense was prejudiced, the Court took 2 
into account the testimony of one of the jurors who testified 
that "all in all it must have influence me. I didn't realize 

it at the time." 

An interesting parallel.to Parker is Turmer v. Louisiana 
(US 1965), in which the defense challenged the verdict 
of the jury which was in continuous association with two 

deputy sheriffs (who were the two principal prosecution 

witnesses) during trial. The Supreme Court found that 
this situation violated due process, since the credibility 
which the jury attached to the deputies' testimony 
must inevitably have determined whether the accused would 
be convicted. Weinstein, in his Evidence treatise, suggested 
that, at least the federal rule (606(b)) barring jury 
testimony, would not preclude admisstion of evidence 
suggesting the existence of prejudice in a case like this. 

  

Thus, there seems to be a strong federal constitutional 

 



~3= 

  

concern behind the extraneous influence exception. Instances 

of extraneous influence "render a criminal verdict vulnerable 
because they are prima facie incompatible with the Sixth   

  

Amendment." Government of Virgin Islands v. Gereau (3rd Cir. 
19725). 

j. The Sixth Amendment guarantees an impartial jury and the 
right to confront witnesses. Impartiality is compromised 
when the jury communicates with a 3rd party (cf Parker); 

when the jury considers evidence which has not been 

properly introduced in court, the confrontation clause is 

violated. 

--federal courts will disregard state evidentiary rules 
agai chment of their own verdict, 

if that rule prevents what is the only method of proving 

that the defendant had been denied due process by jury 

consideration of prejudicial extrarecord facts. 
U.S. ex. rel: Owen v. McMann (2nd Cir. 31970). 
  

4. There is clearly a "fair trial" concern underlying the 
exception to the general rule barring jury testimony. As the 

5th Circuit stated, . this "danger to fair trials is most acute when 
facts which have not been tested by the trial process have been 
intentionally communicated directly to the jurors." U.S. v. 

Howard (5th Cir. 1975) (emphasis added). 

    

5. Our Giglio situation may £it into this scheme indirectly. 
The misconduct of the prosecution was egregious; indeed, the 
ommitted information re: witness was clearly "material, as the 
jury affidavits indicate. The deception of the jury goes 
against "fair trial” concerns. 
-~-the defense did not have the opportunity to adequately cross- 

examine the witness due to lack of information and the failure 
of the prosecution to correct the misleading impression given 

by its witness; 

-~-thus, evidence which was inadequately tested by the trial 

process (i.e. cross-examination) was considered by the jury 
in this case. 

This is not a case alleging jury misconduct. We are not 
challenging the process by which the jury reached its verdict 
(i.e. the mental processes of the jury). Thus, this case ohwene 

should be distinguished from situations in which the jury Lu , 
considered evidence they werenot supposed to consider. This is fo SY 4 
a case in which the jury could not consider a highly: relevant cases — 
fact about the key witness, despite the fact that they were : 

entitled to consider it and the defense was entitled to call Jus conde 

that jury's attention ro it. endure 0 14 

nd bo 
6. There are, of course, problems with the above argument. — 
The first significant issue is procedural default. The affidavits 

  

may have been admissible for the purpose of determining the 

materiality question, i.e. they may have been one factor for 

the courts in deciding whether a Giglio violation existed. k : 

Here, however, we are challenging a materiality determination 
which the courts have already made, and that may be problematic. Cg > 

law 

 



  

b= 

Also, it is not clear if the affidavits describe the jury's 

"mental processes" which do net fall within the exception. 
This is a tricky problem because we are talking about the 
prejudicial effect of an uncorrected testimony. We cannot 
point to a specific overt act, e.g. association with the bailiff, 

from which the prejudicial effect can be inferred. This 
case involves the absence of a relevant fact, and it is that 

absence which rendered the proceeding prejudicial. Incomplete 

or uncorrected erroneous testimony should be as bad as an 
extraneous influence for due process purposes. To make this 
analogy, however, the conduct of the prosecution must have been 

pretty egregious and the fact that the "promise" was made 
should be compelling. 

7. I called David Kendall, as you had suggested. He will 
be sending us the memorandum he used for the developer/jury 
tampering case. (I suppose it would be far-fetched to argue 

that this case involves jury tampering--can we say that there 
was a deliberate intent to deceive? NC!) 

 



  

TO: Jack 

FROM: Kaoru 

DATE: June 1, 1987 

RE: Cases that oppose use of jury affidavits 

The following are some of the cases that seem to suggest that the 

Jury affidavits which you plan to. present in McCleskey should not 

be admissible because they reflect the mental. prosefaas, of the ( 
  

jury, as opposed to a "historic, objective fact." Ishacs v. Kemp, 
778 F.24 1482 (11th Cir. 1985), : 

  

In Mattox v. United States, the Supreme Court. ruled that a "juryman 
may testify to any facts bearing upon the question of existence of 
any_e i uence, although fot) as to how far that influence 
operated upon his mind. The question "1s whether testimony such 

as the one involved in your case constitutes "mental processes" 
of the jury. 

  

  

  

The following (mostly)Fifth Circuit cases seem to suggest that 

the jurors in MeClostey can testify as to the fact that they had 

considered Evan's testimony to be reliable, but -not as to the effect 
that that testimony had had on them (i.e. that the testimony was 

determinative of the outcome and that the verdict would have been 

different had they known of the promise with the detective). 

  

  

  

The case-that has been cited often i; Llewellyn v, stynchcombe, Y% Chace 

609 F.2d 194 (5th Cir. 1980). In this case, the court refused 
to order an evidentiary hearing on jury prejudice, despite the 

existence of two juror affidavits that the jury had been prejudiced 

by extraneous material during deliberation. In so doing, the court 

stated that "[ilnquiries that seek to probe the mental processes of 
jurors «. . . are impermissible: . . The existing affidavits amply 

demonstrate the presence and nature of extrinsic materials, 

KTthough an evidentiary hearing would have been permissible to 

investigate further the existence of extrinsic materials, it was not 

necessary. We have-already concluded: that. such: material. could 
not have influenced the jury's verdict." Thus, this case seems 
to suggest that the determination of prejudice to the jury is 

a matter for the court to decide, and Jury statement as to the 

prejudicial effect of a particular piece of evidence at trial 

will not be considered in that determination. 

  

  

  
  

  

Other cases that support this interpretation of the Mattox 

distinction are : 
-~Ysaacs v. Kemp, 778 F.2d 1482 (11th Cir. 19853)(testimony of jurpr 

which went to establish the historic, objective fact that she attended 
a substantial portion of t al of other persons involved in the 

case was admissible because it did not address matter/statement 

occurring in course of jury deliberation or effect of having 

attended thot trial); | 
~~Inited States v, Cipson, 553 FV, 2d 453, 457, nN. 6 (5th Cir. 1977) 

(juror testimony relating tc mental process by which he reached 

  

  

his verdict is not competent evidence for purposes of impeaching 

 



  

a jury verdict): 
--United States v. Howard, 506 F.2d 865 (5th Cir. 1975)(jurpr:testimony 

on the jury's mental processes or the influence that any particular 

evidence had upon jury's conclusion may not be elicited for the dudC 

purpose of impeaching jury's guilty verdict); 

~-Davig V, United States, 47 F.2d 1071 (5ih Cir. 1931)(conviction 

upheld despite post-trial testimony of two jurors that jury had thks ¢ 
considered defendant's failure to take the witness stand in his own 

defense as evidence of guilt); 
~~Pyroffitt v. Wailnwitehet, 685 7,24 1227 (11th Cir. 1982) (judge's 

  

  

  

testimony on influence which various facts had on his épinion 

may not be used as evidence in subsequent challenge to decision 

because it is noi limited to basic historic fact, but directly 
addresses the effect of psychiatric evidence on his sentencing 

decision). 
——— 

  |  — 

 



  

McCleskey DRAFT: admissibility of jury affidavits 
  

WHERE THE PROSECUTION FAILED TO CORRECT KEY WITNESS' MISLEADING 
TESTIMONY AND TO DISCLOSE SIGNIFICANT IMPEACHMENT EVIDENCE TO 
THE DEFENSE, THE RESULTING VIOLATION OF PETITIONER'S DUE PROCESS 
RIGHTS REQUIRES THAT THIS COURT CONSIDER JURY TESTIMONY AND TO 
GRANT PETITIONER A NEW TRIAL UNDER THE NEW MATERIALITY STANDARD 
OF UNITED STATES v. BAGLEY. 
  

In Giglio v. United States, 405 U.S. 150 (1975), the 
  

United States Supreme Court held that the prosecution's failure 

to disclose a promise of leniency made to a key prosecution witness 

who had testified that no promise had been made to him constituted 

a denial of fundamental fairness required by the Due Process Clause 

of the fifth amendment, when the reliability of that witness was a Sl, 1, 

sles h (4 

determinative of guilt or innocence of the defendant. In light of muuc fl. 

NVlon— 
the change in the standard for determining whether excluded evidence ,,, 44, 

NE Jiun 

was materiall in a particular case, petitioner seeks to present 2) 

z 24 / (2 

newly-obtained testimony of two jurors who participated in the State,  ~ 
I Crdprpe 

trial deliberations. These affidavits, which clearly state that ny) 

the result of petitioner's trial would have been different had 

  

1 

When petitioner first presented his Qigllo claim in his state 
and federal habeas corpus proceedings, the controlling standard 
for a finding of materiality of excluded evidence, see Brady v. 

Maryland, 373 U.S. 83, 87 (31¢<63), was the requirement that 
"the false testimony could . . . in any reasonable likelihood have 
affected the Judgment of the jury." Napue v. Illinois, 360 U.S. 
264, 271 (1959); Qiglio, 405 U.S. at T54. The evidence RE gh 

  

  

  

petitioner presented in his first proceedings were sufficient fhe Caicy tect 
to meet this "any reasonable likelihood" test. 

In 1085, United States v, Bagley, 105 S. Ct. 3375, 3384 (1935), 
changed the materiality standard: evidence is "material" only 
if "there is a reasonable probability that, had the evidence been 
disclosed to The defense, the result of the proceeding would have 
been different." (emphasis added) Petitioner now seeks to introduce 

  

  
  

  

the jury affidavits because, under the new standard, they are 
essential in determining that the "result of the proceeding would 
have been different" had the prosecution made available to the 
defense the impeachment evidence on its key witness. Thus, the 

argument that petitioner should have presented these affidavits 
in his first habeas proceedings is inapplicable because the jury 

 



-2- 

  

the jury known of the promise made by the police detective to 

the key witness, are admissible as an exception to the general rule 

  

prohibiting a Juror from impeaching his or her verdict. See McDonald 

V. Plezs, 2383 U.8, 264, 267 (1915). See 8lg0c United States ex, rel, 
    

not Vis Bana ' Z 

Owen v. McMann, 435 F.2d 813, 819-20 (1975) (federal courts will Carint 
  

disregard state evidentiary rules against jurors' impeachment J] Qs! 

of their own verdicts, if that rule prevents what is the only method 

of proving that the defendant had been denied due process by jury 

consideration of prejudicial extrarecord facts). Thus, where 

petitioner's constitutional rights were endangered by the improper 

conduct of the prosecution, and where his trial verdict was the 

product of jury deliberations which was based on the deceptive 

reliability of the key witness! testimony against petitioner, this 

court must consider the jury testimony in order to "'[redress] 

the injury of the private litigant' where a verdict was reached 

by a jury not impartial.! Government of the Vircin Islands v. 
  

Gereau, 523 P.24 140, 148 (3rd Cir. 1975), quoting McDonald v. 
  

Pless, 233 U.S. at 267. 

A Juror is permitted to testify to "any facts bearing upon 

the question of the existence of any extraneous influence." 

Mattox v. United States, 146 U.8, 140, 149 (1892), quoting Woodward     

v. Leavitt, 107 Mass. 453. Accordingly, federal courts have permitted 
  

  

cont./ 
testimony became essential only under the new standard. Given 
the general policy barring use of jury testimony, petitioner seeks 
to introduce them now as an exception to that rule only because 

thelr necessity has been sighificantly heightened by the Bagley 
decision. 

 



i 

  

Jury testimony on jury exposure to news items "about the matter 

pending before the jury," Remmer v. United States, 347 U.S. 227, 
  

229 (1954); consideration by the jury of evidence not admitted 

in court, Forese vy, United Stateg, 428 7.24 178 (5th Cir. 1970); 
  

and communications and contacts between jurors and third persons 

outside the presence of the defendant and the defense counsel, 

Rienardson v. United Stzzes, 360 7.24 366 (5th Cir. 1966), 
  

See also Parker v. Gladden, 385 U.S. 363 (1966) (Court considered 
  

testimony of one juror who admitted that jury was influenced by 

opinion expressed by bailiff); Turner v. Louisiana, 379 U,S. 
  

466 (1965); 3 J. Weinstein & M. Berger, Weinstein's Evidence 
  

606-31 n.36 (1985). These cases support the strong federal 

constitutional concern that instances of extraneous influence 

"render a criminal verdict vulnerable because they are prima 

facie incompatible with the Sixth Amendment." Gereau, 523 F.2d 

at 150. 

The sixth amendment guarantees, interalia, an impartial jury, 

the right to confront witnesses, and the assistance of counsel 

in criminal cases. Coleman v. Alabama, 399 U.S. 1 (1970). 
  

Jury impartiality is compromised whenthe jury communicates with 

a third party unless the communication is tempered by "known rules 

of the court and the instructions and directions of the court made 

during the trisl . . . ." Bewmmer, 3470.3, at 229, Similarly, the 

confrontation and counsel rights of an accused are violated when 

the jury considers evidence which has not been properly introduced 

in court. Gereszu, 523 F.2d. at 151. Thus, there is clearly a 

"fair trial" concern underlying the exception to the general rule 

 



oll 

  

barring jury testimony. As the Fifth Circuit Court of Appeals stated, 

this "danger to fiar trials is most acute when facts which have not 
  

been tested by the trial process have been intentionally communicated 
    

directly to the jurors." United States v. Howard, 506 F.2d 865, 
  

866 (5th Cir. 1975) (emphasis added). 

This due process concern is directly applicable to petitioner's 

case. The prosecution's failure to correct the misleading testimony 

of its key witnee, see United States v. Anderson, 574 F.2d 1347, 
  

1355 (5th Cir. 1978)(rule that prosecution's knowing use of false 

evidence violates due process "applied if the prosecution, although 

not actively soliciting false evidence, passively but knowingly 

allows 1t to go uncorrected or allows the jury to be presented 

with a materially false impression"), and the importance of that 

witness to the jury verdict against petitioner, see United States 
  

v. Sutton, 542 P.24 1239 (4th Cir. 1976)(where jury was incorrectly   

assured that no threats had been made to witness who testified 

against defendant, and threats made by FBI agent might reasonably 

be viewed as impugning the witness' veracity and the case was otherwise 

wholly circumstantial, the prosecution's failure to disclose the 

agent's conduct violated due process), frustrated the Constitution's 

intolerance of the "corruption of the truth-seeking function of 

the trial process." United States v, Azurs, 427 U.S. 97, 104 (1078). 
  

As the jury affidavits indicate, the jury verdict would have 

been different had the defense had the opportunity to properly 

impeach the key witness against peitioner and to convey to the jury 

the witness! special incentive to lie for the prosecution. Instead, 

testimony which was inadequately tested by the trial process was 

considered by the jury in finding petitioner guilty of malice murder. 

 



5 

  

In light of the fact that no other witness had credibly testified 

against petitioner and the weakness of the prosecution's circumstantial 

evidence, petitioner's conviction fails to meet! the "greater degree 

of reliability" requirement for capital cases. Lockett v, Ohio, 
  

438. U.S, 584, 604 (1973). 

Petitioner does not allege that the jury acted improperly 

nor does he challenged the process by which the Jury reached its 

verdict against him. Gereau, 523 F.2d at 149. Petitioner merely 

asserts that the jury could not consider a highly relevant fact 

about the key witness, despite the fact that they should have been 

able to consider it and petitioner should have been able to call 

the jury's attention to it. Petitioner was entitled to be tried 

by a jury free of deception which he could not challenge. See 

Stimaek v. Texas, 548 F.2d 538 (5th Cir, 1977). Whether the   “N
g 

prosecution's failure to disclose impeachment evidence to petitioner 

was harmless beyond a reasonable doubt, Bagley, 105 S.Ct. at 3382, 

depends on whether that evidence was material to petitioner's 

case. The Jury affidavitsindicate that the excluded evidence was 

clearly material... In light of the underlying constitutional concern 

for a fair tiral in capital and other criminal cases, this court 

must consider the jury testimony as evidence of the prejudice 

which petitioner suffered as a result of the prosecution's failure 

to disclose significant impeachment evidence on 1lts key witness. 

  

2 
The materiality of the excluded evidence is a separate question 

from the issue of admissibility of jury testimony, This court 
must consider the jury testimony because the prosecution's conduct 
jéopardized petitonér's due process rights, Whether that violation 
warrants a reversal of the jury verdict depends on the materiality 
of the excluded evidence. This latter issue can be answered only 

when this court considers the jury testimony. 

 



     



  

U. S. SUPREME COURT REPORTS 17 L ed 24 

fied? 
UU z *[385 US 363] 

*LEE E. A. PARKER, Petitioner, 

Vv 

CLARENCE T._.GLADDEN, Warden of the Oregon 
- State Penitentiary - 

335 US 363, 17 1. ed 24 420, 837 S Ct 468 

[No. 81] 

Argued November 9, 1966. Decided December 12, 1966. 

SUMMARY 

The defendant, after conviction for second degree murder upon trial in 
an Oregon court, filed a petition for postconviction relief, and the trial court 

found that the defendant’s rights had been materially affected by the 
conduct ‘of the bailiff, assigned to shepherd the sequestered jury, in stating 

to some of the jurors that the defendant was guilty and that if there 
was anything wrong in finding the defendant guilty the Supreme Court 
would correct it. The Supreme Court of Oregon reversed, finding that the 

bailiff’s misconduct had not deprived the defendant of a constitutionally 

fair trial. (407 P2d 246.) 

On certiorari, the Supreme Court of the United States reversed. In a 

per curiam opinion, expressing the views of eight members of the court, 
it was held that (1) the bailiff’s conduct violated the defendant's right 

to a trial by an impartial jury and to be confronted with the witnesses 
against him under the Sixth Amendment as made applicable to the states 

through the due process clause of the Fourteenth Amendment, (2) _preju- 

J dice was shown by the bailiff’s official status, which carried great weight 

with the jury, by the jurors” deliberation for 26 hours, which indicated a 

difference among them as to the defendant's guilt, and by evidence that 

Lone of the jurors was prejudiced by the statements, and (3) in any event, 

the bailiff’s conduct involved such a probability that prejudice would 

result that it was deemed lacking in due process. 

HARLAN, J., dissented, expressing the view that the Sixth Amendment 

was not directly applicable to the states through the Fourteenth Amend- 

ment, that the case should be considered under the doctrine of fundamental 

fairness implicit in the due process clause of the Fourteenth Amendment, 

and that there was no substantial showing of prejudice in fact, necessary 

to establish a due process violation. 

  

  
  

Consti 

Jt 

 



17 L ed 2d 

n trial in 
rial court 

d by the 
in stating 

= if there 
me Court 

that the 

utionally 

ed. Ina 

he court, 

t's right 

vitnesses 

he states 

2) preju- 
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dicated a 

ence that 

ny event, 

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endment 

Amend- 

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a 
a
 

PARKER v GLADDEN 
385 US 863, 17 L ed 2d 420, 87 S Ct 468 

HEADNOTES 

Classified to U. S. Supreme Court Digest, Annotated 

Constitutional Law § 842; Criminal 
Law §50; Jury § 33 — right to 

jury trial and confrontation of 

witnesses — due process — 
bailiff’'s remarks to jurors 

1. The conduct of a bailiff, assigned 
to shepherd a sequestered jury in a 

state murder prosecution, in stating 

to members of the jury that the de- 

fendant was guilty and that if there 
was anything wrong in finding the de- 
fendant guilty the Supreme Court 

would correct it, violates the defend- 

ant’s right to a trial by an impartial 

jury and to be confronted with the 

witnesses against him under the Sixth 

Amendment as made applicable to the 

states through the due process clause 

of the Fourteenth Amendment; preju- 
dice is shown by the bailiff’s official 

character as an officer of the court 

and state, which carried great weight 

with the jury that he shepherded for 8 

days and nights, by the jurors’ delib- 

eration for 26 hours, which indicated 

a difference among them as to the de- 

fendant’s guilt, and by evidence that 

one of the jurors was prejudiced by 

the bailiff’s statements, which reached 

at least three jurors and one alternate 

juror, and in any event, the bailiff’s 

unauthorized conduct involves such a 

probability that prejudice will result 

that it is deemed lacking in due proc- 
ess. 

Constitutional Law §§ 37, 38; Crimi- 

nal Law § 50 — trial by jury — 

confrontation of witnesses — ap- 

plicability of Sixth Amendment 

to states 

2. The command of the Sixth 

Amendment that an accused shall en- 

joy the right to a trial by an impartial 

jury and be confronted with the wit- 

nesses against him is made applicable 

to the states through the due process 

clause of the Fourteenth Amendment. 

Criminal Law § 50; Jury § 33 — con- 

frontation of witnesses — pres- 
entation of evidence 

3. Under an accused’s constitutional 

right to a trial by an impartial jury 

and to be confronted with the witnesses 

against him, the evidence developed 

against a defendant shall come from 

the witness stand in a public court- 

room where there is full judicial pro- 

tection of the defendant’s right of 

confrontation, of cross-examination, 

and of counsel. 

Criminal Law §50 — fair trial — 
right of confrontation and cross- 
examination 

4. The right of confrontation and 

  

(1st ed §§ 860, 905) 

Prejudicial effect, in criminal case, 

of communication between court offi- 

cials or attendants and jurors. 41 ALR 
24 227.   

TOTAL CLIENT SERVICE LIBRARY REFERENCES 

21 AM JUR 24, Criminal Law 88 333-337; Am Jur, Trial 

US DIGEST ANNO, Criminal Law § 50; Jury § 33 

ALR DIGESTS, Criminal Law § 120; Jury § 55; Trial §§ 44, 46 

L ED INDEX TO ANNO, Criminal Law; Jury 

ALR Quick INDEX, Communications; Jury 

ANNOTATION REFERENCES 

versal in criminal case. 22 ALR 254, 

Communications between jurors and 
others as ground for new trial or re- 

34 ALR 103, 62 ALR 1466.   
   



    
422 : U. S. SUPREME COURT REPORTS 

cross-examination is among the fun- 

damental requirements of a constitu- 

tionally fair trial. 

Jury § 34 — state criminal prosecution 
— number of jurors 

5. Notwithstanding an Oregon law 

17 L ed 2d 

permitting a guilty verdict by 10 af- 

firmative votes, the defendant in a 

state criminal prosecution is entitled 

to be tried by 12 impartial and un- 
prejudiced jurors. 

APPEARANCES OF COUNSEL 

John H. Schafer argued the cause for petitioner. 

David H. Blunt argued the cause for respondent. 

Briefs of Counsel, p 1059, infra. 

OPINION OF THE COURT 

Per Curiam. 

Petitioner, after his conviction for 
second degree murder, 235 Ore 366, 

384 P2d 986, filed a petition for post- 
conviction relief, Ore Rev Stat 
§ 138.550. At a hearing on the peti- 

tion the trial court found that a 
court bailiff assigned to shepherd 

tN SeqUEStered Jury, which sat for 
ight days, stated to one of the 

jurors in the presence Ol OLLETS 
while the jury was out walking on 

a public sidewalk: “Oh that wicked 
fellow [petitioner], he is guilty” ;? 

and on another occasion said to an- 
*[385 US 364] 

other *juror under similar circum- 
stances, “If there is anything wrong 

[in findifig petitioner guilty] the 
Supreme. Court will correct it. "2 
Both statements were overheard by 
at least one regular juror or an al- 

ternate. The trial court found “that 
the unauthorized communication was 

prejudicial and that such conduct 
materially affected the rights of the 
[petitioner].” The Supreme Court 

of Oregon reversed, finding that “the 
bailiff’s misconduct did not deprive 
[petitioner] of a constitutionally 

correct trial.” 407 P2d 246. We 
granted certiorari, 384 US 904, 16 
1. ed 24 357, 86 S Ct 1345. The 
federal question decided by Oregon’s 

highest court is, of course, subject 
to final determination in this Court 

and we have concluded that the 
judgment must be reversed. 

[1-4] We believe that the state- 

ments of the bailiff to the jurors are 
controlled by the command of the 

Sixth Amendment, made applicable 
to the States through the Due Proc- 

ess Clause of the Fourteenth Amend- 
ment. It guarantees that “the ac- 

cused shall enjoy the right to a 
trial, by an impartial jury 
[and] be confronted with 

the witnesses against him. 5 
As we said in Turner v Louisiana, 

379 US 466, 472-473, 13 1. ed 24 

424, 428, 429, 85 S Ct 546 (1965), 

“the ‘evidence developed’ against a 

defendant shall come from the wit- 

ness stand in a public courtroom 

where there is full judicial protec- 

tion of the defendant’s right of con- 

frontation, of cross-examination, and 

of counsel.” Here there is dispute 

neither as to What the bailiff, an 
dfiicer of the State, said hor that 
when he said it he was not subjected 

tg_controntation, cross-examination 
or other safeguards guaranteed to 
the petitioner. Rather, his expres- 

sions were “private talk,” tending to 

reach the jury by “outside influ- 

ence.” Patterson v Colorado, 205 

US 454, 462, 51 L ed 879, 881, 27 S 

Ct 556 (1907). We have followed 

the “undeviating rule,” Sheppard v 
  

1. The statement was made to alternate 
juror Mrs. Gattman and was overheard by 
juror Mrs. Inwards. 

2. The statement was made to an un- 

identified juror and overheard by juror 
Mrs. Drake. 

* 

  

  

Maxwel 
2d 600, 

*that th 
Cross-es 

fundam 

stitutio 

United 
L ed ¢ 
(1899) 

92 L ed 
Pointe: 

ed 24 ¢ 
sy.’ 

prejud 
harm 
10 me 

that t} 
staten 

mits a 
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that 
bailiff. 

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PARKER v GLADDEN 423 
385 US 363, 17 L ed 2d 420, 87 S Ct 468 

Maxwell, 384 US 333, 351, 16 L ed- nication was prejudicial and that 
2d 600, 613, 86 S Ct 1507 (1966), 

*[385 US 365] 

*that the rights of confrontation and 
cross-examination are among the 
fundamental requirements of a con- 
stitutionally fair trial. Kirby v 
United States, 174 US 47, 55, 56, 44 

1. ed 390, 893 894, 19 S Ct 574 
(1899) ; Re Oliver, 333 US 257, 273, 
92 L ed 682, 694, 68 S Ct 499 (1948) ; 
Pointer v Texas, 380 US 400, 13 L 

ed 2d 923, 85 S Ct 1065 (1965). 
[5]. The State suggests that no 

prejudice was shown and thar no. 
lar could nave resulted because 
10 members of the jury testified 

that they had not heard the bailiff’s 
statements and that Oregon law per- 

mits a verdict of guilty by 10 affirm- 
ative votes. This overlooks the fact 

that the official character of the 
bailiff—as an officer of the court as 

well as the State—beyond question 

carries great weight with a jury 
which he had been shepherding for 

eight days and nights. Moreover, 

the jurors deliberated for 26 hours, 
indicating a difference among them 

as to the guilt of petitioner. Finally, 
one? of the jurors testified That she 
  

_was prejudiced by the statements, 

which supports the trial court’s find- 
“Ing “that the unauthorized commu- 

  

such conduct materially affected the 
rights of the defendant.” This find- 
ing was not upset by Oregon’s high- 

est court. Agide from this, we 
believe that the unauthorized con- 
duct of the bailiff “involves such a 
probability that prejudice will result 
that it is deemed inherently lacking 
in"due process, Estes v Texas, 381 
US™53Z, 542-543, 14 L ed 2d 543, 549, 
550, 85 S Ct 1628 (1965). As we said 
in Turner v Louisiana, supra, “it 
would be blinking reality not to 

recognize the extreme prejudice in- 

herent” in such statements that 
reached at least three members of 

the jury and one alternate member. 

Id., at 473. The State says that 10 

of the jurors testified that they had 

not heard the statements of the bail- 

iff. This, however, ignores the testi- 

mony that one of the statements was 

made to an unidentified juror, which, 
*[385 US 366] 

including *Mrs. Inwards and Mrs. 

Drake, makes three. In any event, 

petitioner was entitled to be tried by 

12, not 9 or even 10, impartial and 

unprejudiced jurors. See State v 

Murray, 164 La 883, 888, 114 So 721, 
723. 

Reversed. 

SEPARATE OPINION 

Mr. Justice Harlan, dissenting. 

By not setting forth the back- 
ground of this proceeding the Court 
has put seriously out of focus the 

constitutional issue involved in this 
case. 

Parker was convicted of second 

degree murder on May 19, 1961, and 
sentenced to life imprisonment. On 
September 7, 1961, he addressed a 

letter to several jurors protesting 

his innocence, condemning his at- 

torneys for incompetence, intimating 
that witnesses were coerced into 
lying, and chiding the jurors for 

being duped into finding his guilty. 
After affirmance of his conviction 
by the Supreme Court of Oregon on 
September 15, 1963—some two years 
after the jury verdict—Parker 

again set out to take his case to the 
jury. He furnished his wife with 

a tape recording in which he pro- 

pounded a series of questions de- 

signed to uncover possible impropri- 
  

3. Mrs. Inwards when recalled to the 
stand testified in response to a question 
by the court that “all in all it must have 

influenced me. 1 didn’t: realize it at the 
time.”   

  

  
  
 



1002 

UNITED STATES of America, 

Plaintiff-Appellee, 
  

V. 

Frank D’ANGELO, Richard Delcazal and 

Wade A. Freman, 

Defendants-Appellants. 

No. 78-5737 

Summary Calendar.* 

United States Court of Appeals, 

Fifth Circuit. 

July 16, 1979. 

Defendants were convicted in the Unit- 

ed States District Court for the Southern 

District of Texas at Brownsville, Reynaldo 

G. Garza, J., of offenses arising from a 

scheme to distribute marijuana, and they 

appealed. The Court of Appeals, Charles 

Clark, Circuit Judge held, inter alia, that 

the jury’s verdict could not be impeached on 

the basis of a note sent by the jury to the 

judge during its deliberations. 

Affirmed. 

1. Criminal Law &=422(1) 

In prosecution of defendants for of- 

fenses arising from scheme to distribute 

marijuana, trial court did not err in allow- 

ing unindicted coconspirator to testify con- 

cerning marijuana delivery that was al- 

legedly intended originally for one defend- 

ant but diverted to another buyer, since 

such testimony was evidence, of overt acts 

committed by other conspirators during life 

of conspiracy and was admissible as such. 

2. Criminal Law &=598(2) 

Trial court in drug prosecution did not 

abuse its discretion in refusing to grant 

* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. 

Citizens Casualty Co. of New York et al., 5 Cir., 
1970, 431 F.2d 409, Part 1. 

1. All three appellants were indicted along with 

fourteen other persons for conspiracy to pos- 

sess marijuana with intent to distribute, 21 

U.S.C. § 841(a)(1), 846. Decazal and Freman 

were also indicted on one substantive count of 

possession of marijuana with intent to distrib- 

Em we A a yy or rs 

fn \ 598 FEDERAL REPORTER, 2d SERIES 

indefinite continuance to permit defendants 

to obtain presence of witness whom they at 

first tried to locate only three days prior to 
trial el 

3. Criminal Law &957(3) 

Trial court in drug prosecution acted 

properly in refusing to permit jury’s guilty 

verdict to be impeached on basis of note 

sent to trial judge by jury after jury 

reached its verdict. Fed.Rules Evid. rule 

606(b), 28 U.S.C.A. 

Eduardo R. Rodriguez, Brownsville, Tex., 

Frank G. DeSalvo, Metairie, La., for de- 

fendants-appellants. 

J. A. Canales, U.S. Atty., James R. 

Gough, George A. Kelt, Jr., Asst. U.S. At- 

tys., Houston, Tex., John Patrick Smith, 

Asst. U.S. Atty., Brownsville, Tex., Emilio 

Davila, Jr., Asst. U.S. Atty., Laredo, Tex., 

for plaintiff-appellee. 

Appeals from the United States District 

Court for the Southern District of Texas. 

Before CLARK, GEE and HILL, Circuit 

Judges. 

CHARLES CLARK, Circuit Judge: 

The appellants, Frank D’Angelo, Richard 

Delcazal and Wade A. Freman, were tried 

together and convicted on different of- 

fenses arising from a scheme to distribute 

marijuana.! We affirm the convictions. 

[1] Appellants Delcazal and Freman 

raise two issues on appeal. First, they ar- 

gue that the district court erred in allowing 

the government's chief witness—a co-con- 

spirator not indicted by the grand jury—to 

testify concerning a marijuana delivery 

that was allegedly intended originally for 

Delcazal but was diverted to another buyer. 

ute, 21 U.S.C. § 841(a)(1). Decazal was addi- 

tionally charged with three counts of the use of 

a communication facility to facilitate the distri- 

bution of marijuana, 21 U.S.C. § 843(b). D’An- 

gelo, Decazal and Freman were granted a sev- 

erance from the other fourteen co-defendants 

and were tried together before a jury. The jury 

found the defendants guilty on all counts.   

 



    

   
   

    

   

  

     

     
   

  

acted 

s guilty 

of note 

er jury 

id. rule 

le, Tex., 

for de-   

a
 
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mes R. 

S. At- 

Smith, 

, Emilio i 
do, Tex., : 

District 

f Texas. 

, Circuit 

    ge: 

, Richard 

ere tried 

brent of - 

Histribute 

tions. 

    

   
     

    

    
   Freman 

they ar- 

allowing 

la co-con- 

jury—to 

delivery 

nally for 

er buyer. 

    
    

     
    
    
    

    

  

was add: 

the use of 

b the distn- 

(b). D'An- 

nted a sev- 

defendants 

r. The jury 

ounts. 

   
    

    
     

  

   

      

      

  

   

    

UNITED STATES v. D’ANGELO 1003 
Cite as 598 F.2d 1002 (1979) 

No objection was made to the testimony at 
trial and there was no error in its admis- 
sion. The testimony was evidence of overt 
acts committed by other conspirators during 
the life of the conspiracy and as such was 
admissible. United States v. Elliot, 571 
F.2d 880, 911 (5th Cir. 1978); United States 
v. Perez, 489 F.2d 51, 70 (1973), cert. denied, 
417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 
(1974). 

[2] Second, Decazal and Freman claim 
error in the district court’s refusal to grant 
a motion for an indefinite continuance to 
obtain the presence of a witness the defend- 
ants had first tried to locate only three days 
prior to trial. The court denied the motion 
on the grounds that the defendants had 
failed to exercise due diligence in attempt- 
ing to procure the witness. The exercise of 
due diligence is a prerequisite to the grant 
of such motions. United States v. Uptain, 
531 F.2d 1281, 1286 (5th Cir. 1976). A dis- 
trict court’s ruling on such a motion will not 
be disturbed unless an abuse of discretion is 
shown. United States v. Smith, 591 F.2d 
1105, 1110 (5th Cir. 1979). No abuse of 
discretion occurred here. 

[3] The sole issue raised on appeal by 
e/appellant D'Angelo concerns a note sent 

to the trial judge by the jury’aftey the jury 
reached its verdict. The note Treads: 

We have had great difficulty deciding 
and coming to agreement about Frank 
D’Angelo and have decided as we did only 
because we believe he knew about the 

2. Defense counsel present in the courtroom 
when the judge received the note neither re- 
quested nor suggested any procedure different 
from that followed by the court. Before bring- 
ing the jury back into the courtroom. the court 
heard comments on the note from D’Angelo’s 
counsel, the counsel for the other defendants, 
and the prosecutor. After rereading the note 
aloud several times, the court stated that the 
jury appeared to be attempting to explain its 
verdict. Mr. Zibilizh, counsel for Freman, not- 
ed that the contents of the note “could fly in 
the face of the law” as the judge gave it, stating 
that “just because somebody knew of a trans- 
action doesn’t make him a conspirator neces- 
sarily.” Following up on Mr. Zibilizh’s com- 
ment, the judge agreed that the jury would 
have to find that D’ Angelo was a willful partici- 
pant before it could convict him. A dialogue 
then took place between the judge and Mr. 

transactions and thus was a conspirator. 
(Emphasis by the jury) 

After discussing the significance of the note 
with counsel out of the jury’s presence, the 
court decided that the note could got 
impeach the jury’s general verdict of guilty. 
The jury was brought into the courtroom 
alld poled, and all jurors. adhered to the 
verdict. None of the jurors made any ref- 
erence to the note or in any other way 
attempted to qualify or elaborate on the 
verdict.? : 

We cannot divine with certainty why the 
jury sent the note or what it was intended 
to mean. It is entirely possible that the 
note means what D’Angelo claims it means: 
that the jury found D’Angelo guilty only 
because he knew about the transactions and 
thus was a conspirator. Willful participa- 
tion is an essential element of the crime of 
conspiracy; mere knowledge of a conspir- 
acy does not itself make a person a conspir- 
ator. E. g., United States v. Binetti, 552 
F.2d 1141 (5th Cir. 1977). If the jury con- 
victed D’Angelo on the basis of knowledge 
alone, it misapplied the law. = 

The possibility that the jury misunder- 
stood or even Intentionally misapplied the 
law, however, does not warrant reversal of 
the conviction. D'Angelo’s attack on the 
verdict is an attempt to expose the jury’s 
collective_mental process to judicial scruti- 
ny. \ There is no claim that the court erred | 
in giving the law to the jury as it did. In 

Rodriguez, D’Angelo’s counsel. The judge ° 
spoke of the note as the jury's “mental 
processes working,” and Mr. Rodriguez agreed, 
stating that “There seems to be some doubt or 
there’s something in the back of their mind.” 
It was not suggested by D’Angelo’s counsel or 
any of the other lawyers present that the court 
declare a mistrial or send the jury back for 
more deliberation. Nor was there any effort to 
seek to interrogate the jurors to determine the 
purpose of the note, a procedure condemned in 
United States v. Sexton, 456 F.2d 961, 965-67 
(5th Cir. 1972). See also United States v. Lee, 
532 F.2d 911, 915 (3rd Cir. 1976). All counsel 
agreed with the court that the proper course of 
action was a jury poll. D’Angelo’s counsel did 
not attempt to impeach the jury’s verdict on 
the basis of the note until post trial motions 
were filed for a directed verdict of acquittal or 
new trial.   



  

  

Er rr gt YS To TT TT ITT SE RE TR 

1004 598 FEDERAL REPORTER, 2d SERIES 

fact the court’s instructions placed heavy 

emphasis on the necessity of a finding of 

willful participation in the conspiracy. 

There is no claim that evidence of knowing 

participation did not exist. Indeed, there 

corld=mMOt "BE such a cram for there was 

testimony by a government witness of di- 

rect dealings with D'Angelo. There is no 

claim that the jury was corrupted™by=stme 
exiraneous influence, that the verdict was 
not unanimous, or that the verdict was any- 

thing other than a general verdict of 

guilty. Rather, D’Angelo’s attack on the 
verdict is, as the trial judge characterized 

it, an attempt to use the jury's note to 

# probe its process of deliberation and find 

out how and why the jury reached its ver- 

dict. That is the one form of attack on a 
verdict that has always been forbidden in 

Anglo-American criminal law. 

A jury has an obligation to follow the law 

as it is given by the trial court, but it is a 

peculiar facet of the jury institution that 

once a verdict is rendered, no judicial in- 

quiry is permitted into the jury's delibera- 
tive process to determine if in fact the 

court’s instructions were properly followed. 

As the Supreme Court noted long ago, in 

that limited sense a jury passes both on law 

and fact, for “ ‘in practice, the verdict of 

the jury, both upon the law and the fact, is 

conclusive; because, from the nature of the 

proceeding, there is no judicial power by 

3. Because there is no question in this case as to 

what the jury’s verdict actually was or as to 

whether or not it was unanimous, it is different 

in kind from cases in which a jury sends a note 

to a judge that casts suspicion on whether the 

verdict is unqualified or unanimous. Such 

cases usually involve a verdict accompanied by 

a jury request for leniency. See e. g., Cook v. 

United States, 379 F.2d 966 (5th Cir. 1967); 

Krull v. United States, 240 F.2d 122 (5th Cir. 

1957); United States v. Lee, 532 F.2d 911 (3rd 

Cir. 1976); Thlinket Packing Co. v. United 

States, 236 F. 109 (9th Cir. 1916). Such a 

request is normally regarded as surplusage. 

8A Moore's Federal Practice § 31.02[3]. A re- 

quest by the jury for clemency does not invali- 

date the verdict and may be disregarded by the 

court. Krull v. United States, supra, 240 F.2d 

at 133; United States v. Lee, supra, 532 F.2d at 
914-15. 

It is true that in United States v. Cook, supra, 

a conviction was reversed because of circum- 

stances that included a jury request for lenien- 

which the conclusion of law thus brought 

upon the record by that verdict can be 

reversed, set aside, or inquired into.’” 

Sparf v. United States, 156 U.S. 51, 80, 15 

S.Ct. 278, 285, 39 L.Ed. 343 (1895) (quoting 
from Com. v. Anthes, 5 Gray 185). 

Severe limitations exist on all attempts 

“to breach the shroud surrounding jury de- 

liberations,”” United States v. Gipson, 553 

F.2d 453,-457 (5th Cir. 1977). The rule of 

the common law is that a juror may not 

impeach his verdict. E. g., McDonald v. 

Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 

1300 (1915); United States v. Blackburn, 

446 F.2d 1089, 1091 (5th Cir. 1971); Dickin- 

son v. United States, 421 F.2d 630, 632 (5th 

Cir. 1970). The sanctity of the verdict may 

be impugned only by evidence of im mproper 
  

    

external influences on the jury’ 

: States, j146 U.S. 140, 13 

S. Ct. 50, 36 L.Ed. 917 (1892); (Stimack v 

Texal, 548 F.2d 588, 589 (5th Cir. 1977); 
(United States v. Howard) 506 F.2d 865, 868 

(oth Cir. 1975); or by a post-verdict determi- 

nation that the evidence did not warrant 

submission to the jury in the first instance. 

Inquiry into the conscience or compliance of 

  

  

  

  

jurors, by contrast, requires inquiry into a 

matter that essentially inheres in the ver- 
  

  

dict, Mattox v. United States, supra, 146 

U.S. at 149, 13 S.Ct. at 53, and is thus 

strictly forbidden. See United States v. 

cy. However, in Cook, the jury found a de- 

fendant guilty but included an asterisk on the 

verdict which referred to a footnote requesting 

“every degree of leniency possible.” When 

polled, ten of the jurors responded to the ques- 

tion guilty or not guilty by answering, “Guilty, 

based on the note at the bottom.” On appeal 

this court held that the note, coupled with the 

conditional answers given by the jurors when 

polled, created doubt as toc what the verdict 

actually was and to whether or not it was 

unanimous. Cook held that it was error to 

deny defense counsel's requests for a second 

poll, or for further jury deliberations accompa- 

nied by an instruction that the jury had no 

power to contro! the sentence once a verdict 

was returned. Cook has been described as ‘‘sui 

generis in federal decisional law.” United 

States v. Lee, supra, 532 F.2d at 914. Unlike 

Cook, in the case at bar neither the note nor 

the jury poll suggest any irregularity intrinsic 

to the actual verdict. 

C—O II ergs 

H
H
 ®
t
 

C
O
O
 

y
o
 

0
0
  



  

or 
Be trie nat a ol RI es ET Eo Tm PEs Sor Re ANC Ae Cals Ei 

PITTS v. CHERRY 

To pi et SES itso eo 
EC SE 

1005 
Cite as 598 F.2d 1005 (1979) 

Howard, supra, 506 F.2d at 868 n. 3; Miller 

v. United States, 403 F.2d 77, 83 n. 11 (2nd 
Cir. 1968). With the exception for evidence 

concerning extraneous influence, the Feder- 

al Rules of Evidence bar juror testimony 
“as to any matter or statement occurring 

during the course of the jury’s deliberation 

_or to the effect of anything upon his or any 

other juror’s mind or emotions as influenc- 
ing him to assent or dissent from the ver- 
dict or indictment or concerning his mental 
processes in connection therewith.” Fed.R. 

Evid. 606(b). 

The necessary consequence of the rule 

against examination of the jury’s mental 

process is that convictions must stand de- 

spite the presence of plausible suspicion 

that the jury’s mental process was ill-con- 

ceived. In Davis v. United Stategf 47 F.2d 

1071 (5th Cir. 1931), for example, a convic- 

tion was upheld despite the post-trial testi- 

mony of two jurors that the jury had con- 

sidered the defendant's failure to take the 

stand in his own defense as evidence of 

guilt, and that the jurors had not heard the 

trial court’s instruction that the jury was 

not to consider or discuss the defendant's 

failure to testify. Relying on_McDonald v. 

Pless, supra, the court held that the _improp- 

er argument of jurors within the jury room 

was not grounds for upsetting a verdict. 47 

F.2d at 1072. 

“[TThe essential feature of a jury lies in 

the interposition between the accused and 

his accuser of the commonsense judgment 

of a group of laymen.” Williams v. Florida, 

399 U.S. 78, 100, 90 S.Ct. 1893, 1906, 26 

L.Ed.2d 446 (1970). To preserve that essen- 

tial feature, the law trusts that a jury will 

understand and follow the law as instruct- 

ed, and it indulges the jury when apparent 

gaps in understanding or logic later sur- 

face! A jury, for example, may render 

logically inconsistent verdicts on different 

counts of an indictment or as to different 

co-defendants. It is not the duty of the 

4. Professor Moore writes: “There must come a 

time when the temptation to analyze and frag- 

ment a jury verdict must yield to the perspec- 

tive that lack of perfection inheres in the jury 

system.” 8A Moore's Federal Practice * 31.- 

08[1][a]. 

* 

court “to unravel the ratiocinations of the 

jury’s collective logic.” Odom v. United 

States, 377 F.2d 853, 857 (5th Cir. 1967). 

Nor may a court speculate that a verdict 

may have been the result of compromise, 

mistake or even carelessness. United 

States v. Dotterweich, 320 U.S. 277, 279, 64 

S.Ct. 134, 135, 88 L.Ed. 48 (1943); Dunn v. 

United States, 284 U.S. 390, 393-94, 52 S.Ct. 

189, 190-91, 76 L.Ed. 356 (1932). “Juries 

may indulge in precisely such motives or 

vagaries.” United States v. Dotterweich, 

supra, 320 U.S. at 279, 64 S.Ct. at 135. If 

courts were permitted to retry such ver- 

dicts, the result would be that every jury 

verdict would either become the court's ver- 

dict or would be permitted to stand only by 

the court's leave. This would destroy the 

effectiveness of the jury process which sub- 

stantial justice demands and the constitu- 

tion guarantees. 

All convictions are 

AFFIRMED. 

O < KEYNUMBERSYSTEM 

Willie Eugene PITTS et al., 

Plaintiffs-Appellants, 

Vv. 

Jim CHERRY et al., 

Defendants-Appellees. 

No. 78-3603 

Summary Calendar.* 

United States Court of Appeals, 

Fifth Circuit. 

July 16, 1979. 

Parents of black schoolchildren sought 

to challenge the desegregation plan of the 

* Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. 

Citizens Casualty Co. of New York, et al., 5 Cir. 

1970, 431 F.2d 409, Part I. 

ETRE TST EEE tt my LL Loh ge 

  

 



public housing 
1th the Mmotivg . 

But jt neverth 

eel that aboligjg i Serve gg ama 

ey will vote 

'e have no docy. 

logue of reasons 
ich every public 

un—IJost taxes or 

to such housing, 
nicipal borrowing 

ittractive rea] es. 
rden on schools. 

ng has been and 
roversial issue js 

from this cats. 
of evidence that 

ublic housing §¢ 
‘ill share the fy. 

ity with old resi. 

two underlying 
first, that we 

a legitimate ip. 

al government 3 
e Authority con- 
fact that people 
ill move in may 

sideration. But 
ken assumption 
not recognize as 

h a goal, if legit- 
e discriminatory 

+ constitutionally 
reme Court had 
hapiro. It ae- 

s Congress could 

ipation in school 
rized the use of 

UNITED STATES EX REL. OWEN v. McMANN 
Cite as 435 F.2d 813 (1970) > 

joint funds for the building of segre- 

gated schools.” 394 U.S. at 641, 89 S.Ct. 

at 1335. 

There is one final argument which 

could be but was not made. Putting the 

community’s interest in a two-year resi- 

dency requirement in the most favorable 

light, one could urge that it is reasonable 

for a municipality to give preference to 

its older residents, not to discourage out- 

giders from moving in, but to recognize 

those who have a prior claim on its char- 

ity. This facially appealing proposition 

does not withstand analysis. The “prior 

claim” cannot rest on any past tax con- 

tributions which longer term residents 

may have made to the community. Sha- 

piro, supra at 632-633, £0 S.Ct. 1322, It 

cannot, as we have noted, rest on the sup- 

position that it was only the established 

resident for whom public housing was 

planned. What remains is the sentiment 

that any person who has resided in New- 

port for more than two years is more a 

part of the community than a newcomer 

and has a higher claim to its bounty. 

But such a value judgment would, as the 

Court noted in reference to the past 

contributions argument, “logically per- 

mit the State to bar new residents from 

schools, parks, and libraries”. Shapiro, 

supra at 632, 89 S.Ct. at 1330. More- 

over, such a sentiment is particularly in- 

appropriate for Newport which devotes 

forty per cent of its public housing to 
service personnel who are exempted from 

any durational requirement. Finally, 

such a vague sentiment, even if permis- 

sible, does not rise to the level of com- 

pelling state interest. 

Even by a standard of rational rela- 

tionship to a permissible goal, we doubt 
that the justifications put forth by the 
Authority could withstand judicial scru- 

tiny. The goal of preventing an influx 

of outsiders is constitutionally impermis- 
sible. The residency requirement is not 

rationally related to the goal of planning. 

The objective of achieving political sup- 

port by discriminatory means or by 

nourishing an illusion that means dis- 

criminate is not one which the Constitu- 
tion recognizes. Nor do we believe the 

goal of promoting provincial prejudices 
toward long-time residents is cognizable 

under a Constitution which was written 
partly for the purpose of eradicating 

such provincialism. Certainly none of 
these interests counterbalances the fun- 

damental individual right -involved. 

The Authority, in addition to its sub- 
stantive arguments, claims that summary 
judgment was improper since various is- 
sues of material fact existed; namely, 
whether one of the plaintiffs was in fact 
prejudiced financially by her rental in 

the private market, whether that market 

was inadequate, whether the residency 

requirement does in fact “fence out” low 
income families from other states, and 
whether abolition of the residency re- 
quirement is likely to deter the building 

of additional public housing. For rea- 

sons already expressed, we deem these is- 

sues either foreclosed by the record be- 
low or irrelevant to the resolution of this 

appeal. 

Affirmed. 

KEY NUMBER SYSTEM) | | 
\ 

UNITED STATES of America ex rel 

Craig S. OWEN, Petitioner- 

Appellee, 

Vv. 

Hon. Daniel J. McMANN, Warden of Au- 

burn State Prison, Auburn, New 

York, Respondent-Appellant. 

No. 133, Docket 34822. 

United States Court of Appeals, 

Second Circuit. 

Argued Oct. 21, 1970. 

Decided Dec. 8, 1970. 

Habeas corpus proceeding. The Unit- 
ed States District Court for the North- 
ern District of New York, Edmund Port, 

J., granted petition and the state ap- 

pealed. The Court of Appeals, Friendly, 

Circuit Judge, held that where jurors 

   



  

  

814 

considered specific extrarecord facts 

about petitioner in the course of their 
deliberations, there was such a probabil- 
ity that prejudice would result that the 

verdict must be deemed inherently lack- 

ing in due process. 

Affirmed. 

1. Criminal Law €=113 

Jury €=33(3) 
One, although by no means the only, 

purpose of insistence on trial in vicin- 
age in federal Constitution must have 

been to entitle defendant to trial where 
he is known. U.S.C.A.Const. art. 3, § 2; 

U.S.C.A.Const. Amend. 6. 

2. Criminal Law €=662(1) 

To resort to the metaphor that the 
moment a juror passes a fraction of an 

inch beyond the record evidence he be- 
comes “an unsworn witness’ against the 

defendant within the scope of the con- 
frontation clause of the Sixth Amend- 
ment is to ignore centuries of history 

and to assume an answer rather than to 

provide the basis for one. U.S.C.A.Const. 

Amends. 6, 14. 

3. Criminal Law 2662 (1) 

Touchstone of decision in case where 

jurors have considered or discussed mat- 

ters not in record is not mere fact of in- 

filtration of some molecules of extra- 

record matter, but nature of what has 

been infiltrated and probability of preju- 
dice. U.S.C.A.Const. Amends. 6, 14. 

4. Jury €299(1) 

While attitudes, opinions, and phil- 

osophies of jurors cannot be expunged 
from jury’s deliberations, and jury may 

leaven its deliberations with its wisdom 
and experience, in doing so it must not 

consider specific extrarecord facts about 

the specific defendant on trial. 

<5. Criminal Law 2957 (5) 

Federal court will disregard state 

evidentiary rule against jurors’ impeach- 

ment of own verdict, if that rule prevents 
what is only method of proving that de- 

fendant had been denied due process by 

jury’s consideration of prejudicial extra- 

435 FEDERAL REPORTER, 2d SERIES 

record facts. U.S.C.A.Const. Amends, ¢ 
14. ; 

6. Habeas Corpus €=85.5(12) 

State failed to sustain burden of 
showing that defense consented to jy. 
rors’ bringing into jury room specific 

factual material about petitioner that 

was derived solely from their persona} 

lives rather than from evidence adduced 
at trial. U.S.C.A.Const. Amends. 6, 14. 

SE — 

Brenda Soloff, New York City (Louis 

J. Lefkowitz, Atty. Gen. of N. Y., Samu. 

el A. Hirshowitz, First Asst. Atty. Gen. 

and Iris A. Steel, Asst. Atty. Gen., of 
counsel), for respondent-appellant. 

Richard N. Bach, Utica, N. Y., for pe- 

titioner-appellee. 

Before WATERMAN, Senior Circuit 

Judge, and FRIENDLY and FEIN- 

BERG, Circuit Judges. 
wy 

FRIENDLY, Circuit Judge: 

Petitioner Craig S. Owen was tried 
early in 1966 in the County Court of 
Oneida County, N. Y., with one Sebre- 
gandio, on charges of first degree rob- 

bery, second degree assault and first de- 

gree grand larceny. After some 13 to 
14 hours of deliberation and a report of 

inability to agree with respect to one de- 
fendant, the jury returned to the court- 

room around 2 A.M. and the foreman re- 
ported both defendants had been found 
guilty on all counts. When the jury was 

being polled with respect to Owen, one 

juror, Thomas S. Kassouf, inquired 

whether it was possible to convict only 
of grand larceny “or do we have to have 
the whole three?” When the judge de- 

clined to discuss the matter, Kassouf en- 
dorsed the foreman’s report. Evidently 

sensing that something might be amiss, 

Owen’s attorney, Mr. Tierney, obtained 

an affidavit from Kassouf. In addition 

to claiming that the foreman, Mr. Jef- 
frey, had told the jury that it had to 
find the defendants guilty on all three  



A.Const. Amends, 6, 

85.5(12) 

sustain burden of 
be consented to ju- 
jury room specific 
out petitioner that 
rom their personal 
m evidence adduced 
nst. Amends. 6, 14. 

» York City (Louis 

en. of N. Y., Samu- 
st Asst. Atty. Gen. 
hsst. Atty. Gen., of 
ent-appellant. 

tica, N. Y., for pe. 

AN, Senior Circuit 

DLY and FEIN- 

BS, 

it Judge: 

S. Owen was tried 

County Court of 
Y., with one Sebre- 
hf first degree rob- 

hssault and first de- 
After some 13 to 

ion and a report of 
h respect to one de- 

urned to the court- 

bnd the foreman re- 

ts had been found 

When the jury was 
spect to Owen, one 
Kassouf, inquired 

ble to convict only 

do we have to have 

hen the judge de 
matter, Kassouf en- 

| report. Evidently 

ng might be amiss 

. Tierney, obtained 

hssouf. In addition 

foreman, Mr. Jef- 

ury that it had to 

guilty on all three 

UNITED STATES EX REL. OWEN v. McMANN 815 

Cite as 435 F.2d 813 (1970) 

charges or none 1 but that he and several 

other jurors had voted to convict on the 
and larceny charge alone, Kassouf 

gverred that Jeffrey and two other ju- 

rors, Mrs, Japak and Mrs. Taurisano, ip- 

formed the other jurors that they “knew 

al about” Craig Owen, and referred to 

unfavorable incidents in Owen's life 

which were entirely unrelated to the 

charge. Another juror, Mr. Tucker, 

made an affidavit that these same three 

jurors “informed the jury that they 

knew various things about Craig Owen 

and that they had reason to believe from 

outside information that he was guilty.” 

_At the time of sentence, Mr. Tierney 

submitted Kassouf’s and Tucker's affi- 

dave support of a motion for a new 

gral. This was denied. On appeal, 

Owen challenged thé propriety of the al- 
Jeged infiltration of extra-record evi- 

dence into the jury’s deliberations, but 

the Appellate Division affirmed without 
opinion, People v. Owen, 28 A.D.2d 824, 
289 N.Y.S.2d 721 (4th Dept. 1967), and 
a judge of the Court of Appeals denied 
leave to appeal. After the second deci- 

sion in People v. DeLucia, 20 N.Y.2d 

275, 279, 282 N.Y.S.2d 526, 530, 229 N. 

E24 211 (1967), seemingly repudiating 

the New York rule against jurors’ im- 

peachment of their verdict in the case of 

“inherently prejudicial ‘outside influ- 

ences,” Owen applied for reconsidera- 

tion of the denial of leave to appeal, but 

without success. 

Owen’s petition for fgderal habeas in 
the District Court for the Northern Dis- 

trict of New York contended, inter alia, 

that he had been convicted on less than a 
unanimous verdict ‘and had been de- 

I. Kassouf also claimed that he requested 

Mr. Jeffrey to ask the judge for instrue- 

tions on this point but that Jeffrey re- 

fused to do so. 

Very likely this was on the basis of the 

initial ruling in People v. DeLucia, 15 

N.Y.24 204,206, 258 NX.Y.S.24 377, 375, 

206 N.E.20 324, 324, cert. denied 382 

ES. 821, 8 S.Ct. 50, 15. LE424 67 

(1965), that “jurors may not impeach 

their own duly rendered verdict by state- 

ments or testimony averring their own 

prived of his Sixth Amendment right to 

confrontation by the jury’s considering 

extra-record statements about him by 

three jurors. Finding the state record 

insufficient to enable him to dispose of 

these issues, Judge Port conducted an 

evidentiary hedfing. Kassoul and TucCk- 
er testilied along the lines or their 
post-trial affidavits; a third juror, 
Shultz, stated only that some juror had 

said that “Owen’s father was always 

getting him out of trouble.” Mr. Jef- 
frey denied having made or heard any 
adverse statement, save only that one ju- 

ror (evidently Mrs. Janak, whose hus- 

band was an investigator) had comment- 
ed that Owen, while a member of the 

Utica Police Department, had taken a 

prowl car outside the city limits. Mrs. 

Janak and Mrs. Taurisano denied having 

made or heard any comments on matters 

not in evidence. Upon the basis of the 

testimony, the court found: 

In substance, the jurors or some of 

them were told by other jurors during 

the trial and the deliberations: that 
the defendant had been in trouble all 

his life; that he had been suspended 
from the police force in connection 

with the unauthorized use of a prowl 
car; that he had been involved in a 
fight in a tavern; that one of the ju- 

ror’s husband was an investigator and 

that he knew all about plaintiff’s 
background and character, which was 

bad; and that petitioner's father was 

always getting him out of trouble. 

Concluding that in consequence Owen 
had been deprived of his Sixth Amend- 
ment right of confrontation, therefore 

making 1t unnecessary to deal with the 

misconduct within or without the jury- 

room ; much less can they do so by state- 

ments presented in the form of hearsay 

affidavits.” However, we must reiterate 

previous expressions of regret that in New 

York prisoner cases raising constitution- 

al claims as substantial as this one, we 

do not have the benefit of a considered 

statement, however brief, by a New York 

appellate court. A quite different case 

would be presented, for example, if the 

trial judge or the Appellate Division had 

indicated disbelief in the affidavits filed.   

  

  

 



816 : 435 FEDERAL REPORTER, 2d SERIES 

claim of a less than unanimous verdict, 
‘the judge set aside Owen’s convictions 

and ordered his discharge, unless the 
State retried him within 60 days, this 
period to be extended pending any ap- 

peal. The State has appealed. 

Although the findings went to the 

verge permitted by the evidence at the 

post-trial hearing, the State does not 

and could not properly ask us to reject 

them as clearly erroneous. It contends 
rather that, accepting them, we “Should 
reverse as a ‘matter of lay. 

Both parties recognize Parker Y. Glad: 
den/ 385 11S, 363, 87 aos 171, 
Ed. 2 420 (1966), to be the starting 

point for discussion. That case makes 1t 
plain that 1 a DAlff testified he had 
entered the Jory oom and had made 
statements such as the district court 
found were here made by jurors about 

Owen, the confrontation clause of the 

Sixth Amendment and the due process 

clause of the Fourteenth would require a 
judgment of conviction to be set aside. 

We think the result would. be the same 
if a nop-juror, who Waserthe) a court 
officer nor a witness, admitted to hav- 

ing made such statements to the jury 

here. To be sure, in rejecting Oregon’s 

argument in Parker that no harm could 

have resulted, the Court said, 385 U.S. 

at 365, 87 S.Ct. at 470: 

This overlooks the fact that the offi- 

cial character of the bailiff—as an of- 
ficer of the court as well as the State 

—beyond question carries great 

welght with a jury which he had been 

shepherding for eight days and 
nights. 

Cf. Remmer v. United States, 347 U.S. 

227, 229-230, 74 S.Ct. 450, 98 L.Ed. 654 
(1954). But that was written in a con- 

text where the bailiff’s remarks were 
only an unsupported statement of opin- 
jon, “that wicked fellow * * * js 
guilty,” and an assurance that any error 

by the jury in finding him so would be 
corrected by the Supreme Court. The 
Court might well have thought that if 

such statements had been made by a 
person who was neither a witness, cf. 

# 

Turner v. Louisiana, 379 U.S. 466, 85 §. 
Ct. 546, 13 L.Ed.2d 424 (1965), nor ap 
official, they would not have been 

weighty enough to constitute a prejudi- 
cial violation of a defendant’s rights up- 

der the confrontation or due process 
clauses, per contra when made by an of- 

ficial, however lowly. The statements 
here found to have been made were suf- 
ficiently more damaging to Owen than 

the remarks of the “apparently Elizabe- 
than-tongued bailiff” in Parker, 385 U. 
S. at 367, 87 S.Ct. 468 (dissenting opin- 
ion of Harlan, J.), that the added factor 

of official utterance would not be re- 
quired to show prejudice. 

If our analysis is correct up to 
this point, we must affirm unless (1) jt = | 
makes a legally significant difference 
that the remarks here were by jurors 
rather than the hypothetical non-juror 

(oY (2 New York may lawfully rule out 
jurors’ testimony as a SOUTCE OF Proof of 
the facts here alleged qr (3) petitioner 
has waived his rights. 

Consideration of the first point takes 
us back to the jury’s earliest days. The 
thirteenth century jury was selected not 
because of its ignorance but because of 
its knowledge. “The decision upon ques- 

tions of fact was left to them because 
they were already acquainted with them, 

or if not already so acquainted with 
them, because they might easily acquire 
the necessary knowledge.” 1 Holds- 

worth, A History of English Law 317 

(3d ed. 1922). See also 2 Pollock & 
Maitland, The History of English Law 

624-27 (2d ed. 1898). Members of the 
presenting jury were allowed to be mem- 

bers of the petty jury until a mid-14th 
century statute permitted challenge in 

cases of trespass or felony, 25 Edw. III, 
St. 5, ¢. 3 (1351-52). It was only grad- 

ually that the character of the petty 
Jury changed. By 1468 Sir John Fortes- 
cue was “able to regard the jury as a 
body of impartial men who come into 
court with an open mind; instead of 

finding the verdict out of their own 
knowledge of the events, the parties or 

their counsel in open court present their 

evidence to the jury, and witnesses are 

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9 U.S. 466, 85 8. 
(1965), nor an 

not have been 
titute a prejudi. 
dant’s rights up. 

or due process 
made by an of- 

The statements 
h- made were suf- 

g to Owen than 
parently Elizabe- 

Parker, 385 U. 
(dissenting opin- 
the added factor 

ould not be re 

correct up to 

rm unless (1) it 

icant difference 

were by jurors 

etical non-juror 

lawfully rule out 

ource of proof of 
pr (3) petitioner 

first point takes 
rliest days. The 
was selected not 

e but because of 

cision upon ques- 
to them because 

hinted with them, 

acquainted with 
rht easily acquire 

Hge.”” 1 Holds- 

nglish Law 317 
Iso 2 Pollock & 
of English Law 
Members of the 

lowed to be mem- 

until a mid-14th 

ted challenge in 

ony, 25 Edw. III, 
It was only grad- 

er of the petty 

Sir John Fortes- 

d the jury as a 
, who come into 

ind; instead of 
t of their own 

s, the parties or 

yurt present their 
nd witnesses are 

UNITED STATES EX REL. OWEN v. McMANN 817 
Cite as 435 F.2d 813 (1970) 

examined upon oath.” However, “jurors 

were still allowed to use their own 

knowledge in reaching a verdict, and 

might reach a verdict although no wit- 

nesses and no evidence had” been pro- 

duced.” Plucknett, A Concise History 

of the Common Law 129-30 (5th ed. 
1956). Another four centuries were to 

elapse before Parliament provided in 

1856 that a jury “trial could be moved 
to the Central Criminal Court if it was 

feared that a local jury would not be im- 

partial.” Id. at 128. 

[1] The twentieth century American 

jury has moved.a.long.way.from its me- 
dieval origins. Today's juror must be 
ndifTerent’ and “[h]is verdict must be 

based upon the evidence developed at the 

trial.” Irvin v. Dowd, 366 U.S. 717, 722, 

81 S.Ct. 1639, 1642, 6 L.Ed.2d4 751 

(1961). See also Patterson v. Colorado, 

205 U.S. 454, 462, 27 S.Ct. 556, 51 L.Ed. 
879 (1907). Still we would not lightly 

assume that the jury’s original role as 

the voice of the country may not suffi- 
ciently persist that neither the specific 
guarantees of an impartial jury and of 

confrontation nor the more general one 

of due process would be violated simply 
because jurors with open minds were in- 

fluenced to some degree by community 

knowledge that a defendant was 
“wicked” or the reverse, even though 

this was not in evidence. See Irvin v. 

Dowd, supra, 366 U.S. at 722-723, 81 S. 

Ct. 1639. One, although by no means 

the only, purpose of the insistence on 

trial in the vicinage both in Article III, 

§ 2, and in the Sixth Amendment, must 

have been to entitle a defendant to trial 
where he is known—and this may some- 

times work against him rather than in 

his favor. Indeed there are still sections 
of the country where it might be impos- 

sible to find twelve jurors who were to- 
tally ignorant about a defendant. More- 
over, to allow verdicts to be attacked 
merely for casual jury-room references 
on the basis of matters not in evidence 

would add unduly to the already fragile 

state of criminal convictions. See Unit- 

ed States v. McKinney, 429 F.2d 1019, 

1031-1032 (5 Cir. 1970) (dissenting 
opinion of Judge Godbold). As Mr. Jus- 

tice Clark observed, dissenting in Rideau 
v. Louisiana, 373 U.S. 723, 733, 83 S.Ct. 

1417, 1423, 10 L.Ed.2d 663 (1963), “it is 

an impossible standard to require that 

tribunal [the jury] to be a laboratory, 
completely sterilized and freed from any 

external factors.” 

[2] While Parker v. Gladden, supra, 

consistently with the precedents it cites, 
demonstrates the Court’s continuing con- 

cern with protecting a criminal defend- 

ant from the possibility of a verdict 
based on a consideration of facts not 

properly before the jury, it is thus not 

automatically determinative when the 

extra-record remarks are by jurors 

themselves. The invocation of the con- 
frontation clause in Parker was entirely 

appropriate to shield the defendant from 

comments to the jury by one whose 

statements, if admissible at all, could 
have properly been received only from 

the witness stand, subject to the proce- 
dural safeguards which the Sixth 

Amendment requires. But, so far as we 

know, the Court has npever..suggested 
that jurdts, whose duty it is to consider 

and discuss the factual material properly 
before them, become “unsworn witness- 

es” within the scope of the confrontation 
clause simply because they have consid- 
ered any factual matters going beyond 
those of record, To resort to the meta- 
phor that the moment a juror passes a 

fraction of an inch beyond the record 

evidence, he becomes ‘an unsworn wit- 

ness” is to ignore centuries of history 

and assume an answer rather than to 
provide the basis for one. 

[3] Although accurate knowledge of 

what goes on in the jury room is unhap- 
pily limited, see Kalven and Zeisel, The 

American Jury vi-vii (1966), we suspect 

there are many cases where jurors make 

statements concerning the general cred- 

ibility or incredibility of the police, the 

need of backing them up even when 

there is reasonable doubt of guilt or put- 

3. In saying this we assume the jurors made truthful answers to questions on the voir dire. 

435 F.2¢—52 
* 

  

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435 FEDERAL REPORTER, 2d SERIES 

ting brakes upon them even when there 
is none, the desirability of overcoming 

reasonable doubt because of the repug- 

nance of particular crimes or of yielding 
to less than reasonable doubt because of 

their insignificance, and concerning oth- 

er matters that would invalidate a judg- 

ment if uttered by a judge, see id. at 

131-824 Yet this is the very stuff of 

the jury system, and we have recog- 
nized, in a not unrelated context, that 

the standards for judges and juries are 

not the same, United States v. Maybury, 

274 F.2d 899, 902-903 (2 Cir. 1960). 

The _touchsione.of decision in a case 
such as we have here is thus not the 
‘mere fact of infiltration of some mole- 
cules of extra-record matter, with the 
supposed consequences that the infiltra- 

tor becomes a “witness” and the con- 

frontation clause automatically applies, 
but the nature of what has been infil- 
trated and the probability of prejudice. 
See, e. g., Rideau v. Louisiana, supra, 

373 U.S. at 727, 83 S.Ct. 1417; Estes v. 

Texas, 381 U.S. 532, 542-543, 85 S.Ct. 

1628, 14 L.Ed.2d 543 (1965); Sheppard 

v. Maxwell, 384 U.S. 333, 351-352, 86 S. 
Ct. 1507, 16 L.Ed.2d 600 (1966); United 

States v. Crosby, 294 F.2d 928, 950 (2 
Cir. 1961), cert. denied sub nom. Mit- 

telman v. United States, 368 U.S. 984, 82 

S.Ct. 599, 7 L.Ed.2d 523 (1962). 

[4] On the basis of Judge Port's find- 

ings, we think that in this case there was 

“such™a probability that prejudice will 
| result that it [the verdict] is deemed in- 

4. A few instances are reported in Broeder, 

The Impact of the Vicinage Require- 

ments: An Empirical Look, 45 Nebr.L. 

Rev. 99, 106-09 (1966), and in Miller v. 

United States, 403 F.2d 77, 8 n. 12 (2 

Cir. 1968). 

While the rule in McKinney was argu- 

ably established under the court's super- 

visory powers rather than as a matter of 

due process, neither the opinion nor the 

authorities there cited indicate that any 

such distinction was intended and we do 

not believe it properly could have been. 

We have slightly modified the excerpt 

quoted in the text, so as to eliminate any 

suggestion that jurors become ‘“wit- 

nesses,” with consequent automatic en- 

tailment of the confrontation clause, 

herently.lacking. in.due process.” Estes | 

v. Texas, supra, 381 U.S. at 542-543, 85 

S.Ct. at 1633. To be sure, there is no | 
“litmus paper test” for making such a H 

determination. But a good definition of 

the right line has recently been drawn 

by Judge Goldberg in United States v. 

McKinney, 429 F.2d 1019, 1022-1023 (5 
Cir. 1970): 

All must recognize, of course, that a 

complete sanitizing of the jury room 
is impossible. We cannot expunge 

from jury deliberations the subjective 

opinions of jurors, their additudinal 
expositions, or their philosophies. 
These involve the very human ele- 

ments that constitute one of the 

strengths of our jury system, and we 

cannot and should not excommunicate 
them from jury deliberations. Never- 

theless, while the jury may leaven its 

deliberations with its wisdom and ex- 
perience, in doing so it must not bring 

extra facts into the jury room. In ev- 

ery criminal case we must endeavor to 
see that jurors do not [consider] in 

the confines of the jury room 

¥* * * gpecific facts about the spe- 

cific defendant then on trial. * * * 

To the greatest extent possible all fac- 

tual [material] must pass through the 

judicial sieve, where the fundamental 

guarantees of procedural law protect 

the rights of those accused of crime.’ 

Owen’s case falls on the impermissible 
side of this by no means bright line, al- 

whenever a juror voices any extra-record 

facts. Indeed the McKinney court was 

careful to point out that the inquiry of 

the jurors on the remand was to be limited 

to the factual issue whether a discussion 

of facts outside the record did take place, 

but that the “trial court itself must decide 

the question of prejudice on the basis of 

an independent evaluation of all the eir- 

cumstances of the case.” 429 F.2d at 

1030. In short, the inquiry is not wheth- 

er the jurors “became witnesses” in the 

sense that they discussed any matters 

not of record but whether they discussed 

specific extra-record facts relating to the 

defendant, and if they did, whether there 

was a significant possibility that the 

defendant was prejudiced thereby.   

  

 



process.” Estes 
at 542-543, 85 

re, there is no 
making such a 

od definition of 
tly been drawn 

nited States v, 

P, 1022-1023 (5 

bf course, that a 

the jury room 

annot expunge 

s the subjective - 
eir additudinal 

r philosophies. 
ry human ele- 

e one of the 

system, and we 

excommunicate 

rations. Never- 

may leaven its 

wisdom and ex- 

must not bring 
ry room. In ev- 

ust endeavor to 

bt [consider] in 

e jury room 

s about the spe- 

trig %. 

possible all fac- 

hass through the 

the fundamental 

ral law protect 

cused of crime? 

be impermissible 
5 bright line, al- 

hny extra-record 

nney court was 

the inquiry of 

‘as to be limited 

her a discussion 

1 did take place, 

tself must decide 

on the basis of 

1 of all the cir- 

429 F.24 at 

ry is not wheth- 

itnesses” in the 

d any matters 

r they discussed 

: relating to the 

d, whether there 

ibility that the 

| thereby. 

a 
td
 

  

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UNITED STATES EX REL. OWEN v. McMANN 819 
Cite as 435 F.2d 813 (1970) 

though perhaps not by much. On the 

basis of the judge's findings, the jurors’ 

statements went beyond OSWen's being 

something of a ne’er-do-well; they in- 

cluded allegations of at least two specif- 

ic incidents Which had Yor been amd 
“probably ‘could not have been received in 

- evidence, and which Owen had had no 

opportunity to refute. 

[5] We thus reach the second assert- 
ed basis of distinction from the state- 
ments by a hypothetical non-juror with 

which we began, namely, that the evi- 

dence came from.the jurors-themselues. 

The State could not seriously contend 

{ that even if Owen were denied due proc- 

ess by virtue of the jury’s consideration 

of prejudicial extra-record facts, New 

York law may independently foreclose 
him from challenging his conviction on 

federal constitutional grounds, cf. Henry 

v. Mississippi, 379 U.S. 443, 85 S.Ct. 

564, 13 L.Ed.2d 408 (1965), and we do 
not understand it to be making such a 
contention. Rather, the State argues 

that we should be mindrul of the compel- 
ling public policy considerations, empha- 

Sized by the Supreme Court, which un- 
derlie the general ure Hgainst jurors’ 
impeachment of their own duly rendered 

verdict: 

[L]et it once be established that ver- 

dicts solemnly made and publicly re- 

turned into court can be attacked and 

set aside on the testimony of those 
who took part in their publication and 

all verdicts could be, and many would 
be, followed by an inquiry in the hope 

of discovering something which might 

invalidate the finding. Jurors would 

be harassed * * * in an effort to 

secure from them evidence of facts 

which might establish misconduct suf- 

ficient to set aside a verdict. If evi- 

dence thus secured could be thus used, 

the result would be to make what was 
intended to be a private deliberation, 

the constant subject of public investi- 

. Although we believe this to be the proper 

rule, see United States v. Crosby, supra, 
204 F.2d at 949-950, okOualQleilldo 
SStimate its (difficulties of _application. 
— " Ea Es 

gation; to the destruction of all 

frankness and freedom of discussion 
and conference. 

McDonald v. Pless, 238 U.S. 264, 267- 
268, 35 S.Ct. 783, 784, 59 L.Ed 1300 

1915) [Since the sole proof of preju- 
{dice In the instant case comes from the 

post-trial interrogation of the jurors | 

| with respect to what transpired during } 
their deliberations JENA SINCE New. "YOrK 

evigence law, Tollowing the famous deci- 
sion of Lord Mansfield, Vaise v. Delavel, 

1 TR. 11 (KB. 1785), has allegedly em- 
braced this policy by clamping a tight 
seal on jurors revealing what they 

heard in the jury room, Dana Vv. Tucker, 

4 Johns. R., N.Y. 487, 488 (1809); 
Clum v. Smith, 5 Hill, N.Y., 560, 561 
(1843); Williams v. Montgomery, 60 N. 

Y. 648 (1875), we are urged to refrain 

from carving an exception to a rule 

whieh, 1t IS argued, represents a firmly 

imbedded policy of both New York State 
and federal courts. 

While we have taken note of this poli- 

cy, Miller v. United States, 403 F.2d 77, 

82 (2 Cir. 1968), we have also _recog- 

nized, United States Vv. Crosby, supra, 

23TF.2d at 949-950, following the Su- 
preme Court in Mattox v. United States, 

146 U.S. 140, 149, 13 S.Ct. 50, 36 L.Ed. 

917 (1892), that the prohibition, is not 
an absolute. Indeed, as 1 Thdicated above, 

*Wwe—=Thould have thought that the New 

York State evidence rule, so far as here 

relevant, had been eliminated by the sec- 

ond decision in People v. DeLucia, supra, 

20: N.Y.24 275, 282 N.Y.S.24 526, 229 

N.E.2d 211. We would read Judge 

Keating's opinion as in effect adopting 

for New York the rule of Woodward v. 

Leavitt, 107 Mass. 453, 466 (1871), ap- 
proved in Mattox v. United States, su- 

pra, 146 U.S. at 149, 13 S.Ct. at 53, that 

“a juryman may testify to any facts 

bearing upon the question of any extra- 

neous influence, although not as to how 

far that influence operated upon his 

ming,.é with “extraneous” including 

( The _testimgny taken in this very case 

| drified, almost inevitably, from what the 

Be USv ; 

Grcby 

jurors S allegedly said to what its Tetiect Is 
\ had been. "lis 1s a further consideration 

—_   
   



820 

misconduct by the jurors themselves. 

The distinction asserted.by..the-State, 

That in DeLucia the jurors were testify- 
ing to misconduct outside the jury room, 

to wit, an unsuperVised viewing of the 

scene of the crime by some of them, 

whereas here the misconduct was inside, 

will not wash. In the first place, it 

makes no sense, see State v. Kociolek, 20 
N.J. 92, 100, 118 A.2d 812, 816 (1955) 
(Brennan, J.); Proposed Rules of Evi- 
dence for the United States District 

Courts and Magistrates, § 6-06(b) and 

p. ‘119 (1969). The State’s approving 

citation of United States v. Crosby, su- 
pra, 294 F.2d 949-950 (2 Cir.), indicates 

it would not assert that while a juryman 

could testify he had read a newspaper 

article with extra-record information 

outside the jury room, he could not re- 

veal his communication of it to other ju- 

rors within that sanctum. There is no 
rational distinction between the poten- 

tially prejudicial effect of extra-record 
information which a juror enunciates on 

the basis of the printed word and that 

which—tomes-from his brent” As we 

pointed out in United States v. Crosby, 

supra, 294 F.2d at 950, it is the * “nature 

of the matter and its probable effect on 

not “the 

_sourte- BT the [nformation or “the locus of 

its communication, which determines 

whether the defendant has been preju- 
diced. In the second place, the distinc- 

weighing in favor of a rather narrow 

definition of the kind of statement by a 

juror that will afford basis for invalidat- 

ing a verdict. 

. Wigmore states, 8 Evidence § 2346, p. 

678 (McNaughton rev. 1961) that “a jur- 

or is privileged not to have his communi- 

cations to a fellow juror [during retire- 

ment] disclosed upon the witness stand 

against his consent.” The language and 

most of the citations bear upon the case 

where the juror is proceeded against for 

contempt, perjury, or obstruction of jus- 

tice, as in Clark v. United States, 289 

U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993 (1933), 

although what Wigmore calls Mr. Justice 

onones ‘eloquent exposition of the poli- 

vy" of the supposed privilege in that case 

seems in fact to leave little but the name. 

However, when Wigmore comes to im- 

ERR a es Tr ae 

435 FEDERAL REPORTER, 2d SERIES 

tion would not explain DeLucia itself, 
since as appears from this court's opin. 

ion in United States ex rel. DeLucia v. 

McMann, 373 F.2d 759, 761 (2 Cir, 

1967), the jurors’ affidavits related to 
events inside as well as outside the jury 
room and the New York Court of Ap. 
peals drew no distinction on that score. 
However, if we were to take the inscry.- 

table silence of the state courts to mean 

what the Attorney General says it does, 

[we would be obliged to disregard a Etatey 
| evidentiary rule preventing what in this | 

| case is the only method of proving that | 
| the defendant had been denied due proe- | 

f ess by the jury’s consideration of preju- | 
f dicial extra-record facts. Cf. American 
| Ry. Exp. Co. v. Levee, 263 U.S. 19, 21, 
| 44 S.Ct. 11, 68 L.Ed. 140 (1923). We 

Jintimated as much in DeLucia, supra, 

(373 E.2d.at 762 [ We would-Teach the 
same result if the supposed New York 

rule barring a juror’s statement about 

improper statements within the jury 

room were viewed as being cast in terms 

of privilege.” 

[6] It remains only to consider the 
State’s claim that Owen waived his right 

to complain of the jurors’ misconduct by 

failing to object to the jury’s containing 

persons who might avail themselves of 

knowledge about him dehors the record. 

Here we suffer from the handicap that 

all efforts to find the transcript of the 

peachment of the verdict as such, while 

vigorously attacking Lord Mansfield’s 

rule as, among other things, tempting the 

parties “to seduce the bailiffs to tricky 

expedients and surreptitious eavesdrop- 

pings,” id. at § 2353, p. 699, he also says 

that the privilege would apply “if the jur- 

or to be informed against should claim 

it, id at 2352, p. 695. Hence, as a 

practical matter, impeachment for mis- 

conduct in the jury room could be had 

only when the juror guilty of misconduct 

confessed. We find it hard to see how 

when a verdict is attacked by juror A's 

testimony about what juror B said or did 

in the jury room, the government has 

standing to invoke whatever privilege jur- 

or B may possess; whether juror B is 

privileged to have juror A’s testimony ex- 

cluded in a proceeding against him is an- 

other matter.  



der the 

is right 

duct by 

taining 

plves of 

record. 

bap that 

of the 

while 
field's 

ng the 

tricky 

sdrop- 

0 Says 

he jur- 

claim 

, 8s a 

r mis- 

he had 

onduct 

ce how 

or A's 

or did 

nt has 

pge jur- 

br B is 

ony ex- 

is ap- 

SAROS v. RICHARDSON 821 
Cite as 435 F.2d 821 (1971) 

poir dire of the jurors have been unsuc- 

cessful. At the hearing in the district 

court, Mr. Tierney, Owen’s attorney, tes- 

tified that he asked the jurors whether 

they knew Owen or his family, whether _ 

they knew of any reason why in fairness 

to the defendant they could not sit, and 

whether anything they had discussed or 
read would affect or prejudice their de- 

liberations. All these questions elicited 

negative responses except in the case of 

Mr. Jeffrey, who said he knew Owen 

casually but that this would not affect 

his judgment. Mr. Jeffrey confirmed 

that Mr. Tierney had asked whether he 

knew Owen and that he acknowledged a 

casual acquaintance which, according to 

Jeffrey's post-trial testimony, was due 

to a single meeting at a testimonial din- 

ner. Mrs. Janak testified that Tierney 

had asked whether she knew Owen and 

she had replied in the negative, which 

was true, although perhaps not quite the 

whole truth since she did know some- 

thing about him. While counsel may 
have been at fault in not asking more 

directly whether the jurors knew any- 

thing concerning Owen that would affect 

their judgment, the State has not sus- 

tained its burden of showing that the 

defense consented that the jurors who 

were to try Owen could bring into the 

jury room specific factual material 

about him that was derived solely from 

their personal lives rather than the evi- 

dence adduced at trial. 

Affirmed. 

[e] KEY NUMBER SYSTEM 

Lawrence J. SAROS, Appellant, 

Vv. 

G. V. RICHARDSON, Warden, Appellee. 

No. 25935. 

United States Court of Appeals, 

Ninth Circuit. 

Jan. 8, 1971. 

Rehearing Denied Feb. 4, 1971. 

Accused, who was convicted of con- 

spiracy and mail theft, made a motion to 

vacate sentence. The United States Dis- 

trict Court for the Northern District of 

California, William T. Sweigert, J., ren- 

dered judgment, and the accused appeal- 

ed. The Court of Appeals held that per- 
missible sentence of three years imposed 
on accused was not vitiated because sen- 

tencing judge presided over trial of co- 

defendants and thus allegedly considered 
evidence presented at trial of codefend- 
ants in sentencing accused. 

Affirmed. 

1. Criminal Law €21208(1) 

Permissible sentence of three years 
imposed on accused convicted of conspir- 

acy and mail theft was not vitiated be- 
cause sentencing judge presided over 

trial of codefendants and thus allegedly 

considered evidence presented at trial of 

codefendants in sentencing accused. 18 

US.C.A. § 1708; 28 U.S.C.A. § 2255, 

2. Criminal Law €&1208(2) 

Sentencing judge can exercise a 

wide discretion in sources and types of 

evidence used to assist him in determin- 

ing kind and extent of punishment to be 

imposed within limits fixed by law. 

TS S— 

Lawrence J. Saros, in pro. per. 

James L. Browning, Jr., U. S. Atty, 

San Francisco, Cal., for appellee. 

Before HAMLEY, ELY, and 

WRIGHT, Circuit Judges. 

PER CURIAM: 

In 1969 Saros was charged, along with 

others, with the crimes of conspiracy and 

mail theft. 18 U.S.C. § 1708. He plead- 

ed guilty and was later sentenced to an 

imprisonment term of three years. His 

codefendants, who were tried and found 

guilty, received lesser sentences. Under 

28 U.S.C. § 2255, Saros challenged his 
sentence and appeals from the District 

Court’s decision, denying him relief. We 

affirm. 

[1,2] In his application to the Dis- 

trict Court, Saros contended that his   
  

 



Forsythe had been giv. 
ings at this point¥ ang 

peen arrested there is abgo- 
the record to support the 
e search was coerced in 
fact of custody alone has 
ugh to demonstrate 4 

or consent to search.” 
Watson, 423 U.S. 411, 424, 

, 46 L.Ed.2d 598 (1976); 
ates v. Hall, 565 F.2d 917, 
). We think the validity 
lows a fortiori from the 
all®® where the defend. 
ested but no Mirands 
given: 

bis no evidence in the 
intimidation, physical or 
se, or threats tending to 
nsent. The absence of g 
g prior to the search is 
assessing voluntariness. 
surrounding facts and 

e are convinced that the 
intary. 

ited States v. Villarreal, 
th Cir. 1978). 

re, that the first board. 
without articulable sus- 
ntary inquiry sanctioned 
tom and domestic legis- 

1 boarding and seizure 
robable cause, and the 

il was consensual. We 
ndment infirmity. 

» of the Evidence 

ants’ attack on the suf- 
ence is addressed to the 

t of the conspiracy 
S.C. § 963 (1976). We 

adduced at trial amply 
he defendants intended 

ana seized on board the 

2 to the testimony of 

Lhe defendants claimed to 

°d and thus incapable of 

‘[TIntoxication is a factor 

fact alone is not sufficient 

onsent.” 565 F.2d at 921. 

* 

  

DS ex rel. Heaan § Uc MHann . 

DURR v. COOK 
Cite as 589 F.2d 891 (1979) 

Chief Gaskill, Chitty stated that they, the 
defendants, had made a mistake in not 

waiting beyond the twelve-mile limit until 

the pickup boats had come. This statement, 

whether true or not, unequivocally demon- 

strates that it was the understood objective 

of the conspiracy to introduce the marijua- 

na into the United States and to sell it 

there. Postal stated to Lt. Beardsworth 

that the La Rosa was low on fuel, and 

Forsythe answered no to CPO Lewis's ques- 

tion whether the defendants were really 

going to Belize. These statements as well 

tend to prove, independently of the truth of 

the matters they assert, that the defendants 

intended to import the marijuana. One ad- 

ditional fact of relevance is a statement in 

the La Rosa's logbook, made the day be- 
fore she was sighted by the Cape York. 

The statement reads as follows: “32 hours 

and 95 miles to go.” Record, vol. 3, at 82. 

It was the testimony of Lt. Beardsworth, 

who had been qualified as an expert, that, 

given the time the entry was made and the 

position and course indicated, ninety-five 

miles would have put the La Rosa at Ameri- 

can Shoal, near Key West. Id. at 92. Re- 

viewing all these facts in the light most 

favorable to the Government, we find them 

more than sufficient to support the finding 

beyond a reasonable doubt that the defend- 

ants intended to import the marijuana. 

III. CONCLUSION 

We have carefully considered the defend- 

ants’ additional contentions of error and 

find them to be wholly without merit. For 

this reason and for the others stated above 

we affirm the defendants’ convictions. 

AFFIRMED. 

O & KEYNUMBER SYSTEM 

46. The logbook was admissible to prove the 

truth of the matters it asserts because, as we 

indicated above, it is a statement of a cocon- 

Catv 
Chester Terrell DURR, Plaintiff-Appellee, Ties art 

: Vv. 

George COOK, Sheriff, Sabine Parish, 

- Louisiana, Defendant-Appellant, 

“William J. Guste, Jr., Attorney General 
of Louisiana, Defendant. 

: No. 78-1195. 

United States Court of Appeals, 

Fifth Circuit. 

Feb. 15, 1979. 

Petitioner filed habeas corpus petition 

challenging his second-degree murder con- 

viction on ground that a member of his trial 

jury violated his confrontation and due 

process rights by participating in an out-of- 
court experiment. The United States Dis- 

trict Court for the Western District of Loui- 

siana, Shreveport, Benjamin C. Dawkins, 

Jr., Senior District Judge, 442 F.Supp. 487, 

granted habeas corpus relief, and state ap- 

pealed. The Court of Appeals, Thornberry, 

Circuit Judge, held that: (1) evidence was 

insufficient, on present state of record, to 

grant requested relief, and (2) district court 

on remand was to inquire into existence of 

prejudice. 

Reversed and remanded with di- 

rections. 

1. Habeas Corpus &=85.5(8) 

Testimony of automobile dealer that 

jury foreman at petitioner's second-degree 
murder trial looked at a pickup truck and 

made certain movements within truck was 

insufficient to support factual conclusions 

that jury foreman had “reenacted crime,” 

in alleged attempt to test petitioner’s self- 

defense explanation that victim had 

reached for a rifle in back of cab of truck 

while sitting in driver’s seat, and that fore- 

man had told other jury members about his 

results, and was thus insufficient to war- 

rant grant of habeas corpus relief. 

spirator made during and in furtherance of the 

conspiracy. See note 41 supra.   

¢ haowim tn PUA



M
5
 

S
E
 

NO 
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892 589 FEDERAL REPORTER, 2d SERIES 

~ 2. Criminal Law &=957(1) 

Evidentiary rule implicit in Louisiana 

statute rendering jurors incompetent to 

impeach jury verdict could not overcome 

accused's constitutional rights. LSA-R.S. 

15:470. 

3. Habeas Corpus ¢=85.3(1) 

Since petitioner's rights took preced- 

ence over Louisiana statute rendering jur- 

ors incompetent to impeach jury verdict, 

and since petitioner who filed habeas corpus 

petition alleging that jury foreman reen- 

acted crime in alleged attempt to test peti- 

tioner’s self-defense explanation at second- 

degree murder trial and then related his 

findings to other jury members, presented a 

substantial claim that his rights may have 

been violated, jury foreman had to be al- 

lowed to testify as to events in question. 

LSA-R.S. 15:470. 

4. Habeas Corpus 113(13) 

Testimony of automobile dealer that 

jury foreman at petitioner's second-degree 

murder trial looked at a pickup truck and 

made certain movements within truck, 

which conduct petitioner contended was in 

an alleged attempt to test his self-defense 

explanation, was insufficient to prove prej- 

udice and hence, on remand, district court 

would be directed to determine if actions 

called into question were such as to reason- 

ably result in possibility of prejudice. 

James Lynn Davis, Dist. Atty., Many, La., 

Abbott J. Reeves, Asst. Dist. Atty., Re- 

search and Appeals, Gretna, La., for de- 

fendant-appellant. 

Gahagan & Gahagan, Henry C. Gahagan, 

Jr., Fred S. Gahagan, Natchitoches, La., for 

plaintiff-appellee. 

Appeal from the United States District 

Court for the Western District of Louisiana. 

Before THORNBERRY, AINSWORTH 

and MORGAN, Circuit Judges. 

THORNBERRY, Circuit Judge: 

[1] This is a habeas corpus case in which 

the petitioner, Chester Terrell Durr, chal- 

lenges his murder conviction on the ground 

that a member of his trial jury violated his 
confrontation and due process rights by 

participating in an out of court experiment. 

The Louisiana Supreme Court rejected 

Durr’s arguments by a closely divided court, 

State v. Durr, 343 So.2d 1004 (La.1977), but 

the United States District Court for the 

Western District of Louisiana granted Durr 

habeas corpus relief. The state has taken 

an appeal from this adverse ruling and be- 

cause we hold that the evidence is insuffi- 

cient, on the present state of the record, to 

grant Durr’s requested relief, and that the 

district court failed to inquire into the ex- 

istence of prejudice, we reverse and remand 
for further proceedings. 

Durr was tried for the second degree 

murder of Sammie Mitchell and he fully 

admits shooting Mitchell, but he argues 

that the shooting was in self-defense. A 
brief review of the facts reveals that Mitch- 

ell was sitting in the driver’s seat of a 1973 

Ford pickup truck that was parked on a 

secluded dirt road. In the cab of the truck 

with Mitchell were Durr’'s wife, another 

woman and a child. According to Durr, he 

went to speak to the passengers of the 

truck, but shot Mitchell when “Mitchell 

simultaneously reached for a rifle which 

was hanging on a gun rack in the back of 

the cab, and began opening his door.” 

State v. Durr, 343 So.2d at 1005. 

After the jury had found Durr guilty of 
murder, he offered a motion for new trial 

which “alleged that the jury foreman, James 

Cook, had improperly participated i in an out 

of court experiment. Durr alleged that 

Turing the pendency of the trial Cook went 

to a local Ford dealership and asked to look 

at a pickup truck. Once in the truck, Durr 

alleges that Cook made certain twisting 

movements in an apparent attempt to test 

Durr’s self-defense explanation. Durr fur- 

ther alleges that Cook returned to the jury 

and reported the findings of his experiment. 

At the hearing on the motion for new 

trial, the owner of the automobile dealer- 

ship testified that Cook had looked at a 

pickup truck and had made certain move- 

ments within the truck. Cook, however,  



ion on the ground 
I jury violated his 

process rights by 

court experiment. 
Court rejected 

Rely divided court, 

004 (La.1977), but 

ct Court for the 

ana granted Dury 
P state has taken 

se ruling and be. 

idence is insuffj- 

of the record, to 
lief, and that the 

uire into the ex. 

rerse and remand 

second degree 
ell and he fully 

but he argues 

self-defense. A 

veals that Mitch- 

's seat of a 1973 

ras parked on ga 

cab of the truck 

s wife, another 

ding to Durr, he 

ssengers of the 

when “Mitchell 

a rifle which 

in the back of 

ing his door.” 

1005. 

Durr guilty of 
bn for new trial 

foreman, James 

pated in an out 

alleged that 

trial Cook went 

hd asked to look 

the truck, Durr 

ertain twisting 

pttempt to test 

ion. Durr fur- 

ned to the jury 

his experiment. 

hotion for new 

bmobile dealer- 

d looked at a 

certain move- 

ook, however, 

DURR v. COOK 893 
Cite as 589 F.2d 891 (1979) 

was not allowed to testify because the trial 
3 made him 

inespeTent to impeach his own verdict. 

The Louisiana Supreme Court affirmed the 

trial judge, State v. Durr, supra. 

In the present habeas corpus proceeding, 

the district court held that the testimony of 

the automobile dealer was sufficient to 

show that the foreman “had reenacted the 

crime, and told the other jury members 

about his results.” Durr v. Cook, 442 

F.Supp. 489. This, the court held, violated 
Durr’s sixth amendment rights because the 
foreman’s conduct amounted “to taking the 
truck into the jury room and having it 
available in deliberations by that body be- 

fore reaching its verdict of guilty.” Id. 

While any reasonable person would be 

justifiedly suspicious of the foreman’s be- 
havior, we hold that the testimony of the 

auto dealer is insufficient to support the 

district court’s factual conclusions. We 

have only a reasonable inference that the 

foreman participated in an out of court 

experiment and have no evidence that the 

foreman returned to the jury room with his 
conclusions. As stated by the dissenting 

opinion in the Louisiana Supreme Court: 

The writer tends to think that the testi- 

mony of the dealer alone was sufficient 

to establish prohibited conduct on the 

part of the jury foreman, which should 

require a new trial. However, this Is 

certainly open to question, because the 

physical acts of the foreman testified to 

by the automobile dealer could just as 

well represent conduct unrelated to the 
case. 

State v. Durr, 343 So.2d at 1008 (emphasis 

added). 

I. La.R.S. 15:470 provides: 

No juror, grand or petit, is competent to 

testify to his own or his fellows’ misconduct, 

or to give evidence to explain, qualify or 
impeach any indictment or any verdict found 

by the body of which he is or was a member; 

but every juror, grand or petit, is a compe- 

tent witness to rebut any attack upon the 

regularity of the conduct or of the findings of 

the body of which he is or was a member. 

In support of this view, Judge Friendly wrote: 

While Parker v. Gladden, [385 U.S. 363, 87 

S.Ct. 468, 17 L.Ed.2d 420 (1966)], consistent- 

+ 

[2,3] Since the evidence adduced is in- 

sufficient to show a violation of Durr’s con- 

stitutional rights, we further agree with the 

dissent in the Louisiana Supreme Court 

that the “testimony of the foreman was 

really crucial to positively establish conduct 

which denied defendant his constitutional 

rights.” Id. We are faced at this juncture 

with the prohibition of La.R.S. 15:470 which 

represents a strong and legitimate public 

policy of the state of Louisiana. Our task is 
aided, however, by the forthright admission 

by the state that the evidentiary rule im- 
plicit in_La.R.S. 15:470 cannot overcome 

Durr’s constitutional rights. Chambers v. 

Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 
L.Ed.2d 297 (1973); Stimack v. Texas, 548 

F.2d 588 (5 Cir. 1977). Since we believe 

that Durr’s constitutional rights take prece- 

dent over 15:470, and we think that Durr 

has presented a substantial claim that his 

"rights may have been violated, we think the 

foreman must be allowed to testify as to 

“the events in question. Since the state trial 

court did not take the foreman’s testimony, 

we believe that the state court record is 

insufficient under 28 U.S.C. § 2254(d)2) 

and the United States District Court should 

take his testimony. 

The district court cast its decision in sixth 

amendment confrontation terms because 

the court reasoned that the foreman, in 

effect, became a witness against the ac- 

cused and the defendant had no opportunity 

to cross-examine the foreman. In a similar 

case Judge Friendly suggested that a due 

process analysis was more appropriate. 

United States ex rel. Owen v. McMann, 435 

F.2d 813, 817 (2 Cir. 1970), cert. denied 402 

U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646.2 

ly with the precedents it cites, demonstrates 

the Court’s continuing concern with protect- 

ing a criminal defendant from the possibility 

of a verdict based on a consideration of facts 

not properly before the jury, it is thus not 

automatically determinative when the extra- 

record remarks are by jurors themselves. 

The invocation of the confrontation clause in 

Parker was entirely appropriate to shield the 

defendant from comments to the jury by one 

whose statements, if admissible at all, could 

have properly been received only from the 

witness stand, subject to the procedural safe- 

- 

  

  
 



  

  

894 

In our own cases decided under our su-| 
pervisory power, we have often referred to | 
both modes of analysis. For example, | 
recently in United States v. Winkle, 587 | 
F.2d 705, 714 (5 Cir. 1979), we stated that | 
“ ‘prejudicial factual intrusion’ denies a de- 
fendant his rights to trial by an impartial | 
jury and to challenge the facts adverse to | 
him that are made known to the jury.” See 
also United States v. McKinney, 429 F.2d 
1019, 1023 (5 Cir. 1970), reversed on hear- 

589 FEDERAL REPORTER 2d SERIES 
ma AT, \ 

of Sreludic But, on the otis? Feod we 

think that the district court should make 
sufficient inquiries to determine the true 

facts. It is not beyond the range of possi- 
| bility that the foreman was not conducting 
| an experiment, it is also not beyond the 

| range of conjecture that the behavior in 
| question occurred after the jury had ren- 
| dered its verdict. Furthermore, we do not 

| know what the foreman learned from his | 
| experiment nor if he returned to the jury J   ing, 5 Cir., 434 F.2d 831, cert. denied, 401 | 

U.S. 922, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971). 
(“In every criminal case we must endeavor 
to see that Jurors Jo not testify in the 
confines of the jury room concerning specif- 
ie=farts=gBouT the Specie defendant then 
on tral”); United States v. Howard, 506 
F.2d 865, 866 (5 Cir. 1975), ([Clourts have 
been continually sensitive to the jeopardy to 
a criminal defendant's Sixth Amendment 
rights posed by any jury exposure to facts 
collected outside of trial.”). 

While the cases have used two constitu- 
tional underpinnings, the cases are univer- 
sal in requiring that the reasonable possibil- 
ity of prejudice exists before granting the 
requested relief? United States ex rel 
Owen v. McMann, 435 F.2d at 818; United 
States v. Winkle, at 714; United States v. 
McKinney, 429 F.2d at 1025, reversed on 
rehearing, 434 F.2d at 833; United States v. 
Howard, 506 F.2d at 869. 

[4] Inthe present case the district court 
apparently assumed that the testimony of 
the—auto~dealer_surficiently proved preju- 
dice We disagree. On remand, the district 
court 1s to determine if the actions called 
into question were such as to reasonably 
result in the possibility of prejudice. It is 
not difficult for us to imagine that the 
foreman’s conduct resulted in the possibility 

guards which the Sixth Amendment requires. 

But, so far as we know, the Court has never 

suggested that jurors, whose duty it is to 

consider and discuss the factual material 

properly before them, become ‘“‘unsworn wit- 

nesses’ within the scope of the confrontation 

clause simply because they have considered 

any factual matters going beyond those of 

record. To resort to the metaphor that the 

moment a juror passes a fraction of an inch 

beyond the record evidence, he becomes ‘an 

unsworn witness’ is to ignore centuries of 

* 

With his knowledge. 4 

All of these Inquiries were left unfn- 

swered by the district court. We hold that 
on remand in these proceedings, the district 
court should fully explore the facts to de- 

termine if the possibility of prejudice exist- 

ed. 

REVERSED AND REMANDED with di- 
rections. 

Ww 
° £ KEYNUMBER SYSTEM 

T 

CLEMENTS WIRE & MANUFACTUR- 
ING COMPANY, INC, 

Plaintiff-Appellee, 

XY. 

NATIONAL LABOR RELATIONS 

BOARD, Defendant-Appellant. 

No. 78-1296. 

United States Court of Appeals, 

Fifth Circuit. 

Feb. 15, 1979. 

National Labor Relations Board appeal- 

ed from an order of the United States Dis- 

history and assume an answer rather than to 

provide the basis for one. 

3. A demonstration of outside influence on the 

jury will overcome the presumption of regulari- 

ty, the burden then shifts to the state to demon- 

strate that the influence was not prejudicial. 

United States v. Winkle, at 714; United States 

v. Howard, 506 F.2d at 869. 

4. Since the vote to convict was 10 to 2, it is not 

beyond reality to suggest that the foreman vot- 

ed to acquit. 

| 
| 

| 

J 

 



al) 
pK |\ yo Gr 

609 FEDERAL REPORTER, 2d SERIES 

failure to comply with the statute. We 

therefore find no basis for reversing the 

defendants’ convictions on this ground. 

AFFIRMED. 

debit, : 
3 % } roy © § KEYNUMBER SYSTEM 

Juror Sn b § 

§ ae 

on (+d 
V-— 

nfl Aad te fon 

aclu WW m 3: 

( fl LM Lo V. 

"Leroy STYNCHCOMBE, Sheriff, and 
~ State of Georgia, 

Respondents-Appellees. 

No. 79-1655. 

United States Court of Appeals, 

Fifth Circuit. 

Jan. 4, 1980. 

Rehearing and Rehearing En Banc 
Denied Feb. 14, 1980. 

Robert E. LLEWELLYN, 
Petitioner-Appellant, 
  

— 

  

Petitioner, who had been convicted by 

a state court jury and sentenced to life 

imprisonment, sought federal habeas corpus 

relief. The United States District Court for 

the Northern District of Georgia, Richard 

C. Freeman, J., denied relief, and appeal 

was taken. The Court of Appeals, Vance, 

Circuit Judge, held that: (1) although pres- 

ence of extrinsic material in jury room was 

error, it did not create any reasonable possi- 

bility of prejudice to petitioner; (2) evi- 

dence reasonably supported finding of peti- 

tioner’s participation in crimes beyond 

doubt; and (3) evidentiary hearing on jury 

prejudice issue was not necessary. 

Affirmed. 

1. Criminal Law ¢=1174(6) 

Although presence of extrinsic material 

in jury room, including witness list, written 

jury charges concerning conspiracy and cor- 

roborating circumstances and proposed 

charge concerning defendant's failure to 

testify, was error, it did not create any 

reasonable possibility of prejudice to de- 

fendant. 

2. Criminal Law &=1174(6) 

Where extrinsic material is mistakenly 

sent to jury room, defendant is entitled to 

new trial unless there is no reasonable pos- 

sibility that jury’s verdict was influenced by 

material that improperly came before it. 

3. Homicide &=234(1) 

In murder prosecution, evidence rea- 

sonably supported finding of defendant's 

participation in crimes beyond reasonable 

doubt. 

4. Criminal Law &=510 

Unlike federal law, Georgia law re- 

quires independent corroboration of an ac- 

complice’s testimony. Code Ga. § 38-121. 

5. Habeas Corpus &=85.4(1) 

Georgia rule requiring independent cor- 

roboration of an accomplice’s testimony is 

not controlling upon collateral review of a 

state court judgment by a federal court. 

Code Ga. § 38-121. 

6. Criminal Law &£957(1) 
Postverdict inquiries into the existence 

of impermissible extraneous influences on 

jury’s deliberations are allowed under prop- 

er circumstances; however, inquiries that 

seek to probe the mental processes of jurors 

are impermissible. 

7. Habeas Corpus &=9%0 

Although evidentiary hearing in feder- 

al habeas corpus proceeding would have 

been permissible to investigate existence of 

extrinsic materials before state court jury, 

it was not necessary to hold evidentiary 

hearing on jury prejudice. 

Frank J. Petrella, Atlanta, Ga., for peti- 

tioner-appellant. 

Lewis R. Slaton, District Atty., H. Allen 

Moye, Asst. Dist. Atty. Atlanta, Ga., for 

respondents-appellees. 

Appeal from the United States District 

Court for the Northern District of Georgia. 

Before TUTTLE, VANCE and KRAV- 

ITCH, Circuit Judges.  



1 is mistakenly 

t is entitled to 

reasonable pos- 

ks influenced by 

ame before it. 

evidence rea- 

of defendant's 

bnd reasonable 

borgia law re- 

ation of an ac- 

Ga. § 38-121. 

dependent cor- 

's testimony is 

al review of a 

federal court. 

b the existence 

influences on 

ed under prop- 

inquiries that 

esses of jurors 

ring in feder- 
& would have 

e existence of 

hte court jury, 

Id evidentiary 

Ga., for peti- 

Ltty., H. Allen 

anta, Ga., for 

Btates District 

ct of Georgia. 

and KRAV- 

LLEWELLYN v. STYNCHCOMBE 195 
R— Cite as 608 F.2d 194 (1980) 

[ VANCE, Circuit Judge: 
Robert E. Llewellyn was convicted by a 

state court jury of murder in three counts. 

The Georgia Supreme Court affirmed the 

conviction and life sentence, and the federal 

district court denied habeas corpus. We 
affirm. 

The indictment charged that Llewellyn 

hired an accomplice, Robert Larry Schneid- 

er, Iirst to burn out and later to Kill Peter 

Winokur, the owner of a competing night- 
club. Schneider twice failed to burn Wino- 
kur’s establishment, and the jury heard evi- 
dence that Llewellyn ordered these arson 

incidents. Schneider and two accomplices 

then tied up Winokur and two young men 
whom they found In his home, took them to 

a rural area and shot each in the head. 

On the third “day of jury deliberations 

court officials discovered that a witness list, | 

written jury charges concerning conspiracy 

and corroborating circumstances, and a pro- 

posed charge concerning a defendant's fail- 

ure to testify, had been inadvertently taken 

into the jury room.[ Llewellyn’s counsel 

first1earned of this event after the verdict 

and after sentencing. The court denied his 
request for a hearing on any prejudicial 

influence of the charge sheets and list. 

Two jurors gave affidavits that the jury 

CoTSTaere these Materials, while the fore- 

man submitted an affidavit that the jury 
was not influenced by them. 

[1] Llewellyn argues that the presence 

in the jury room of parts of the written 

charge and the court's failure to apprise his 

Zounsel of the mistake, deprived him of his 

constitutional rights to Tonlrontation, as- 

sistance of counsel, and due process. The 

presence of this extrinsic material in the 

jury room was error, Estes v. United States, 

335 F.2d 609, 618 (5th Cir. 1964), but it did 

not create “any reasonable possibility of 
prejudice” to Llewellyn. Id. 

In determining whether a reasonable pos- 

sibility of prejudice inheres in the materials 

present in the jury room, we examine their 

1. This opinion in McKinney, upon rehearing, 

became a special toncurrence rather than a 

dissent. 434 F.2d 831, 833 (5th Cir. 1970), cert. 

denied, 401 U.S. 922, 91 S.Ct. 910, 27 L.Ed.2d 

* 

nature and the manner in which they were 

conveyed. Rogers v. United States, 422 

U.S. 35, 40, 95 S.Ct. 2091, 45 L.Ed.2d 1 

(1975). The charge on failure to testify had 

been proposed” bY Llewellyn's own counsel 

and so was not prejudicial. The InStre- 

tions on COMSPIracy and corroborating cir- 

cumstances were the identical charges al- 

ready given in open court with full confron- 

tation and counsel rights. This was not a 

secret communication betwéen judge and 
jury or a private recharge of the jury. Cf. 

id. (secret communication of new material 

if prejudicial is reversible error). These 

instructions were correct statements of the 

law to which no objection had been made. 

It is therefore apparent that the error was 

not prejudicial and that “no substantial 

right was infringed.” Outlaw v. United 

States, 81 F.2d 805, 808-09 (5th Cir. 1936). 

See also Estes v. United States, 335 F.2d at 
618. 

[2] Llewellyn also contends that the 

presence of the witness list, which showed 

the offense as “Murder, Arson” and gave 

three indictment numbers, and the court's 

failure to notify his counsel of that, denied 

his rights to confrontation, counsel, and due 

process. As stated in Farese v. United 

States, 428 F.2d 178 (5th Cir. 1970), a de- 

fendant is entitled to a new trial unless 

there is no reasonable possibility TRatr the 

jury's verdict was influenced by the materi- 

al that improperly came before it. Id. at 

180. See also Paz v. United States, 462 

F.2d 740, 745 (5th Cir. 1972), cert. denied, 

414 U.S. 820, 94 S.Ct. 47, 38 L.Ed.2d 52 

(1973). In United States v. McKinney, 429 

F.2d 1019 (5th Cir. 1970), a concurring opin- 

ion suggested several factors that were im- 

portant in such an inquiry, including the 

content of the alleged extrinsic materials, 

the manner in which the extrinsic materials 

were brought to the judge's attention, and 

the weight of other evidence against the 

accused. Id. at 1031-33 (Godbold, J., con- 

curring).! The witness list’s reference to 

825 (1971). See also United States v. Howard, 

506 F.2d 865, 869 (5th Cir. 1975) (In determin- 

ing the reasonable possibility of prejudice from 

extrinsic materials, “prejudice will be assumed   
 



A
 
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w
a
 

196 609 FEDERAL REPORTER, 2d SERIES 

“Arson” was simply cumulative, adding 

nothing to the evidence properly introduced 

at trial. Martin v. Estelle, 541 F.2d 1147, 

1148 (5th Cir. 1976). Relevant references 

began in the prosecutor's opening state- 

ment that he would show that “Mother's 

[Winokur’s nightclub] was damaged by 

fire’ that “in the opinion of the firemen 

was arson’; that “a second fire occurred at 

Mother's Bar” that “was also an arson”; 
and that “Schneider contracted with Robert 

Llewellyn to burn Mother’s Bar on those 

two occasions,” and these references contin- 

ued through much of the testimony. The 

list’s identification of arson in a blank after 

“Offense” was harmless error beyond a rea- 

sonable doubt. Martin v. Estelle, 541 F.2d 

cert. denied, 439 U.S. 850, 99 S.Ct. 154, 58 

L.Ed.2d 153 (1978). In view of the legal 

standard set forth above, this extrinsic ma- 

terial did not pose a “reasonable possibility 

of prejudice” to the jury's verdict. Estes v. 

United States, 335 F.2d at 618. 

[3-5] Petitioner suggests that a failure | 
to prove his identity as a coconspirator de- 

prived him of due process. We conclude, 

however, that the evidence reasonably sup- 

ported a finding of Llewellyn’s participa- 

tion beyond a reasonable doubt. See Jack- 

son v. Virginia, — U.S. ——, 99 S.Ct. 

2781, 2792, 61 L.Ed.2d 560 (1979). Unlike 

federal law, Georgia law requires indepen- 

dent corroboration of an accomplice’s testi- 

mony. Ga.Code § 38-121. This Georgia 

rule is not controlling upon collateral re- 

in the form of a rebuttable presumption, and 

the burden is on the Government to demon- 

strate the harmlessness of any breach to the 

defendant.”) 
[PT— 

The second gnd.fourth circuits haxve.codacsed 

the step of a remand to the trial court for a 

Hearing Or Whether prejudicial matters not _in 

€VIgEnce Were—arraty—arstussed in the. Tury 
room. Downey V.-PEYION, 351 F.2d 236, 239 

(4th Cir. 1971); see United States ex rel. Owen 

view by a federal court. Anderson v. Mag- 

gio, 555 F.2d 447, 452 (5th Cir. 1977). The 

Georgia court concluded that there was suf- 

ficient corroboration to meet the more 

stringent state requirement. Llewellyn v. 

State, 241 Ga. 192, 243 S.E.2d 853 (1978). It 

is sufficient that the evidence clearly meets 

the federal standard. 

[6, 712 Llewellyn finally argues that the 
attire to order an evidentiary hearing on 

jury prejudice, in hight of two juror affida- 

Vits_to that effect, was reversible error. 

Post-verdict inquiries into the existence of 

impermissible extraneous influences on a 

jury's deliberations are allowed under ap- 

; | propriate circumstances, United States v. 
at 1148. Such disclosures are not compara- 
ble to the disclosure of prior convictions. E. | : . 

man may testify to any facts bearing u 
g., Michelson v. United States, 335 U.S. 469, | : 2 a £_1poR, 

475-76, 69 S.Ct. 218, 93 L.Ed. 168 (1948). | 

The jury had been instructed that an indict- iRrt mficence operated upon his ming 

ment was not evidence. United States v. } , 
Haynes, 573 F.2d 236, 241.42 (5th Cir) | Mattox v. United States, 146 U.S. 140, 149, 

oC = | 13 S.Ct. 50, 53, 36 L.Ed. 917 (1892) (empha- 

Howard, 506 F.2d at 869, so that a “ ‘jury- | 

  

the question of the existence of any extra- 

neous influence, although not as to how For. 
rn 

  

  

| sis added). See also Remmer v. United 

| States, 347 U.S. 227 at. 229 _24.S.C4-450, 98 

\ L.Ed. 654 (1954).) Jnquiries that seek to 

[probe the mental processes of jurors, how- 
| ever, are impermissible. United States v. 
| Gipson, 553 F.2d 453, 457 (5th Cir. 1977). See 

also Ga.C. § 110-109; Watkins v. State, 237 

Ga. 678, 229 S.E.2d 465, 470 (1976). (Theex= 

ISting affidavits amply demonstrate the pres- 

ence and nature of extrinsic materials. Al- 

though an evidentiary hearing would have 

been permissible to investigate further-the 

| 
| | 
| 

existence ol extrinsic materials, it was not 

necessary. We have already concluded that 

such material could not have influenced the 

jury’s verdict. 

AFFIRMED. 

v. McMann, 435 F.2d 813 (2nd Cir. 1970), cert. 

denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 

646 (1971). This circuit has-secommended sim- 
ilar r procedures in in cases dealing with jury irreg- v 

ularities. E. g., Paz v. United States, 462 F.2d ~f 

at 746 (remanding “to conduct an evidentiary : 

hearing to determine whether there is or is not 

a reasonable possibility that the books affected 

the jury’s verdict,” and describing the factors 

to be considered).  



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654 FEDERAL REPORTER, 2d SERIES 

UNITED STATES of America, 
Plaintiff-Appellee, 

Vv. 

Ronald J. PIMENTEL, 

Defendant-Appellant. 

No. 80-1350. 

United States Court of Appeals, 

Ninth Circuit. 

Argued and Submitted March 10, 1981. 

Rehearing and Rehearing En Banc 

Denied Aug. 28, 1981. 

Decided June 15, 1981. 

Defendant was convicted in the United 

States District Court for the Northern Dis- 

trict of California, Edmund L. Palmieri, 

District Judge, on two counts of wiretap- 

ping, and he appealed. The Court of Ap- 

peals, Wallace, Circuit Judge, held that: (1) 

application of local rule did not deprive 

defendant of peremptory jury challenges to 

which he was entitled under federal rules; 

(2) trial judge's voir dire did not deprive 

defendant of the fair trial; (3) allegedly 

improper statements made by prosecutor 

during closing argument and prosecutor's 

changing of order of trials on separate 

counts of original indictment did not consti- 

tute prosecutorial misconduct; and (4) evi- 

dence was sufficient to sustain defendant's 

conviction; and thus trial judge did n 

abuse his discretion in failing to grant new 

trial. 

Affirmed. 

1. Jury =136(4) 

Application to defendant of local rule 

in selecting jury did not deprive him of 

three of ten peremptory juror challenges to 

which he was entitled under federal rule 

because, under the local rule, defendant had 

opportunity to challenge every juror put in 

the box subsequent to his passing of per- 

emptory challenges. Fed.Rules Cr.Proc. 

Rule 24(b), 18 U.S.C.A.; U.S.Dist.Ct.Rules 

N.D.Cal., Criminal Rule 326-1. 

2. Criminal Law &=1152(2) 

In reviewing conduct of voir dire by 

district judge, Court of Appeals will not 

reverse unless procedures used or questions 
asked were so unreasonable as to constitute 

an abuse of discretion. Fed.Rules Cr.Proc¢ 

Rules 24(a), 33, 18 U.S.C.A.; U.S.Dist.Ct 

Rules N.D.Cal., Criminal Rule 326-1. 

3. Jury &=131(8) 

Trial judge's conducting of voir dire ip, 
wiretapping prosecution was not an abuse 

of discretion even though he allegedly 

failed to ask some of defendants proposed 
questions which were designed to probe jur. 

ors’ attitudes on issue of wiretapping. Fed. 

Rules Cr.Proc. Rules 24(a), 33, 18 U.S.C.A.: 

U.S.Dist.Ct.Rules N.D.Cal., Criminal Rule 

326-1. 

4. Criminal Law =957(1) 

On defendant's motion for new trial 

after he was convicted of wiretapping, 
which was made on allegation that trial 

court's voir dire failed to reveal that some 
jurors believed that all wiretapping was 

illegal, district judge properly refused to 

consider affidavit by defense counsel re- 
counting his conversations with some of the 
jurors and a declaration filed by one of the 

jurors personally. : 

cerning facts bearing on extraneous influ- 

. ences on deliberation, in sense of overt gets 

of jury tampering. 

Comments of a prosecutor, to be im- 

proper, must be such that jury would natu- 

rally and necessarily take them to be com- 

ments on failure of the accused to testify. 

7. Criminal Law <==721(3) 

Prosecutor's statement in closing argu- 

ment that “you have a right to ask for that 

evidence * * *” was fairly interpreted by 

trial judge to mean that jury need not have 

considered arguments made by defense 

counsel that were not supported by evi- 

dence in the record and thus was not an 

improper suggestion to jury that defendant 

had some burden of production of evidence 

and that he had some duty to testify.   
 



  
    

542 

of a fair trial because the trial judge failed 

to explore adequately the possibility that 

the jurors had preconceived notions about 

the legality of wiretapping. Pimentel also 

contends that the district judge erred in 

refusing to grant Pimentel a new trial on 

the basis of affidavits submitted by jurors 

after the trial to the effect that some jurors 

did in fact have prejudicial attitudes con- 

cerning wiretapping. 

[2,3] In reviewing the conduct of voir 

dire by the district judge, we will not re- 

verse unless the procedures used or the 

questions asked were so unreasonable as to 

constitute an abuse of discretion. United 

States v. Rosales-Lopez, 617 F.2d 1349, 1353 

(9th Cir. 1980), affd, — U.S. 

S.Ct. 1629, 68 L.Ed.2d 22 (1981). The 
district judge conducted voir dire himself, 

pursuant to Rule 24(a) of the Federal Rules 

of Criminal Procedure and Local Rule 326.1. 

Pimentel complains that the district judge 

failed to ask some of Pimentel’s proposed 

questions, which were designed to probe the 

jurors’ attitudes on the issue of wiretap- 

ping. The district judge did, however, ask 

questions concerning wiretapping to the en- 

tire group of prospective jurors. He asked, 

“Have you any preconceived ideas or no- 

tions or feelings about the federal wiretap 

laws? ... Have you any preconceived no- 

tions about them or any prejudices one way 

or another?’ There was no response to 

these questions. Subsequently, as the jur- 

ors were put in the jury box, the district 

judge asked each of them whether they had 

any response to the questions already asked 

of the entire group, or whether they could 

render a verdict solely on the evidence 

presented at trial and the instructions of 

law given by the judge. None of the jurors 

indicated any problems. We conclude that 

the use of this procedure was not an abuse 

of discretion. United States v. Giese, 597 

F.2d 1170, 1182 (9th Cir.), cert. denied, 444 

U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 

(1979). 

Immediately prior to Pimentel’s sentenc- 

ing, Pimentel and Roper moved for a new 

trial, pursuant to Rule 33 of the Federal 

Rules of Criminal Procedure, alleging that 

654 FEDERAL REPORTER, 2d SERIES 

post-trial conversations with some of the 

jurors indicated that some jurors had mage 

up their minds about ut the guilt of the de. 
féndants before the court instructed the 

on the law. Pimentel asserts that this 

shows that some of the jurors believed thg, 

all wiretapping was illegal, and that they 

failed to consider Pimentel’ primary de 
fense, lack of intent. He argues that 4 

proper voir dire would have uncovereg 

these attitudes, permitting jurors to pe 

struck for cause or to be challenged per. 

emptorily. The evidence in support of 

these allegations is an affidavit by Roper's 

counsel recounting his conversations with 

some of the jurgrs and a declaration filed 

by one of the jurors personally. 

[4,5] The district judge properly refi 

ed to consider this offer. ( Testimony of & 

juror concerning the motives of individua 

jurors and conduct during deliberation is 

not admissible. Juror testimony is admissi. 

ble only concerning facts bearing on extrs. 

neous influences on the deliberation, in the 

sense of overt acts of jury tampering. Mat. 

tox v. United States, 146 U.S. 140, 148 45 | | 
13 S.Ct. 50, 52-53, 36 L.Ed. 917 (1892). |} 
Fed.R.Evid. 606(b). 

Iv 

Pimentel next complains of two different 

incidents of prosecutorial misconduct. He 

alleges that the Assistant United States 

Attorney who tried the case made improper 

statements during closing argument, and 

that the prosecutor improperly prejudiced 

Pimentel by changing the order of the trials 

on the separate counts of the original eight- 

count indictment. 

A. 

Pimentel points to several parts of the 

prosecutor's closing argument that he 

claims were improper, but only one of these 

claims is not frivolous. Pimentel contends 

that the prosecutor commented, in the re- 

buttal portion of his closing argument, or 

Pimentel’s failure to testify on his own be 

half, and implied that Pimentel had some 

burden of producing evidence. 

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+ 4 

ker rationale will be 
PStMOnY is unclegy 
ict that amount 10 on 
Court of Appeajs 

nl On Its Nonimpeach, 

particular serjeg of 
jant’s constitut; 
> right of the defend. 

18 

y as tO certain conde 
lanifestations. : 
ood or disregarded “5 
e’s Instructions,’ thee 

Rd 759 (2d Cir. 1967) fun: 
lecision had refused to coma 

s corpus application brogghs 

application 10 give New Yug 

after N.Y. Court of Appel & 
99 N.E. 2d 211 (1967) adm 

. 2d 526, 528, 229 NE % 

inimum Standards for 

ny or affidavit shall be 
to the attention of one or 

ndant’s constitutional nghe sie 

) (juror’s vacillations and sg 

(2d Cir.), cert. denied. 3%% 
r jurors’ testimony that they is 

gathered while jurors mz 

oor Sisters of St. Frances 

1967) (affidavits of jurors 
d have to pay; amount atts 

ant hospital; whether 1 

ed trial judge’s denial of new 

e méntal processes by which § 

1980) (prosecution for ope 

ecludes judicial inquiry mt 

bling scheme); United Stas 
bssibility that the jury mus 

es not warrant reversal a 
h Cir. 1977) (statement by § 

base did not prove her ignos 

ly event, juror may not if 

(Rel. 13-88: 

pO 

WITNESSES 1 606[04] 

the jury would be kept out indefinitely until agreement was 
30d 2 considered an election of the accused not to take the stand, 
1 oJ that recommending mercy would avoid the death penalty, was 

ame by weariness or unsound arguments of other jurors, or by a 
to return home. ie 7 

‘Because of the general provision in Rule 601 that all witnesses are 
stent except as otherwise provided, evidence of jury conduct is 
sible and a juror may testify to it except as prohibited by subdivi- 

 (b) of Rule 606. Rule'606(b) would[not fender a witness incompetent 
pestify to juror irregularities such as intoxication,?® exposure to 

= by testimony concerning his misconception of court’s instructions); Vizzini v. Ford 
. Co.. 72 F.R.D. 132, 136 (E.D. Pa. 1976) rev'd on other grounds, 569 F.2d 754 (3d 
ov (in wrongful death action where issues of liability and damages were bifurcated, 
oer received note from jury while it was deliberating on damages after having 

; verdict on liability that indicated that one juror refused to agree on damages 
pe had misunderstood consequences of answers he had given to interrogatories on 
phase of trial; court granted mistrial as to damages but refused to grant new trial 

a habit since “there 1s no competent evidence to indicate that the liability verdict was 
: ise,” statement referred to juror’s thoughts during deliberation and was in- 

under Rule 606(b); appellate court reserved decision on whether partial verdicts 
go mveect 10 Rule 606(b)). Walker v. United States, 298 F.2d 217 (9th Cir. 1962) (court 
Bw to consider affidavit by juror that the jurors had a misconception of the court’s 
_- mescuons on entrapment); United States v. Chereton, 309 F.2d 197 (6th Cir. 1962), cert. 

~ gees 372 U.S. 936, 83 S.Ct. 883, 9 L.Ed. 2d 767 (1963) (judge refused to permit jurors 
Sampesch verdicts by affidavits or testimony where four Jurors claimed that they thought 

= . were convicting defendant of a count which had been dismissed during trial rather 
& = four other counts). 

B Umated States v. Weiner, 578 F.2d 757 (9th Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 
We % LEd 2d 551 99 S.Ct. 568 (1978) (Rule 606(b) would bar testimony that juror had 
mms pairs with reservation); Castleberry v. NRM Corp., 470 F.2d 1113, 1116-1117 (10th 
€ 170) (aung proposed Rule 606(b)). 

® Laated States v. Grieco, 261 F.2d 414, 415-416 (2d Cir. 1958), cert. denied, 359 U.S. 
= ®5C 582, 3 L.Ed. 2d 572 (1959) (female juror wrote that she wanted to retract 

_. #mm tw verdict; she had wanted to hold out for acquittal but male juror had been very 
$e appellate court affirmed denial of motion for new trial: “It is not possible to 
#mermne mental processes of jurors by the strict tests available in an experiment in 
#wmex. we have to deal with human beings, whose opinions are inevitably to some extent 
Mase to emotional controls that are beyond any accessible scrutiny.”); Simmons First 
%". Bani v. Ford Motor Co., 88 F.R.D. 344 (E.D. Ark. 1980) (affidavits that juror 
msec and harassed other juror into agreeing with her were inadmissible; extensive review 
# ame) Poches v. J.J. Newberry Co., 549 F.2d 1166, 1169 (8th Cir. 1977) (jurors 
Semmens indicating prejudice against husband of party and desire to complete case 

_ @W&» were not received. ). 

® Lanted States v. Ross, 203 F.Supp. 100 (E.D. Pa. 1962) (husband of juror in car 
We prior to verdict; counsel for defendant moved for new trial on ground that juror 
Wg dave been upset and not able to exercise best judgment; court interrogated juror who #8 at she had not been affected). 

Fak + Neely, 41 F.R.D. 361, 366 (N.D. W.Va. 1966) (on motion for new trial urging 

(Rel.13-8/81 Pub.803)   
  

  

   



q 606[04] EVIDENCE 

threats,?¢ acceptance of bribes,?” or possession of knowledge rej 
the facts in issue obtained not through the introduction of evig 
acquired prior to trial?® or during trial through unauthorized 
experiments, investigations,’ news media,*? books or documengys 
  

that one of jurors had been intoxicated, court presented all jurors with quest; 

concluded that “juror had not been so intoxicated as to have lost control of his f, 
Jorgenson v. York Ice Machinery Corp., 160 F.2d 432, 435 (2d Cir.), cert. denjeg E30 

764, 68 S.Ct. 69, 92 L.Ed. 349 (1947) (dictum); Annot., “Use of intoxicating : 
jurors,” 7 A.L.R. 3d 1040 (1966). See also United States v. Provenzano, 620 F 34 #9 
Cir., cert. denied, 101 S.Ct. 267, 66 L.Ed. 2d 129 (1980) smoking marijuana) Te 

26 Miller v. United States, 403 F.2d 77, 83 fn. 11 (2d Cir. 1968) (coun : 

intimated that threats to jurors were the kind of extraneous influence about why 

could testify in federal courts under rule of Mattox v. United States, 146 U.S. 14g oy. 

50, 36 L.Ed. 917 (1892)). 

27 Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1953) fone 

remanded where bribery offer made during trial reported to judge but not to 
attorney; Supreme Court ordered hearing to determine what actually transpereg er 

whether it was prejudicial). See Annot., “Attempt to bribe juror as ground for ney "i 
or reversal,” 126 A.L.R. 1260 (1940). 

28 United States v. Blair, 444 F. Supp 1273 (D.C. Cir. 1978) (juror A allowed 10 

that she heard juror B state that she had known the defendant; juror B then testifunt fie 

she had known defendant in school and that she had heard he was hooked on drugs _— 

ordered new trial, citing Rule 606(b)). Problems relevant to questioning Jurors on the wg 
dire are discussed at § 606[02], supra. : 

29 See, e.g., United States ex. rel. DeLucia v. McMann, 373 F.2d 759 (2d Cr res 

Kilgore v. Greyhound Corp., Southern Greyhound Lines, 30 F.R.D. 385 (ED Tom 

1962) (court held hearing to determine whether juror had visited the scene of the aco 
while the trial was in progress; no prejudice because foreman stopped him from 
experience and told jurors to disregard anything he had said). Annots., “Prejudicia: figs 
of unauthorized view by jury in civil case of scene of accident or premises in ques * 

11 A.L.R. 3d 918 (1967); “Unauthorized view of premises by juror or jury in cnmiss Po 

as ground for reversal, new trial, or mistrial,” 58 A.L.R. 2d 1147 (1958). 

30 See, e.g., United States v. Beach, 296 F.2d 153 (4th Cir. 1961) (conflict in tests 

as to whether defendant could hear adding machines used in bookmaking operas 

adding machines introduced in evidence and sent to jury room; jury requested and recess 

electric drop cord; appellate court remanded and ordered trial court to inquire wheshs 

jury had conducted experiment as to audibility of adding machines [the attorneys shed 
have recognized that the jury would be curious about this and the experiment should hase 
been conducted in court where dissimilarities could have been pointed out]). Scmae 

Kuhlman, 488 F. Supp 59 (S.D.N.Y. 1979) (habeas corpus petitioner entitled 10 evident 
hearing with respect to claim that during jury’s deliberations in robbery trial, jury cape 

mented with whether it was possible to identify person in stocking mask; if cour: dS 

mines that jury misconduct occurred it will have to assess prejudice by drawing infers 

about probable effect on average juror). See Annot., “Tests or experiments in jury re 

95 A.L.R. 2d 351 (1964). 

31 See, e.g., Southern Pacific Co. v. Klinge, 65 F.2d 85 (10th Cir.), cert. denied. 2% 

657, 54 S.Ct. 72, 78 L.Ed. 569 (1933) (impeachment permitted where juror dunag gsi” 

night adjournment investigated settlement offer by defendant and told other jurce. 

32 Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892) (af 

(Rel.13-8/8!  



+ f 

pf knowledge rojo. 

h Unauthorigeg 8 
ooks or documengys 

jurors with Ques 
lost contro] of his § By 
Rd Cir.), cert. denieg 3 ¢ 

se of intoxicating . Provenzano, 620 F2¢ "or ; 
moking marijuana; 

Cir. 1968) (count gp 
influence aboy; whack 
States, 146 US. 149, 13 

D, 98 L.Ed. 654 (198% 
to judge but not to ae 
hat actually transpereg 
Juror as ground for mew 

8) (juror A allowed 1p 3 
nt; juror B then testifung 
e was hooked on drugs @ 
uestioning jurors on for ve 

30 F.R.D. 385 (ED Tos 
ited the scene of the ode 
topped him from 

- Annots., “Prejudicy 
Nt Or premises in quests 
JUror OF jury in crimuns ae 

f 1147 (1958). 

1961) (conflict in testing 
i in bookmaking opeTEES 

; Jury requested and rece 
al court to inquire wists 
chines [the attorneys shoul 
the experiment shoud hes 

een pointed out]). Simos & 

tioner entitled to evidentus 

in robbery trial, jun expe 

bcking mask: if coun 

judice by drawing infers 
experiments in jury rom" 

Cir.), cert. denied. 2% 

bd where juror during 

and told other jurors 

Ed. 917 (1892) (afi 

(Rel.13-8/8! 

WITNESSES 1 606[04] 

consultation with parties, witnesses or bthers,% or through 

admitted that they read newspaper clippings about case during deliberation): 
sMcClay, 575 F.2d 407, 411 (2d Cir.), cert. denied, 99 S.Ct. 290 (1978) (habeas 

he ted from state court conviction for burglary; state court had refused to _ 
adequately defendant’s claim; defendant's address had not been a part of the 

pe had been reported in a newspaper story; according to two jurors’ statements, 
send the Story which became an important subject of discussion by the jury; since 

: had claimed that he was on the scene when arrested at 4:00 A.M. because 
sung for a bus to go to work, the discovery by the jurors that he lived miles away 
ended to discredit his story; “jurors” consideration of extrinsic information 
a Constitution.”); United States v. Kum Seng Seo, 300 F.2d 623 (3d Cir. 1962) 

pe mformed defendant’s counsel that juror passed around newspaper clippings about 
nie before vote on verdict; trial judge examined two jurors and denied motion for 
Bh on reversed). State v. Levitt, 36 N.J. 266, 271-273, 17 A.2d 465, 467-468 (1961). 
Br v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed. 2d 1250, 

g (1%) (“The trial judge has a large discretion in ruling on the issue of prejudice 
= ¢rom the reading by jurors of news articles concerning the trial. . . . Generaliza- 
li that statement are not profitable, because each case must turn on its special 

no 
®aex cg. United States v. Vasquez, 597 F.2d 192, 193 (9th Cir. 1979) (official file 

ali defense instructions and motions that had been denied by the court and other 
Es Fame which had been held inadmissible accidently taken into jury room; court held 
gw Sdfendan! “1s entitled to a new trial if there existed a reasonable possibility that the 
i gga: matenal could have affected the verdict;”” no mention of Rule 606); United States 
2 * pws: 48¢ F. Supp. 578 (E.D. Va. 1980) (new trial granted where documents never 

jemdaced Into evidence were sent to jury deliberation room and read aloud); Palestroni 
& Swotw 10 NJ. Super. 266, 77 A.2d 183 (Super. Ct. 1950) (new trial based on jurors’ 
gmmments that they had consulted a dictionary). 

® epee +. Westinghouse Electric Corp., 483 F.2d 428 (5th Cir. 1973) (Jury verdict set 
wa where on several occasions representative of defendant insurer conversed with juror; 
gs @ough conversation “did not broach upon the litigation . . . the harm is inherent in 
#w seuteratc contact or communication between juror and litigant,” court emphasized 
$e mow “were deliberate conversations, not inadvertent exchanges or greetings.”). Wash- 
sg Gas Light Co. v. Connolly, 214 F.2d 254 (D.C. Cir. 1954) (uror called defendant 
g= sompan). misrepresented that she was new owner of gas furnace and sought advice 
@® fsachoning of furnace; trial court affirmed judgment and refused to permit interroga- 

~ wm of ror. appellate court reversed and ordered judge to decide issue of prejudice); 
Smmec States v. Boykin, 275 F.Supp. 16 (M.D. Pa. 1967), aff'd, 398 F.2d 483 (2d Cir. 
$a. cer: denied, 393 U.S. 1032, 89 S.Ct. 645, 21 L.Ed. 2d 575 (1969) (uror rode to trial 
# aw win employees of Lewisburg Penitentiary where assault which was the subject of 
#» Ta had been committed; court held three separate post-trial hearings and concluded 
We dctendant’s case had not been discussed). 

Br e.g. Richardson v. United States, 360 F.2d 366 (5th Cir. 1966) (trial court abused 
Ssemenor in failing to hold hearing as to whether witness engaged in private conversation 
®& mror; Compare United States v. Williams, 543 F.2d 47. 51 (8th Cir. 1976) (while 
#mmpedicial communication between a witness and Juror is presumptively prejudicial, trial 
WWE. &c not err in finding that no such communication occurred and in refusing to 
Wieshos the jury about the incident). 

 (%aned States v. Green, 620 F.2d 1383 (10th Cir. 1980) (marshal explained eligibility 
Faemiencing under Youth Corrections Act which some jurors may have thought applied 

(Rel.13-8/81 Pub.803)   
  

 



1 606[04] EVIDENCE 

other extra-record channels,” regardless of whether the jury mj : 
occurred within or without the jury room. TiSCondgy 

Rule 606(b) would not bar testimony by a juror that all the ; = 
agree that through inadvertence, oversight or mistake the vertag 
nounced was not the verdict on which agreement had bee Teach > 
  

to defendant); United States v. Williams, 613 F.2d 573 (Sth Cir.), cert. denjeg You 
137, 66 L.Ed. 2d 60 (1980) (communication between trial judge-and juror jp which § 
informed court that she was socially acquainted with defense character Witness Poy 
court found no abuse of discretion in refusal to grant new trial); Morgan v. Unig get 
399 F.2d 93 (5th Cir. 1968), cert. denied, 393 U.S. 1025, 89 S.Ct. 635, 2] LE¢ 2¢ 
(1969) (trial judge conducted examination of entire panel of Jurors after verd; 
was made by defendant that one of the jurors sitting in his case had conversed gh - 
case with member of another jury sitting on the same day). Cf Gold v. United Sine 
U.S. 985, 77 S.Ct. 379, 1 L.Ed. 2d 360 (1957) (court reversed where three MEMbery of see 
Jury were contacted by FBI agent investigating similar case: ordered NEW trial “se. 
of official intrusion into the privacy of the Jury”); United States v. Virginia 
Corporation, 335 F.2d 868 (4th Cir. 1964) (court permitted alternate juror to retire os 
room with twelve regular jurors when one of regular jurors appeared to be i 
instructed alternate to remain silent; appellate court found that “the Presence of ga 
alternate in the jury room violated the cardinal principle that the deliberations of the 
shall remain private and secret in every case.” Court noted that even if silent, the a} 
“attitude conveyed by facial expressions, gestures or the like, may have had some PP 
upon the decision of one or more jurors.”). See Annots., “Stranger’s communicator wg 
Jury in federal criminal cases as prejudicial,” 1 L.Ed. 2d 1849 (1957); "Communicate, : 
between jurors and others as ground for new trial or reversal in criminal case." ALE 
254 (1923), 34 A.L.R. 103 (1925), 62 A.L.R. 1466 (1929). Cf Turner v. Louisa #% 
U.S. 466, 472-473, 85 S.Ct. 546, 550, 13 L.Ed. 2d 424, 429 (1965) (during three day mole 
trial, jurors were sequestered in presence of deputy sheriffs who later testified for the wpe 
judgment reversed; “In the constitutional sense, trial by jury in a criminal case DeCovarly | 
implies at the very least that the ‘evidence developed’ against a defendant shal] come a 
the witness stand in a public courtroom where there is full judicial protectior ¢ 
defendant's right of confrontation of cross-examination, and of counsel. What hares 
in this case operated to subvert these basic guarantees of trial by jury . . . [The crdingiis 
which the jury attached to the testimony of these two key witnesses must inevitably hue 
determined whether Wayne Turner was to be sent to his death. To be sure, their credindiss 
was assailed by Turner's counsel through cross-examination in open court. But the potas 
tialities of what went on outside the courtroom during the three days of the trial ma: we 
have made these courtroom proceedings a little more than a hollow mockery ™j 

37 See, e.g.. State v. Kociolek, 20 N.J. 92, 118 A.2d 812 (1955), noted 56 Colum 1 Be 
952 (1956) (leading case discussing and allowing proof of objective misconduct, appli 
court held that new trial should have been granted on basis of juror’s affidavit the es 
had been present in courtroom when defendant had pleaded guilty to another indictmmsts 
See Annot., “Admissibility and effect in criminal case, of evidence as to juror’s statensm 
during deliberations, as to facts not introduced in evidence,” 58 A.L.R. 2d 556 (1985 

38 See, e.g., Young v. United States, 163 F.2d 187, 189 (10th Cir.), cert. denied 33: CH 
770, 68 S.Ct. 83, 92 L.Ed. 355 (1947) (“The rule to which reference has beer mle 
excluding testimony or affidavits of jurors to impeach the verdict for miscondut # 
members of the jury occurring within the jury room and in connection with the deli 
tions of the jury does not prevent the reception of evidence of jurors to show that theres 
mistake, the real verdict on which agreement was reached in the jury room was ## 

(Rel.13-8/8; Masi 

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= = JILL DARMER 

RA 

(404) 799-6655 

Fraenkel Wholesale Furn. Co. 
Fraenkel Bedding Co. 
4850 N. Church Ln. 
P.O. Box 1307 

Smyrna, Ga. 30081  



JOHN CHARLES BOGER 

ATTORNEY AT LAW 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

99 HUDSON STREET * NEW YORK, N.Y. 10013 * (212) 219-1900  



  

STATE OF GEORGIA es 
COUNTY OF GWINNETT ) : 

ROBERT F. BURNETTE, being duly sworn, states: 

l. I am a citizen of the State of Georgia. I reside 

at 213 Kenvilla Drive, Tucker, Georgia 30084. In 1978, I served 

as a juror during the trial of Warren McCleskey in the Superior 

Court of Fulton County, Georgia. If I had known during the trial 

what I have recently learned about one of the State's key witnesses, 

Offie Evans, I believe it could have made a difference in whether I 

voted for a death sentence, and I believe it would have affected 

some of the other jurors too. 

2. It wasn't an easy case. We spent a long time 

discussing the State's evidence. All of the jurors in our case 

were very responsible and concerned to be fair. It did seem clear 

that, from the evidence we heard, McCleskey had been one of the four 

mn who robbed the Dixie Furniture Store. The hard question for us 

was whether he was actually the one who shot the police officer, 

and whether it had been with malice. 

3. Ben Wright, the other robber who testified for the 

State, said that Warren McCleskey had admitted the shooting. I 

honestly never trusted Wright and I don't think the other jurors did 

either. He seemed like a man without a conscience. He was very 

cool and arrogant when he testified. I had the feeling that if he 

had done the shooting himself, he wouldn't have had any remorse at all. 

4. I also terenber Offie Evans, who had been in jail, and 

who testified that McCleskey had admitted to him that he had done it. 

Evans also said, I remember, that McCleskey told him he would have 

shot other policemen to get out of there. That was important 

 



  

evidence to us. It looked like Evans had nothing to gain from what 

he said. 

5. We finally decided that whoever shot the policeman 

had deliberately tried to take his life. I was not 100 percent sure 

that McCleskey was the triggerman since there was nothing that 

absolutely proved he was the one -- but on the evidence we were given 

he seemed to be the one. 

6. When we started to discuss the sentence, our decision 

got even harder. It seemed we took a very long time, and some of us 

were looking for a good reason, any reason, to give McCleskey a life 

sentence. I come from a broken home myself; I was passed around from 

relative to relative coming up, and I spent a year and a half in the 

Methodist Orphanage. I know that what a person's been through can 

affect his view of life. But no one in this case gave us any real 

reason to vote for life. 

7. Even without any background on McCleskey, it was a 

very hard thing to vote for death. I remember I did so only because 

I thought, based on the evidence we had, that McCleskey had 

deliberately taken that officer's life. 

8. On May 7, 1987, two people representing McCleskey came 

to ask me about the case. After I told them what I remembered, they 

told me about the Atlanta police detective who had promised to speak 

to federal people about Offie Evans' escape charge that he had ak 

the time of the trial. Nobody ever told us about that during the 

trial. It puts a very different ight on Evans' testimony. It 

sounds like he was probably hoping to get off of his escape case by 

testifying against McCleskey. The jury should have known that, I 

ER —
—
—
—
 

 



  

think. It changes the State's whole case. 

9. Like I said, we had a hard time deciding who did the 

shooting, and a hard time deciding to impose the death sentence. I've 

read the part of the trial transcript where Evans testified, and 

I've also read what Evans said in the state hearing in Butts County. 

I would definitely not have voted to sentence McCleskey to death if 

I had thought he might not have been the triggerman. Even without 

Offie Evans' testimony, I've naturally wondered alot if I did the right 

thing. Knowing now that Evans could have lied to cover his deal with 

the detective definitely could have made a big difference to me, and to 

other jurors, I think -- at least in deciding to give the death 

penalty. It keeps me from being sure, and I don't see how you can 

impose the death penalty if you're not very sure. 

10. Apart from Ben Wright, who might have done it himself, 

and from some evidence about who had the murder weapon, which never 

quite added up, the whole case against McCleskey for shooting the 

policeman came down to Offie Evans. If he was just testifying to 

save his own skin, I couldn't have trusted that. No one can always be 

certain, but I honestly do think knowing about his deal with the 

detective could have made the difference to me. It doesn't seem 

fair that we weren't told about it. 

  

Robert F. Burnette 

€ ome 

Sworn to before me this day 
of May, 1987 

  

 





  

STATE OF GEORGIA ) __. 
COUNTY OF FULTON ) g 

JILL DARMER, being duly sworn, states: 

l. I am a citizen of the State of Georgia. I reside at 1445 

Monroe Drive, N.E., in Atlanta, Georgia. In 1978, under my former 

married name, Marg Darmer, I served as a juror in the trial of Warren 

McCleskey. 

2. Our jury had a hard struggle with the evidence in this 

case. We discussed the issue of guilt or innocence for a long time. 

We were able to agree without alot of difficulty that all four men, 

including Warren McCleskey, had at least participated in the armed 

robbery. But the issue of responsibility for the shooting was 

different. 

3. The evidence about who fired at Officer Schlatt struck 

me as far too pat. The Atlanta Police Department was obviously disturbed 

that one of its officers had been killed. I had the feeling, however, 

and other jurors did as well, that the State had decided to pin the 

shooting on Warren McCleskey, even though the evidence was not 

clearcut that McCleskey had actually been the one who fired the shots 

at the officer, 

4. The testimony from Ben Wright, the other co-defendant, 

didn't impress us much, since he obviously could have committed the 

shooting himself and had everything to gain by blaming McCleskey. 

The evidence on who was carrying the silver gun seemed to point to 

McCleskey, but it was contradictory at several places. Several 

witnesses stressed McCleskey had been the one to come into the front 

of the store, but three of the robbers gathered all the store personnel 

together in the middle of the store, and nobody even saw which one of 

 



  

the three ran toward the front when Officer Schlatt arrived. 

5. That left us with the testimony of Offie Evans, who had 

been in the cell next to McCleskey. Evans told us that McCleskey had 

admitted to him that he had shot Schlatt; McCleskey even said he would 

have shot his way out no matter how many police had been there. This 

testimony made a real difference in my opinion. Unlike Ben Wright, I 

didn't think Evans had anything to gain. I knew Evans had a prior 

criminal record -- they brought that out during the trial -- but, 

despite that, I didn't see any reason why he would deliberately tell 

a lie to get McCleskey into trouble. 

6. We finally decided to convict McCleskey of malice 

murder, even though some of us continued to have some doubts about 

the evidence. 

7. I was surprised after we gave our verdict when they told 

us we would have to determine the sentence. I thought the judge would 

do that; so did some of the other jurors, I remember. During the 

penalty phase, some of us talked alot about our doubts on who did the 

shooting. This was a very close case for me on whether to give life 

or death. If we had found any valid reason not to give death, I am 

certain that I, and a number of other jurors, would never haven given 

McCleskey a capital sentence. But the defense attorney, honestly, just 

wasn't nearly as good as the prosecutor. We weren't given any real 

reasons we could stand by, except our doubts about who did it, to vote 

for a life sentence. On the evidence we had, even though it was 

very, very close, I think we did the right thing. 

8. Earlier this week, two persons involved with McCleskey's 

defense came to see me at my apartment. They asked me what I remembered 

and I told them. I was very disturbed when I learned that a police 

r
n
 

k
A
 

e
t
a
 

  

 



  

detective had promised Offie Evans in 1978 to speak with federal 

authorities on his pending escape charge. 

9. My own vote depended alot on Evans' testimony. The 

idea that Evans might have testified hoping to avoid conviction on 

federal escape charges changes my view of the whole trial. It gave 

Evans a strong motive to lie that we didn't recognize at the time. 

10. As I said, this was for me a very close case. It took 

Evans' testimony for the State to prove to me, beyond a reasonable 

doubt, that McCleskey was the triggerman. Without Evans' testimony 

I definitely would not have voted for a death sentence, and I believe 

at least a few other jurors would have agreed. | 

11. Let me go further. I knew then that it only takes one 

juror to hold out against the rest. I am certain that had I known 

that Offie Evans had an arrangement with an Atlanta detective -- if 

I had heard Evans' testimony in the state habeas corpus proceedings -- 

1 would never have voted to impose capital punishment. I believe I 

could have remained firm in my vote no matter what other jurors may 

have decided. It would have been enough to leave a big question in 

my mind about who actually killed Officer Schlatt. 

12, The crime McCleskey and his three friends were involved 

was very serious, but so is a death sentence. Our jury 

tried hard to do the right thing in a very difficult case. I think 

we were entitled to all the evidence. It appears we didn't get it. 

( 

  

Jill Darmer 
Sworn to and subscribed before me 

this day of May, 1987 

  

 





  

Susie Sheh Im 

Ted. doc (0 (88-7532 
rl (h) 659 — 720% 
  

 





  

133- 4093 

 



  

STATE OF GEORGIA ) 48 
COUNTY OF GWINNETT ) 2 

ROBERT F. BURNETTE, being duly sworn, states: 

l. I am a citizen of the State of Georgia. I reside 

at 213 Kenvilla Drive, Tucker, Georgia 30084. In 1978, I served 

as a juror during the trial of Warren McCleskey in the Superior 

Court of Fulton County, Georgia. If I had known during the trial 

what I have recently learned about one of the State's key witnesses, 

Offie Evans, I believe it could have made a difference in whether I 

voted for a death sentence, and I believe it would have affected 

some of the other jurors too. 

2. It wasn't an easy case. We spent a long time 

discussing the State's evidence. All of the jurors in our case 

were very responsible and concerned to be fair. It did seem clear 

that, from the evidence we heard, McCleskey had been one of the four 

men who robbed the Dixie Furniture Store. The hard question for us 

was whether he was actually the one who shot the police officer, 

and whether it had been with malice. 

3. Ben Wright, the other robber who testified for the 

State, said that Warren McCleskey had admitted the shooting. I 

honestly never trusted Wright and I don't think the other jurors did 

either. He seemed like a man without a conscience. He was very 

cool and arrogant when he testified. I had the feeling that if he 

had done the shooting himself, he wouldn't have had any remorse at all. 

4. I also remember Offie Evans, who had been in jail, and 

who testified that McCleskey had admitted to him that he had done it. 

Evans also said, I remember, that McCleskey told him he would have 

shot other policemen to get out of there. That was important 

H 

 



   
- 

  

evidence to us. It looked like Evans had nothing to gain from what 

he said. 

5. We finally decided that whoever shot the policeman 

had deliberately tried to take his life. I was not 100 percent sure 

that McCleskey was the triggerman since there was nothing that 

absolutely proved he was the one -- but on the evidence we were given 

he seemed to be the one. 

6. When we started to discuss the sentence, our decision 

got even harder. It seemed we took a very long time, and some of us 

were looking for a good reason, any reason, to give McCleskey a life 

sentence. I come from a broken home myself; I was passed around from 

relative to relative coming up, and I spent a year and a half in the 

Methodist Orphanage. I know that what a person's been through can 

affect his view of life. But no one in this case gave us any real 

reason to vote for life... 

7. Even without any background on McCleskey, it was a 

very hard thing to vote for death. I remember I did so only because 

I thought, based on the evidence we had, that McCleskey had 

deliberately taken that officer's life. 

8. On May 7, 1987, two people representing McCleskey came 

to ask me about the case. After I told them what I remembered, they 

told me about the Atlanta police detective who had promised to speak 

to federal people about Offie Evans' escape charge that he had at 

the time of the trial. Nobody ever told us about that during the 

trial. It puts a very different light on Evans' testimony. It 

sounds like he was probably hoping to get off of his escape case by 

testifying against McCleskey. The jury should have known that, I 

ci 
ht

 
0 
h
e
 

a
i
 

  
  
 



  

think. It changes the State's whole case. 

9. Like I said, we had a hard time deciding who did the 

shooting, and a hard time deciding to impose the death sentence. I've 

read the part of the trial transcript where Evans testified, and 

I've also read what Evans said in the state hearing in Butts County. 

I would definitely not have voted to sentence McCleskey to death if 

I had thought he might not have been the triggerman. Even without SS 

Offie Evans' testimony, I've naturally wondered alot if I did the right 

thing. Knowing now that Evans could have lied to cover his deal with 

the detective definitely could have made a big difference to me, and to 

other jurors, I think -- at least in deciding to give the death 

penalty. It keeps me from being sure, and I don't see how you can 

impose the death penalty if you're not very sure. 

10. Apart from Ben Wright, who might have done it himself, 

and from some evidence about who had the murder weapon, which never 

quite added up, the whole case against McCleskey for shooting the 

policeman came down to Offie Evans. If he was just testifying to 

save his own skin, I couldn't have trusted that. No one can always be 

certain, but I honestly do think knowing about his deal with the 

detective could have made the difference to me. It doesn't seem 

fair that we weren't told about it. 

  

Robert F. Burnette 
4 " 

Sworn to before me this day 
of May, 1987 

  

| 

| 

 

























¢ Do you read the newspepers, watch TV end listen 

to the radio rmuch? 

A I listen to the TV news fairly regularly. 

(€ All right. IX you recall whether or not you have 

heard anything about the robbery of & Dixie Furniture store 

wherein a police officer was SLOT? 

k 1 beve & vejuc recollection ©f just hearin: sone=- 

thing about it, but I occn't renenper any Geteils., 

¢ A= & result of whet you might have heerd or seen, 

GC you heve any prejudicer resting on your ming now thet would 

-
)
 not allow you to git as & feir ang jwpertisl juror 

a I don't believe so. 

Khe TORNIE: 1 have ho further cuestions,., Thank   YOU. 

ns COURT: 2uda. JUror, when vou oo in the jury 

roo. don't discus: any « tht CQUEELIOn thr! wele EEL 

You ©r an. sspects Of this case with tic Other durore, 

{VLereuon, tie Juror was excuse. iron the court- 

FOOF , } 

7H CLinrn: Roheld CC, Hudgins, 

ThE JURCK: 1 work for Sears Roebuck anc Company. 

BY kik. PARKLEXN: 

¢ Scare what, sir? 

A beers at Jefferson Street.  



  

Oo And what do you do with thei over there, sir? 

A 1 ai an inspector, a cuslity inspector. 

C And how many years heve you becn with Sears? 

y 3 kineteen, 

C HOw many vears over at Jefferson Street? 

A Off anu on about tern yeers, 

ec And are you married, Mr. Hucgins? 

3 Yee, Bir. 

< so0ege your wife wori outside the home? 

) 5 She owns her own buslhiete., 

& what tyre of buclnens is thst, sir? 

A It's 8 filo0r anc wall coverine buriness in Poorest 

Farl.. 

€ Does she sc¢ll anc else install carpet? 

A Le, Bir, she {sr & -- gle sclls a1 coordinates tric 

colors and thinuyt like that, she is & Gecoretor,   
{ pOer she have Len je thet wor, for her thet instel. 

the Carpet: 

A Yes, sir. 

Q Are they actually her erployecs, she hires then? 

A MC, Bir, they are subicontrectors. 

C Do you have children, sir? 

A TWO, 

C Ané what ic the oldest chilé? 

A Sixteen,  



    

5 

o 

he 
J 

"
 

pent? 

Store wi 

  

32 he or she still ip school? 

Have you served on jury duty before? 

Tes, Sir. 

Civili case? 

Yes, Eir, 

\
)
 

Cririnal cea: [ fm
 

Al,but thee Years 8G. 

Are you fron the Atlarte arcva’? 

here you raise’ there: 

: 
- a i —~ rs - IE $$ Are you conacientiougls ono ne te Ce. pte. Jiile lw. 

HC, Ell. 

- : rs sN - 
: ® &E fac -— iQ pf SRO £1. 

I - : . a & 

EE ES SR 

we facee Of this cease involve the Dixie Furniture 

FE & Yobber, occurrer &nt & police officer was slot, 

liave you ree. Or ncarc anything about that? 

& 

A 

heard avout 

Yes, Bir, 

Al} right, Khai, 1: snvtiiing, bave you teac Or 

it? 

 



    

A 

b J 

kil wah 

SUED 

led by walkin; in on 8 roooder; 

That an officer wae Lilled in the event; the 

at the time and 

ects were eventually captured, 

{ hil right. Now, woulc that cause you &ny procluns 

in pitting on this jury a: 8 felir anc irrarvial Sourovy 

I I con't thin. so, 

£ AY] right, Cor. your throw el] 7 that out OF yoLr 

$eint and listen only $0 the evidence as if cones fror the 

rtanid? 

£ Yoo, sir. 

Il. TURLERY Thanh you, cir. 

iE Couns My, Suror, tlesnc dont Ciecasy tii 

Cass i any May wit! the ctler jurcre, You per 10 Into 

tie Jul) You, 

{Fnhereupon, the JULGCr we. ecu fYo: Lim COLY l= 

YOGo. 

“ie ww 

Tab CLERK:  FMiE, RilSTrel tP, LIOVOD. 

THE JUROR: © &5 Vite presiocht OF RecieallUnd 

Computer bystems, 

EY Mrs PARAZA? 

C Vice president of kecreationel Conputer &ygtent? 

Fk Yes, Bir. 

8 Eow bic an outfit 1s that? 

ELe&li, We Lave about eleven enployees., 

-t 

 



  

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 7 

BR, TURNER: Thank you. Nc further questions. 

THE COURT: Mrs. Glover, don't discuss this case 

or any aspect of it with your fellow jurors when you ge 

in the jury room. Than) you.   
(vhereupon, the juror was excused {ror the court- 

FOOL, ) 

mit CLIFEK: Paul J. Feale, 

THLE JUPOk: 1 ar an engineering msneger for western 

U Your name is whet, 81lr? 

A heale, raul J. 

@ 1's sorry. You are with Western Electric, sir?z 

I 3 Yes, sir. 

A And now lonu Lave you been with thei? 

Is Twenty-three Years, 

ls thet in Sandy EBDrings? 

3 kG, that's KOICrO&E., 

3, “he cable plant? 

A Tne cable plant, yeg, sir, 

OQ Where were you before you care toc Rorcross, sir? 

A I was in Marylanc for & year, and prior tc that, 

hew Jersey. 

¢ Are you fros kew Jersey? 

 



  

”
~
 

three. 

~ 

3 

  

Yes, 

Mr, Reglc, are you married, sir? 

Yoo, sir, 

And do you have chiléren? 

Yes, 

\ihat is the oldest child? 

Tventy=£i1x, LOY. 

Is that child married? 

1s he rarriec? 

ic you have &ny other children that are not in 

- - Ae 
Fer XI ELLMd rf 

1 have a dauanter livine ét home; she's twernty- 

Eave you served on jury duty before? 

I have Leen down: here twice, I heven't been 

seiectec for a jury. 

¢ 

A 

This is your third time? 

Yes, sir, 

ME. PARKEK: Thank you, Sir. 

 



    

EY MR. TURKLE: 

& Do you reac tine newspapers and listen to the TV 

nc racic often? 

p23 Very little, 

3% lieve you hiearc or read anything about the Lixic 

Furniture Store (orpany rotoery, which is the basis of this 

case? 

Ay Ould the fact that there wac 2 robbery snd tne 

p0llce Officer war 510%, in terre Of what I think the evidence 

it gCing tC BHUW, Cause YOu tC be unsble tO 8it Ir thie cage 

in any w:y a5 & fair snc $urtisl juror or prevent you fror 

bein; 2 fair and jrpertial juror? 

Lx Ines Slr. 

Mr. TURNENLKTY Thanh you, 

. COUNTY Mr, Jurcr, Son't uiscuss thie case 

Or 8 2s.eCte Of it wlth the Other jurors, 

ii JURUR: LeVe 1 Deel: peielrted? 

sl COUPLs Hu, SiY., 

{»liereupon, tne juror wes excusec fron the court- 

Foot.) 

ol Clikny John KE, HOlder, 

TEE JURCK: Owner and operator of Holder Tire 

Company in Eapeville, 

-f S-  



    

about this particular matter today, is that right? 

pS Acs far as 1 know, yes, sir, 

C woulc that cause you any regervations about sitting 

on this case? 

A RO, 8ir, 

¥ WoulC vou be able to sit on this cese as a fair and 

impertial juror? 

J 3 Yes, sir. 

HR, TURKIFE: i 4 Cis’ YOU e 

BL COURT: BEr. Juror, don't discuss this cesc or 

any aspects of it with your felion jurore, &nd you Ea) 

QO tO the jury roor., 

{whereupcn, tic juror was excuses frown the court- 

TOO, ) 

S8l JUKLEK tf 2 wors for the Atlants Public ScnoGa 

Eyctel. as & buildine nailnhtenalCce nechanic, 

BY Hi, PhRILN: 

€ Atlante Public School Systew? 

A Yes, sir. 

# What do you do with then? 

A Building maintenance mechanic. 

§: AnC how long have you been with the school Bvster?. 

A Twenty-seven years. 

 



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syeters? 

A 

& 

& 

- 
bs 

LJ 

  

And are you assigned to e& particular school? 

Environrent, I work at all scliools. 

Are you & supervisor there? 

JuEt work as & Bupervisor an WCrAEY, 

Do vou worry on the heating and eir-conditioning 
a “ p 

ATE YOu nierried? 

Yes, sir. 

Doce your wife werk cutside the nore? 

nhet Goes BnEe GC? 

Nurce, Sie works for s children's nursing 

khereeoouts, BIIY 

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e
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mm
 Mertihz's Play Schocl, prescuoci. 

Ir B1¢ & Te lEterec nUurke, £1r7 

Ive * 

And do you have Children ©f your own: 

YeE. 

How many children do you have? 

inree. 

What is the oldest child? 

Iventy=-seven, 

Wnat is that child doing? 

noiie 

works witli: a cozspany on industrial =-=- it just 

=T0i= 

 



    

glippeé my mind. 

e 

A 

oe 

A 

1s that chilé married? 

Yes, 

The child is on its own? 

Yes, 

Anc what is the next ave of the CLil1E? 

Twenty-four. 

what ie that child doinc: 

b¢ works where they mehe plestic bage. 

Is he or she merriec? 

hO. 

How about your tiLir” cn:ile 

Bhe's 2 homo, 

Ang how 0l1C ir she? 

Twenty-two, 

1g she going to sChOLIT 

beve you served on jury cut: before? 

Yes, sir, 1 have, 

Civil ceses? 

Civil and =- well, civil caces, I guess BO, yes. 

LEave you ever serveC on a criminal case where sone- 

body was charged with a crime? 

A 

C 

Yes, 

Don't tell me what happened on the criminal case,  



    
but did the jury come to a decision in that case? 

A 

Q 

church? 

Ci.urcn., 

5 

Yes, 

Do you go to church? 

Sonetimes., 

Are you a member of any particular church? 

Yes, 

You don't heve to, but do you wind telling me whic 

It's a enuzoh out of town, Saint Patillo bapticss 

menbershi;: hasn't been moved to the city. 

You say it's out of town? 

YeE., 

Where is that? 

McRae, Georgia. 

. % ryt ~ 4 vig: oer YS hr { Ki's Harilton, &re you conecientiously Op.posec 

Capitel punishment? 

A 

& 

¢ 

prevent you 

defendant's 

A 

BY Rk. 

  

Urposels { 

Yes, ix, 

kot reelly. 

Your attitudes towards capital punishrent wouldn't 

fror naling an impartial decision ag tc the 

guilt or innocence, would {t? 

1 ax sure it would not, 

ME, PARKER: Thank you. 

TURKEE:  



No, sir, 

HR. PARKER: Thank you, sir. 

BY MR, TURNER? 

Q Have you read or hearé anything about the facts 

involved in a robbery at the Dixie Purniture Store and the 

shooting of a police officer? 

p No. 

Cc You haven't heard one thing about it? 

one thing, not until this morning, 

TURNER: Thank you. 

COURT: #Mr. Kimball, don't discuss this case 

or any aspects of it with your fellow jurors. You may 

go into the jury roomn, 

(¥hereupon, the juror was excused fron the court- 

room. ) 

THE: CLERK: Robert i. Ragle, 

THE JUROR: Jewelry dye maker. 

BY MR. PARKLE: 

You are retired from who, sir? 

Dye maker. 

Tool and dye maker? 

Yes, sir, 

Who d4ié you work for, sir? 

I worked for myself.  



  

mei Xn 

      

       

    

   
   
   
   
    

   
   
    
   

    
    
     

     

T
T
 

RR
 

: Q Did you own your own business? 

A Yes, 

Q What was the name of your business? 

A R. L. Ragle Company. 

Q Did you sell that business or =-- 

A No, I still wor: at that trade. 

C And, Fr. Ragle, you are perricd, ie that correct? 

A Yes, sir. 

$ An¢ do you have children, sir? 

A I nave 2 BON. 

¢ What is his ace? 

A Paraon? 

Cc Bow 0ld ie he, sir? 

A Be is twentv-eight, 

U An is he married? 

A Bo, he's away {ror home, he's ar attorney with 

the brave, 

¢ Is he with the Attorney General's Office? 

F 3 ¥o, he is with the EEOC, something, the new 

organizations they have over there, 

¢ Eow long has he beer with ther? 

P A Well, thet organization was just planned, you 

: know, just this summer. A chap by the name of Beasley heads 

: that up. 1 don't kaow where he came from, but anyway, it's a 

Bey agency over there. 1% eat
 

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Q Have you served on jury duty before, sir? 

| A No, sir, 

i Q Have you ever been called before? 

A Several years ago I was called, about five years 

ago, right at the very busy time that 1 had to work in my 

business ané 1 asked to be excused. 

Q 8ir, are you conscientiously opposed tc capital 

punishment? 

& I have an open mind on 1t. I would not sey I was 

for or against it, It's & thing I never thought I would be 

called or to pass on. 

C Your attitude wouldn't prevent you fron making an 

impartial decision as to the defendant's guilt or innocence, 

would {t? 

I 3 KO. 

MR, PARKER: Thani you, sir. 

BY Ek. TUKKEK! 

¢ Mr. Kagle, what is your educationel backuround, 

please, sir? 

A I have two years of college, 

And in what area? 

In what area? 

Yes, sir. 

Just general. 

“”
 

9 
o 

vy
 

© 

Eave you ever been the victim of a crime?



     
    

        
   

  

       

   
    

   
   
   

    

         
   
    

     
   
    

          
      
        

A Of 8 crime? 

E Qo Yes, 

A Ho, not personally. 

(¢] All right, What about any of your friends or 

relatives? 

A I know of friends that have been victims, you know, 

Q All right, You say not personally. Have you evel 

been connected with the perpetration ©f a crime? 

A dO. 

Q Bot, of course, as a defendant, but have any of 

your stores, for instance =- how pany stores or =—- 

A I just have & piace of business, 

gC Bas that ever been robbed? 

A Burglarizedé one time. 

Cc All right. how, would that ir any wy cause you 

to be prejudiced in this particular case? 

F 3 Bo, I don't feel thet it woulc. 

¢ All right, Do you have any close friends and 

associates in lav enforcement? 

A No, 

¢ All right, Have you read or heard anything about 

the shooting of an Officer Schlatt at the Dixie Furniture Store? 

A I sav it on the news, you know, 

        
     

Q All right, What did you see on the news? 
    

I just was aware that there was a case, you know,



  
that this officer was shot, but, you know, every night, just 

like this past weekend, I ar avare that there was a robbery, 

you know, at the Holiday Inn or wherever, 

Q All right, Mow, @id you form any impressions as 

to the guilt or innocence of the people involved in that when 

you heard thet? 

A I didn't know enough about it to form any. 

4 All right. Do you have any impressions today on 

that now? 

A Ho. It's been some months ago and with all the 

other problerze of trying to survive, it is kind of melted out 

of my mind. 

MP. TURNER Thank you. 

Tir COURT: Mr. Kagle, don't discuss this cage OF 

any aspects of it with your fellow jurors, anc you may g¢o 

to the jury room. 

(¥aereupon, the juror was excusel fron the court- 

Troon, } 

Tak CLERK: Donald &. Gosden. 

THE JUROR: I work for I.B.X. as 3 business 

planner. 

   BY RR, PARKER: 

 



      
   
   
    
   

    

      
   
   
   
   
   
   

  

: Le How long have you been with I.B.M,? 

; A Twenty-one years, 

4 GC And what does a business planner &o, sir? 

; A Work on forecasting the business potential for new 

products for I1.B.M, 

C Bas most of that time with I.B.M. been in the 

Atlanta area? 

A No, only the last four years. 

C ¥Fhere were you before that, sir? 

I 3 I was in Rew York and Germany. 

Q Are you married, sir? 

A Yes. 

C Dc you have children? 

1 Three. 

Cc How ©l¢ is the oldest child? 

F 3 By oldest chilc is nineteen, 

4 Is that chil¢ in school now? 

A Yes, he ie. 

& Are all the other children in school? 

A Yes, sir. 

e Bave you served on a civil or criminal case before 

H on jury duty? 

: oe No, I have mot. 

Eave you aver been called before?   



       Pe 
4 Se 

J EF - 

1 OR ge 
naga 

  

    
        

  

¥ou just were not selected? 

  

         F That's correct. 

Q 

ment, sir? 

    
   
    
   
   
    
    

     

    
    
   
    
     
   
    

   Are you conscientiously opposed tc capital punish~- 

A No, sir. 

Q Would your attitude keep; you fron zaking an 

impartial decision ac to the defendant's quilt or innocence? 

A I don't believe so, 

KR, PAKKEK: Thank you, sir. 

BY MR. TURNER: 

Q Were you ever in the military, sir? 

A Yes, 

Cc Have you ever had any experience in lav enforcement 

in the military or otherwise? 

A Ro, sir. 

¢ All right, Dc you have any close friends Or asso- 

ciestes in lav enforcement? 

 § Ko. 
    

 ¥ Okay. Have you heard anything about the robbery        

  

and shooting at the Dixie Purniture Store wherein an officer    
     vas shot? 

      A I read 3 newspaper article. = 

  

   

CT All right. Bow many articles did you read on that, 
=%~ a on we EE ol T don if you ear recall? - oT        

       

  

=. = a Baveral, perhaps half a3 dozen, reg    * a



Q All right, As a result of reading those articles 

did you forx any opinions, attitudes or beliefs about this 

case? 

A I don't believe so, 

1", All right. Would you be able to sit as a fair and 

impartial juror in this case today? 

A Yes. 

C All right, Whet is your opinion or belief on the 

death penalty? 

) 3 I believe it is s&ppropriete, I guess. 1 don't 

have &ny moral objection to it. 

o When you say you believe it is approprieste, in 

all circumstances, or what 60 you mean, or is that & blanket 

statement? 

A 1 would say it's & blanket statement, yes. 

C All right. well, doer that peer you have 2 leaning 

more towarde capitel punishment than away frox it, how would 

you characterize it? 

A Probably slightly avay on a balance, 

KR. TURKER: Thank you, sir. 

TRE COURT: Rr, Gosden, don't &iscuss this case or 

any aspects of it with your fellow jurors, and you may go 

te the fury room, ; 

{Whersupon, the juror vas ‘wicubed ‘tron Shar” 

TOOR, )  



  
A 

case Or anything about it with any of the other jurors. 

You may go to the jury room. 

room, ) 

BY MK. PARKER: 

0 
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O
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sit in this case as a fair and impartial juror?      
    
     
    

    

     
    

     

No, 

FR. TURNER: Thank you. 

TRE COURT: Madam Juror, please don't discuss this 

(Whereupon, the juror was excused from the court- 

THE CLERK: MWrs. Agnes Awtrey. 

THE JUROR: Bousevwife. 

  

What does Mr. Awtrey do, please? 

Be works for the Postal Service, carrier. 

Be is a carrier? 

Yes, sir. 

Bow long has he workeé for ther? 

Twenty-one years, 

Do you have any children, Mrs. Awtrey? 

Yes, three, 

And what is the youngest child? 

Thirteen, 

What is the oldest one? 

Thirty-four, 

The thirteen~ysar-old is still in school?    



Yes. 

What is the next one's age? 

I have one twenty-five and one thirty-four, 

The one twenty-five, is thet child married? 

No, he don't live at home. 

Is he working? 

I1.B.K, 

A 

Q 

A 

Q 

A 

C 

3 

C Have you served on jury duty before? 

Ho, sir, 

Have you ever been callel before? 

Yes, sir. 

“
y
y
 

D
Y
 

Are you conscientiously opposel to capital punisi:- 

Bo, sir. 

C Your attitude towards capital punishment, would 

prevent you frome being 2 fair and impartial juror -- 

A No, sir. 

*) == in determining the guilt or innocence of the 

defendant? 

F Bo, sir, 

You could be fair and impartial? 

Tes, sir. 

HR. PARKER: Thank you. 

BY MR, TURKER: 

Q ¥hat iz your work background, please?  



      
   
    

   
    
   
   
   
   
   
   
   
    
   
    
    
   
    
    

      
          
       
   

       

I an a bookkeeper, 

¢] All right, gc ahead, 

] A Just accounting, that is the only position. I 

m
e
 

retired last year. 

Q Fron the County, you say? 

A Ko, accounting, 

Q was that the ts job you have ever held? 

) 3 For thirty-three years. 

¥] Okay. Bave you ever been the victir of a crime? 

A Wo, sir. 

€ Wheat about any of your family or friends? 

A No, Bir. 

C Do you have any close friends or relatives or 

associates in law enforcement? 

A lc, sir. 

C Okay. bkave you real or hearC any news reports on 

this particular cese? 

A NC, sir. 

C Okay. Are you familiar with in any way the circun- 

stances ©f this particular case? 

A Nothing but what he read this morning. 

© Okay. Have you heard anything or raad anything 

bose About the Dixie Furaiture holdu E 

I 2 ca oh, yw, Slane int 

1] What di¢ ou read 

    

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a -



       

   

   
   

    

   
    

    
   
   
    

   

   
    

   
   

   

   
   
    

   

   
    

    

A All I saw, 1 mean, all I heard was what was on the 

news and TV. 

Q Which was what? 

A Where he was shot, 

Q Okay. Well, é&il you hear anything about the appre- 

hension of any ©f the individuals involved? 

A NO, Bir. 

¢ well, did you foru any opinions or attitudes about 

the guilt or innocence cof anyone in connection with thet as 

& result of the reports thet you heard? 

A No, because I don't read that much ané don't watch 

TV that much. 

MR, TURNEK: Thank you, ma'ar. 

nl COURT: Madam, don't discuss this cage Or any 

aspects of it witn your fellow jurors. You may gC to the 

Jury rou. 

(Whereupon, the juror was excuseé from the court- 

TOOK, } 

THE CLERK: Mrs. Marianne Nahser. 

THE JUROR: I work for an insurance agent. 

BY MR. PARKER: 

1 Q Which insurance agency do you work for? 

; a Cotton States, Rs = 

L € Cotton Btates? —    



a 

ie 

        

    

    
    

       
      

    
     
    
    

    

      
     

  

A That is the Whitley Insurance Agency, he is an 

agent of Cotton Btates, 

Q And what do you do for him? 

; A 1 an a secretary. 

: i What does Mr. Bahser do? 

: ) | be is an architect, 

: C 1e he self-employed? 

A be ie with the Atlanta School Board. 

Q And how long has he been with thew? 

A About sixteen years. 

C Doc you have children? 

F Tw( boys. 

C And their ages? 

A Twenty-two anc twenty-four. 

& Are they both merried and on their own? 

I 3 One married. 

both orn their own?    |
)
 

One in school, yes. 

Bave you served on jury duty before? 

Ko. 

Are you conscientiously opposed to capital punish- 

     

. aii oo z «Se Re cg, 
Bo, a - : “~ = ] Nw mim; EN - i ams PE “: 

8 - * - . H 3 ’ L 

- 

o Your attitude’ ‘towards sapital punishment, would” Sta 

that prevemt you from deing od a. Sspartis) Juror als Eo 
wn "3 

      



       
   

   
   

    

    
    

   
    

    

       
    

       

      
     
      
     

the guilt or innocence of 2 particular defendant? 

: A NO. 

] KK, PARKER: Thank you, 

BY MR. TURNER: 

: G What is your educational background, please? 

A I ar a high school graduate. 

© bave you workeC any place other than with the 

insurance agency? 

TU
E 

Ek Other than the insurance agency? 

8; Bight. 

A Yes. 

Oo khere else have you worked? 

A The Veterans Administration some years ago. 

& In what capacity? 

: A Secretary. 

; Cc All right, Any place else? 

A Yes, I heve worked for a dentist. 

C All right, Do you have any close frienés or 

A associates in law enforcement? 

A do, 

C Bave you ever been the victim of a orise or any 

of your friends or 33003248 or relatives? 

wt ois : A Our house house. yes biulen invo ane. yine, 2 pn a 

   
Ed ~ a oe : <i a “All rian 

  

what in “shy way sause you to be TE          

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the 

I'm sorry, 1 missed 

¢ about the L1x 

in the p&pc 

read very 

¥eb. 

? 

in 

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this jury as a fair anc impartial juror? 

. ©. MR. TURNER: pi 

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the router goes around the 

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Lockheed Aircreft Company. 

Odell Watkins, Jr. 

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Mr. Watkins, how long have you been with Lockheed? 

Oi., that is a machine that routes parts to a tool. 

And what do you do with Lockheed, sir? 

THE CLERK: 

THE JUROR: 

Fifteen years. 

Router operator, 

Router operator. 

net does that entail? 

Beg your parcon? 

What does that entail? 

Are you married, sir? 

Do you have chidren? 

PARKERS 

€ thez down to the table & 

go to the jury room, 

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BY KEK. 

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BY KR. PARKER: 

£ Eir, how long have you been with the Postal Service? 

) 3 Approxirnately twelve years. 

¢ Bas &ll of thet beer in Atlanta, sir? 

A Yes, sir. 

C Are you from the Atlante area? 

A Yes, sir. 

e Born and raised here? | 

A Yes, sir. 1 spent some time in Riami, Florida, | 

2 €bild but I have pant hand majority of my lite in Bt1etas = | 

      

   
    
    
   
   
   
    

  

    
    
   
   
   
   
    
   

   
   
   

     

      

a fair and impartial juror? 

THE JUROR: I would probably have to say yes, that 

I could not be fair, based on what I have read about it. 

MR, TURNER: Thank you, 

TBE COURT: All right, dr, Hiles, I will excuse 

you fro this jury and let you return to the jury 

assembly roam on the fourth floor. Thank you very much, 

and thank you for your candor. 

(Whereupon, the juror was excused frox the court- 

Coon.) 

THE CLEFr: kobert F. Burnette, 

“EE JURCK: I ap a2 letter carrier for the Postal 

Bervice, ktlanta, work at Staticn K. 

REET on . 

Are you marries aov? 
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Yau, sir. 

Q Do you have children? 

A Three. 

< Tneir ages? 

A Thirteen, ten and six. 

g And are they all in school? 

& . Yes, sir. 

¢ Have you served On jury Guty before? 

h NO, sir. 

QO Kave you ever been called pvefore? 

A ho, sir. 

Q wnere is Mclynn Avenue? 

3 That's in Northeast Atlanta, kKorningside area, 

runs out off of Korth BighlanZd Avenuc. 

v ow long have you lived in that area? 

A Approximately six years, 

Er. PARKER: Thank you. 

EY MA. TURKREER: 

C Ky naze is John Turner anc 1 represent the defen- 

dant here. Eave you read or heard anything about the Dixie 

Furniture Store robbery wherein a police officer was shot? 

    A It's been some time back, I heard 3 little bit 

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about it, 

FEES 0 Do you recall what you heard about it? i] on F ' 1 § 

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Q All right, Would that cause you any difficulty 

or would you have any difficulty in sitting on the jury of a 

panel that was considering that matter, given that set of facts? 

A Ro, sir. 

Q All right. Then you would be able to put out of your 

mind anything that you have heard about the case up to this point 

and just listen to the evidence as it comes from the stand? 

A Yes, sir. 

& Do you think you could be a fair and impartial juror 

otherwise? 

A Yes, sir, I cc. 

KR. TURKER: Thank you. 

THE COURT: Mr. Burnette, don't discuss this case 

or any aspect of it with your fellow jurors. You may go 

in the jury room, sir. 

(Whereupon, the juror was excused from the court- 

TOOR., ) 

THE CLERK: Mrs. Clifford L. ilatton, Jr. 

TEE JUROR: I teach English at Morehouse College. 

BY MR, PARKER:    
firs. Lutton, how long have you taught English st 

        

   

   

  

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BY MR. 

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THE CLERK: Mrs, Marg G, Darmer, 

THE JUROR: 1 keep books, that is ny occupation, 

PARKEK: 

Kho do you actually work for, Mrs. Darmer? 

1 work for a coxpany called EBerklin & Jordan, 

Insurance Agent, 

's) 

> 

C 

A 

For how long have you worked for them? 

Four and & hall years. 

Who did you wori: for prior to that? 

Buck Creek Industries. 

Were you keeping their books, too? 

kight, that's correct. 

Wnat does Kr. Darmer Go? 

He is plant engineer for e& manufacturing firm and 

is 8 partner in & lumber company. 

C Do you have children? 

No children, 

Bave you served on jury duty before? 

No, 1 have not. 

Have you ever been called before? 

No, 1 have not, 

Where are you from, originally? 

Philadelphia, - 

How long have you been in the Atlanta area? 
- 

 



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  Thirteen years. 

Q Are you conscientiously opposed to capital punish- 

ment? 

A do, I am not. 

Q Your attitude towards capital punishment, would 

that prevent you fror being a fair and impartial juror as to 

the quilt or innocence of a particular defendant? 

A Ko, it wouldn't. 

MF. PRRKER: Thani you, 

BY ME. TURKLK: 

& Mrs, Darmer, have you read or heard anything about 

the circumstances surrounding the Dixie Furniture holdup ané 

the shooting of an officer in Mey of this year? 

f Nc, I have not. 

C You haven't heard one thing about it? 

£ Bothing., 

KR, TURNER: Thanh you. 

“EL COURT: Mrs. Darmer, don't discuss this case 

or any aspect of it with your fellow jurors. You may 

$0 to the jury room. 

{Whereupon, the juror was excused from the oourt- 

   
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BY KR. PARKER: 

     

  

   
    

    

  

Cc What does Mr, lavroff do? 

He is retired. 

w And what did he do? 

A He was a university administrator. 

Q At any one particular location? 

A Yes, Georgia State University. 

C Georgia State? 

A Yes. 

Q Did he head up one of the departments? 

F 3 Yes, sir, Matheratics Department. 

¢ 1s he doing anvthing now or just enjoying retire- 

ment? 

F 3 ho, he is at home, he is retired. 

£ Do you have any children? 

» No, 

Q Bave you served on jury duty before? 

A Ho, Bir. 

< Where are you from originally? 

Germany. 

Cermany? 

Yes, 

Bow long have you been here? 

SS    



A No. 

[4] Your sttitude towards capital punishment, would that 

keep you from being a fair and impartial juror as to the guilt 

or innocence of a particular defendant? 

A Bo, I would be very reluctant about ft, but I am 

not totally opposed to it, 

Q Excuse me? 

A I said, I would be very reluctant about it, but 1 

would not be totally opposed tc {t as per your statement. 

MR, PARKER: Thenk you, 

KR. TURKEF: Ko questions. 

THE CCUr%: Mrs. Lavroff, don't discuss the case 

or any aspect of it with your fellow jurors, anc you may 

go tc the jury roon. 

(Whereupon, the juror was excused from the court- 

TOON. ) 

THE CLERL: Joseph CC. league, Jr. 

TEE JURCE: I am vice president of Jova, Daniels, 

Busby, Architects, and 1 am an architect, 

BY MR, PARKER: 

Qe Where did you go to school? 

A Ssorgia Tech, 

Rak es 3 Ro #%ide v@ a Shen 214 you 

amaRt Ra WES | mop  



  

BY KR,     

Do you have any health reason or any personal reasons, 

including the fact that you might work odd hours, that 

would be particularly bothersome to you if this jury were 

sequestered, stayed in a hotel? 

THE JURCR: It wouldn't bother me at all, 

THE COURT: Thank you, sir. You can gc to the jury 

room, and don't discuss the case in any respect with your 

fellow jurors. 

{Whereipon, the juror was excused from the court- 

room, ) 

THE COURT: Gentlemen, after we have selected forty- 

nine qualified jurors, 1 intend toc ask that or a similar 

question to the panels, &nd one other question. Don't 

let me forget to do that sc we won't have a problex, a 

health probler or something like that after we get the 

jurors, but I asked that one because of that one particular 

answer he had given earlier. 

All right, cell the next juror. 

TEE CLERK: Krs. B., EB. Hickey. 

THE JUROR: I am a cook for McDonald's for three 

years. 

PARKER: 

L#) ¥hat 41d you do before that? 

a Just 2 mother. I have msver worked bsfore, I had



  
no training 

A 

Q 

you helping 

A 

at anything else, 

What does Mr. Bickey do? 

Be is & maintenance spray-painter for General 

At the Doraville plant? 

Bo, the Lakewood plant, 

And are your children grown now? 

Yes, ry last child is in her fourth year of college. 

Ie thet child working its way through school or &re 

some? 

Both, She works through the summer so shi has 

extra money, anki then we pay, you know, what we can, and she pays 

what she wants to, 

S 

ment? 

$ 

Bave you served on jury duty before? 

No, 

Are you conscientiously opposed to capital punish- 

NO, no. 

Your attitude towards capital punishment, would that 

prevent you frome being a fair and impartial juror on the guilt 

or innocence of a particular defendant? 

A I don't think 80, I really font, I think I would 

have to weigh everything, 

BR. PARKER; Thank you, ma'am. 

 



  
vn . tn ne —y 

C Ma'am have you read or heard anything about the 

robbery at the Dixie Purniture Store and the officer who was 

shot? 

A Vell, I guess everybody that has a TV has heard 

about it, but not nothing other than just that it happened. 

Q 2s a result of hearing or reading about that, di¢ 

you for: any opinions or attitudes about the guilt or innocence 

of anyone fhvolved in the cease? 

J 3 Well, I don't think I have reac that much. I just 

read about it, and as I say, I work and then 1 come hore and 

I have my housework to 60, so I don't have time to dc a lot of 

reading, you know, other than just what I hear while we are 

eating supper on the six o'clock news. 

C wWoulé you have any problem in sitting on this case? 

Do you know of any reason why you can't sit on it as a fair and 

izparisl juror? 

FA loc, No, I have no deadlines to meet anywhere. Hy 

boss says, Ckay, you are on jury duty, you are off, sc that is 

all. 

MR, TURNER: Thank you, ma'am, 

THE COURT: Mrs. Eickey, don't discuss this case or 

any aspect of the case with your fellow jurors, and you 

may retire to the jury room. 

{¥heroupon, the juror was szcused from ths cOurt- 

 



      

name, please stand and remain standing until both sides 

have an opportunity tc pass upon you. 

Philip S. Morris. 

MK, 

MR. 

TEE 

THE 

KR. 

MEK. 

THE 

THE 

PARKER: 

TURNERS 

CLERKS 

PARKER: 

CLERKS 

PARKER? 

TURNERS 

CLERK: 

PARKER: 

“URKNEK] 

CLERK: 

PARKEN: 

TURNERS 

CLERK? 

PARKER: 

The State will accept Hr. Morris, 

Excused by the defendant, 

¥rz., Doris fF, Walters. 
—— 

The State will excuse Mrs, Walters. 

  

  

we E., Marshall, Jr. 

The State will accept Mr. Marshall. 

Excused by the defendant. 

Mrs. Lucile Shively. 

The State will accept Hrs. Shively, 

Excused by the defendant. 

leonard Larson. 

The State will accept Mr. Lerson. 

Excused by the defendant. 

Edna Walls. 
  Thay 

The State will excuse Mrs, Walls. 
  

_ as 

  — 

CLERK}: (ses. marguerite P. Bohler) 
  

-16B~ 

 



| 

| 
E 

k 
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h 
E 
: 

B 

MR. 

FF. 

TERE 

HR, 

PARKER 

TURKER: 

CLERK: 

PARKER: 

TURNEKS 

£ CLERK: 

PAKKER: 

TURKER: 

TURKER3 

CLERK: 

PARKER: 

TUREER: 

CLERK: 

PARKER: 

TURNER: 

  

The State will accept Mrs, Bohler, 

Acceptable to the defendant, 

nald O. Hudgins.) 

  

  

The Btate will accept Mr. Hudgins, 

hcceptable to the detendant, 

Mrs, Mildred Glover. 

The State will accept Hrs. Glover. 

Excused by the defendant. 

wo we ae 

aul J. Reale.) 

  

  

The Btete will accept Hr. Reale, 

heeceptable to the defendant, 

John HK, Bolder. 

The State will accept Kr. Holder. 

Excused by the defendant. 

-_ Ww = 

Wayne F, Martin. 

The State will accept Mr. Martin, 

Excused by the defendant, 

  — 

CLERK: Covers 5. saaiisen) 

PARFER: 

  

The State will accept Mr, Hamilton, 

=165=- 

 



    
Tod = 
4 = 

5 

MR, TURNER: Acceptable to the defendant, 

  

THE CLERK: \Mrs. Carolyn J. Ballard, 
  

MR. PARKER: The State will accept Hrs, Ballard, 

MR, TURNER: Mrs. Ballard is acceptable to the 

defendant, 

TiiL CLERK: Mrs. Mildred Moore, 

MR. PARKER: The State will accept Hrs. Moore. 

MR. TURKER: Excused by the defendant. 

THE CLERK: Robert E. Bmith. 

FE. PARKER: The State will accept Br. Smith, 

KR. TURNER: Excused by the defendant. 

THE CLERK: #rs. Florence k, #Hobley. 

  

  

N- MR, PARKER: The Btate will excuse Mrs. Mobley. 

THE CLERK: James L. Kimball. 

MR, PAREER: The State will accept Hr. Kimball. 

MR. TUKRER: Excused by the defendant, 

- oa 

—— 

THE CLERK: (Robert L. Nagl 

MR, PARKER: The State will accept Mr. Hagle., 

  

  

MR TURNER: Acceptable to the defendant. 

=178= 

 



MR. 

  
- aw ew 

  

CLERK: Coonald 6. Gosden 

PARKER: 

TUKKER: 

CLEREK: 

PARKES 

THE TIRE T 

TURNER? 

CLERK: 

FARKKER$ 

PARKER: 

TURNERS 

CLERK: (Firs. Marianne We. 

PARKES 

CLERK: 

PARKER: 

TURKER: 

CLERK: 

  

The Btate will accept Mr. Gosden, 

Acceptable to the defendant. 

Robert CC. Sears. 

The State will accept Mr. Searc. 

Excused by the defendant, 

Miss Jessie Horne. 

The State will excuse Kiss Horne, 
  

  

(irs. agnes Ca avtrey) 
  

The State will accept Mrs. Awtrey. 

Acceptable to the defendant. 

  

Hasher/ 
  

ihe State will accept NMreg, Nasher, 

Acceptable to the defendant. 

Odell Watkins, Jr. 

The State will accept Mr. Watkins, 

Excused by the defendant, 

Rollin C. Sharpe ® 

 



      

MER, 

MR. 

bo Pr
t,
 

7
 

MEK. 

THE 

MR. 

MR, 

PAKKERK?S 

TURNER: 

CLERK: 

PARKE¥: 

The State will accept Mr. Sharpe. 

Excused by the defendant, 

Miss Carol A. James, 

The State will accept Miss Janes, 

Excused by the defendant. 

Fa John MceCadden., 

  

  

  

PARKER: The State will excuse Mr. McCadden, 

CLERK: (Fobvert F. Burnette) 

PARKER: The State will accept Mr. Burnette, 

TURKER: Acceptable to the defendant. 

CLERK: 

PARKER: 

TURKER: 

Firs. Clifford L. lautton, Jr. 

The State will excuse Mrs. lutton., 
  

Dorothy Brith, 

State wil. accept Mrs, Smith. 

Excused by the defendant. 

  

CLERK? (irs. mary G. Sarees) 

PARKER 

TURNER: 

  

The State will accept Mrs. Darmer, 

Acceptable to the defendant, 

wl72=  



  

RY
 
A
 

pa
d 

c
p
 

  

THE CLERK: 

MR, 

TEE 

THE 

AR, 

HR. 

THE CLERK: The following four jurors will be called 

PARKER: 

CLEEK: 

PARKER: 

PION 
TURNER: 

CLERK: 

PLRKER: 

CLERK: 

PARKER: 

TURKER: 

Mrs. Waldtraut &, Lavroff. 

The State will excuse lrs. Lavroff. 
rq —   

Joseph C, League, Jr. 

The State will accept Mr. League. 

kExcusec by tne cefendant. 

  

  

Mrs. Euzanne HE. Kilgc. 

The State will excuse Mrs. Kilgo. 

Joseph Dene, 

The State will excuse ¥r. Dane. 

Willian A, Lane. 

The Etate will accept Kr. Lane. 

he cefendant, 

The State will accept Hr. Bason. 

Excused by the defendant. 

———_ 
  

CLERK: Mra. B, H, Eickey) 

PARKER: 

TURNER: 

  

The State will accept Mrs. Hickey. 

Acceptable by the defendant, 

-]?3= 

 



  

for the purpose of selection of the first alternate. 

first 

Patricia Dukes, That's Juror hKumber 107. 

#¥R. PAERER: 

THE CLERK: 

MR. PARKER: 

HR. TURNER: 

THE CLEKX: 

HR. PARKER: 

KR. TURNEK: 

THE CLERK: 

alternate, 

The Btate will excuse Ms. Dukes, 

Willard E. Beavers. 

The State will accept Hr. Beavers. 

Excused by the defendant. 

William J. Creene, Jr. 

The State will accept Hr. Greene. 

Excused by the defendant. 

John M. Abernathy, Jr., will be the 

The next four jurors will be called for the purpose 

of selecting the second alternate. SG 

a
a
n
 

  

  

Mrs, Mary J. 

MR. PARKER: 

THE CLERK: 

MR, PARKER: 

KR, TURKER: 

TEE COURT: 

o£ SE twelve jurors and 

names and you are 

COX. 

The Btate will excuse Mrs. Cox. 
  

Ordney CC, Baldwin. 

The State will accept Mr. Baldwin, 

Acceptable to the defendant. 

All right, gentlemen, we have our 

two alternates, We didn't reach your 

excused until in the morning at 9130. pon 

~174=