F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 18 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
KENNETH A. CREASE,
Petitioner-Appellant,
vs. No. 98-3240
DAVID McKUNE; ATTORNEY
GENERAL OF KANSAS,
Respondents-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 96-3085-DES)
David J. Gottlieb, University of Kansas School of Law, Kansas Defender Project,
Lawrence, Kansas, for Petitioner-Appellant.
Jared S. Maag, Assistant Attorney General (Carla J. Stovall, Attorney General,
with him on the brief), Topeka, Kansas, for Respondents-Appellees.
Before SEYMOUR, Chief Judge, TACHA, and KELLY, Circuit Judges.
KELLY, Circuit Judge.
Kenneth Crease, a state prisoner who appeared pro se in the district court
but is now represented by counsel, seeks to appeal from the district court’s denial
of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
(1994). 1 The district court also denied a certificate of probable cause. Mr.
Crease asserted that an ex parte conversation between a state trial judge and a
juror violated his federal right to be present at all critical stages of his trial. Our
jurisdiction arises under 28 U.S.C. § 2253, and we grant a certificate of probable
cause and deny the writ.
Background
After a two month trial, including voir dire, in the District Court of
Sedgwick County, Kansas, Mr. Crease was convicted in January 1981 of three
counts of burglary, four counts of aggravated burglary, five counts of theft, and
two counts of felony murder. During one of the burglaries perpetrated by Mr.
Crease and one or more companions, a sleeping couple was shot and killed.
Although it is unclear who did the actual killing, Mr. Crease was aware that one
of his companions carried a gun into the home. He was sixteen years old at the
time the crimes were committed, but was certified to stand trial as an adult.
During jury deliberations, an ex parte conversation occurred between the
trial judge and one (or possibly two) juror(s). It is this conversation which Mr.
Crease asserts as the basis for this habeas action. The facts of the conversation
1
The amendments to § 2254 under the Anti-Terrorism and Effective Death
Penalty Act of 1996 do not apply because Mr. Crease filed his petition prior to the
date of its enactment.
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are set out most fully in Crease v. State, 845 P.2d 27, 30-33 (Kan. 1993), and we
summarize to the extent necessary to explain our holding.
Jury deliberations began on January 5, 1981 and continued until January 7.
Sometime during the morning of January 7, a juror, Stephanie Brinkley,
approached the bailiff and asked to see Judge Ray Hodge. Judge Hodge allowed
the bailiff to bring Ms. Brinkley (and possibly another juror, Barbara
Poppenhagen) into his chambers. 2 Neither counsel nor Mr. Crease was present.
Ms. Brinkley was troubled by the felony murder rule – later recalling that “I
couldn’t deal with the fact that he was going to be tried for murder even though
he didn’t commit the act himself,” III R. at 59 (District Court of Sedgwick
County, Kansas, February 19, 1991) – and told the judge that she wanted to be
excused as a juror. See id. at 61-62, 66. According to Ms. Brinkley, Judge
Hodge reread some of the jury instructions to her. He said that she was to “use
the evidence that was presented in court during the trial and base [her] decision[]
upon that.” Id. at 62. He also informed her that, under the felony murder rule in
Kansas, “when a felony is committed, you’re just as guilty as if you actually did it
yourself.” Id. at 63. According to Judge Hodge, he “admonished her according to
the jury instructions that she cannot allow prejudice and sympathy to enter into
2
Although we acknowledge that there is evidence that two jurors spoke
with the judge, we hereinafter refer only to Ms. Brinkley.
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her deliberation.” Id. at 143-44.
Ms. Brinkley left Judge Hodge’s chambers feeling that she was “just not
going to be released” from jury duty, id. at 78; she still did not “know for sure
[how she was] going to vote one way or another.” Id. at 66. Her state court
testimony indicated that nothing said in chambers prejudiced her against Mr.
Crease, see id. at 76; she did not feel that the judge was saying what the verdict
should be, see id. at 66; and she felt no pressure from the judge to vote to convict
Mr. Crease. See id. at 75. According to Ms. Brinkley, when she returned to the
jury room, she said nothing of her conversation with the judge; the other jurors
were not aware that she had spoken with him. See id. at 64; see also id. at 194,
198, 202. However, the jury foreman remembered Ms. Brinkley being distraught
when she returned from the judge’s chambers; she asked him if she had to vote
guilty according to the instructions, and he said that they must follow the
instructions given to them. See id. at 97.
Immediately after his conversation with Ms. Brinkley, Judge Hodge called
the attorneys into his chambers. Mr. Crease was not present. After informing the
attorneys of the conversation, he recommended that Ms. Brinkley be questioned to
determine her ability to proceed as a juror. See V R. at 2-3 (District Court of
Sedgwick County, Kansas, January 7, 1981 (filed February 20, 1991)). Defense
counsel objected to such questioning for strategic reasons:
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I felt that it would be wise not to challenge her . . . as it was a very
difficult, very long case. And my defense was basically sympathy, as
we had a turncoat [juror] . . . . I felt she was my juror in the case,
and it would be wise to leave her on.
III R. at 9.
In the early afternoon, after her ex parte conversation with the judge, Ms.
Brinkley submitted the following question in writing:
If it is already pre-determined (it seems) that the defendant is guilty
of a crime, whether or not he actually committed the particular act or
not, do we as jurors really have a choice in the matter as to whether
he is to be judged (by us) guilty or not guilty[?]
The State tried to prove he was in the basement and actually
committed the act. The defense says otherwise. Are we bound by
[Instruction] 21[?] Do we have a choice?!
Crease, 845 P.2d at 30. Instruction 21 provided: “A person is criminally
responsible for the conduct of another when, either before or during the
commission of a crime, and with the intent to promote or assist in the commission
of the crime, he intentionally aids or advises the other to commit the crime.” Id.
Shortly after 1:35 p.m., Judge Hodge responded orally in open court to the entire
jury:
To answer that question it is contained in the written Instructions in
Instruction Number 1. I will read a portion of that to all of you
again.
“Members of the Jury: It is my duty to instruct you in the law
that applies to this case and it is your duty to follow the Instructions.
You must not single out one or more Instructions and disregard
others. You should construe each [In]struction in the light of and in
harmony with the other Instructions, and you should apply the
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Instructions as a whole to the evidence.”
Id. The jury resumed its deliberations and reached a verdict at 4:50 p.m.
Although Ms. Brinkley did not agree philosophically with the felony
murder instruction, see III R. at 67, she testified that she eventually voted to
convict because of pressure from other jurors who wanted to “hurry up and get
finished.” Id. at 74; see id. at 64-65. In spite of this pressure, Ms. Brinkley was
not the only juror to have difficulty with the felony murder rule. According to
another juror, the whole jury was troubled by the rule and at various times all
voted not guilty, see id. at 207; the turning point came when Judge Hodge
responded in court to Ms. Brinkley’s question. See id. at 208-10.
Mr. Crease’s conviction was affirmed on direct appeal. See State v.
Crease, 638 P.2d 939 (Kan. 1982). However, Mr. Crease did not challenge the ex
parte conversation because neither he nor appellate counsel was aware of it. The
court reporter present at the meeting between Judge Hodge and the attorneys was
not the same reporter present during the trial. The transcript ordered for Mr.
Crease’s direct appeal did not include the conference in chambers. This
conference was not transcribed until January 4, 1991.
In August 1988, after learning of Judge Hodge’s conversation with Ms.
Brinkley, Mr. Crease collaterally attacked his sentence pursuant to Kan. Stat.
Ann. § 60-1507, arguing that he was denied his right to be present at all critical
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stages of the trial. Judge Hodge did not allow an evidentiary hearing and
dismissed the § 60-1507 motion. However, the court of appeals reversed and
remanded with directions to hold an evidentiary hearing. That hearing was held
in February 1991 before Judge Karl Friedel. After hearing the testimony, Judge
Friedel held that the ex parte conversation was error, but ruled that the error was
harmless. This ruling was affirmed by the court of appeals and the Kansas
Supreme Court, the latter specifically holding that “the error was harmless beyond
a reasonable doubt.” Crease, 845 P.2d at 35.
Mr. Crease filed his federal habeas petition on February 14, 1996. The
district court applied a plain error standard of review because no
contemporaneous objection to the ex parte conversation was made and denied the
writ because it could not conclude that a miscarriage of justice had occurred. Mr.
Crease appeals, arguing that (1) the district court erred by failing to review the ex
parte conversation for harmless error, and (2) the state cannot meet its burden of
showing that the conversation was harmless.
A. Standard of Review
It is undisputed that the ex parte conversation violated Mr. Crease’s federal
right to be present at all critical stages of his trial. This right arises out of the
Confrontation Clause of the Sixth Amendment and protected by the Due Process
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Clause. See United States v. Gagnon, 470 U.S. 522, 526 (1985); Rushen v. Spain,
464 U.S. 114, 117 (1983). Mr. Crease argues that the district court erred by
reviewing the effect of the conversation for plain error rather than harmless error.
Relying on United States v. McDonald, 933 F.2d 1519, 1524 (10th Cir. 1991), the
district court applied a plain error analysis because Mr. Crease’s trial counsel
failed to object to the ex parte conversation. We agree with Mr. Crease that the
district court used the wrong standard of review.
Initially, we note that the rule of procedural default in habeas cases “is
grounded in concerns of comity and federalism; it is not jurisdictional.” Jackson
v. Shanks, 143 F.3d 1313, 1317 (10th Cir.), cert. denied, 119 S. Ct. 378 (1998).
As the Supreme Court explained in County Court of Ulster County v. Allen, 442
U.S. 140, 154 (1979), if state courts do not “indicate that a federal constitutional
claim is barred by some state procedural rule, a federal court implies no
disrespect for the State by entertaining the claim.” Where the last state court to
consider the federal constitutional claim decides it on the merits, state procedural
bar is inapplicable. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). When
Mr. Crease brought his Sixth Amendment claim to the state courts on collateral
review, none of the courts refused to hear the claim based on the failure to object,
but instead decided the issue on the merits. The Supreme Court of Kansas found
that there were exceptional circumstances which excused Mr. Crease’s failure to
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raise the issue on direct appeal, including the fact that Mr. Crease was never
informed of the ex parte conversation by trial counsel, and the meeting between
the judge and trial counsel was not transcribed until well after the appeals period.
Thus his appellate counsel was not aware of the conversation. The court affirmed
the state district court’s finding that the trial court erred and yet held that the
error was harmless. We may not rely on a procedural rule upon which the Kansas
courts did not rely. See Shanks, 143 F.3d at 1319. The district court’s reliance
on McDonald was misplaced, as that case involved a direct appeal from a federal
conviction, rather than a habeas petition.
B. Harmless Error
Mr. Crease argues that the state cannot meet its burden of showing that the
ex parte conversation was harmless. When reviewing a state court determination
in a habeas corpus proceeding, a federal court should not grant relief unless the
court finds that the trial error “‘had substantial and injurious effect or influence in
determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 637
(1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see
Calderon v. Coleman, 119 S. Ct. 500, 504 (1998); Crespin v. New Mexico, 144
F.3d 641, 649 (10th Cir. 1998). An error does not have a substantial and
injurious effect on a jury verdict unless “it resulted in ‘actual prejudice’” to the
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habeas petitioner. Brecht, 507 U.S. at 637. “The inquiry cannot be merely
whether there was enough to support the result, apart from the phase affected by
the error. It is rather . . . whether the error itself had substantial influence.”
Kotteakos, 328 U.S. at 765. If a reviewing court is in “grave doubt” as to the
harmlessness of an error, the habeas petitioner must win. See O’Neal v.
McAninch, 513 U.S. 432, 436 (1995); California v. Roy, 519 U.S. 2, 5 (1996). A
judge is in “grave doubt” when, “in the judge’s mind, the matter is so evenly
balanced that he feels himself in virtual equipoise as to the harmlessness of the
error.” O’Neal, 513 U.S. at 435. Thus, the risk of doubt is placed upon the state.
See id. at 438-39.
Mr. Crease asserts that we must presume prejudice from the ex parte
conversation. We disagree. In a federal prosecution of a criminal defendant,
“any private communication, contact, or tampering directly or indirectly, with a
juror during a trial about the matter pending before the jury is . . . deemed
presumptively prejudicial.” Remmer v. United States, 347 U.S. 227, 229 (1954);
see United States v. Scisum, 32 F.3d 1479, 1482 (10th Cir. 1994) (applying
Remmer presumption to ex parte juror contact with trial judge). “The
presumption is not conclusive, but the burden rests heavily upon the Government
to establish, after notice to and hearing of the defendant, that such contact with
the juror was harmless to the defendant.” Remmer, 347 U.S. at 229. We disagree
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that Remmer established the rule that any ex parte communication with a juror
presumptively deprives a criminal defendant of due process under the Fourteenth
Amendment. To the contrary, it is established that “the mere occurrence of an ex
parte conversation between a trial judge and a juror does not constitute a
deprivation of any constitutional right.” United States v. Gagnon, 470 U.S. at 526
(quoting Rushen v. Spain, 464 U.S. 114, 125-26 (1983)). We view the Remmer
presumption as a rule of federal criminal procedure, rather than a rule of federal
constitutional law. Unlike Remmer and Scisum, both of which were direct
appeals, Mr. Crease’s claim is before us in the context of a collateral attack on a
state conviction and sentence. Interests of comity and federalism, as well as “the
State’s interest in the finality of convictions that have survived direct review
within the state court system,” mandate a more deferential standard of review in
evaluating Mr. Crease’s claim. Brecht, 507 U.S. at 635; see Pyles v. Johnson, 136
F.3d 986, 992 (5th Cir.), cert. denied, 118 S. Ct. 2338 (1998); Bibbins v.
Dalsheim, 21 F.3d 13, 16 (2d Cir. 1994).
We defer to factual findings made by state courts in habeas actions.
According to the applicable portion of § 2254 in effect when Mr. Crease filed his
habeas petition, “a determination after a hearing on the merits of a factual issue,
made by a State court of competent jurisdiction . . . shall be presumed to be
correct” unless one of eight enumerated circumstances is established. 28 U.S.C. §
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2254(d) (1994). “The substance of the ex parte communications and their effect
on juror impartiality are questions of historical fact entitled to this presumption
[and the state courts’ findings] must be . . . deferred to, in the absence of
‘convincing evidence’ to the contrary, by the federal courts.” Rushen v. Spain,
464 U.S. 114, 120 (1983). We defer to the state court’s findings because the
resolution of these questions “depends heavily on the trial court’s appraisal of
witness credibility and demeanor.” Thompson v. Keohane, 516 U.S. 99, 111
(1995).
Having reviewed the record, we find no convincing evidence that Mr.
Crease was prejudiced by the ex parte conversation. Ms. Brinkley testified that
Judge Hodge’s statement did not prejudice her against Mr. Crease, that she did
not feel he indicated to her how to vote, and that she felt no pressure from the
judge to vote to convict. She left his chambers still undecided what to do and
finally voted to convict after feeling pressure from other jurors. Although Ms.
Brinkley felt that, after her conversation with the judge, she had “no recourse
other than to vote guilty,” III R. at 76, this was due to the overwhelming evidence
of Mr. Crease’s participation in the burglary and the law in Kansas regarding the
felony murder rule, not to pressure from the judge. We note here that there is no
right to jury nullification. See United States v. Thomas, 116 F.3d 606, 615 (2d
Cir. 1997) (stating that “the power of juries to ‘nullify’ or exercise a power of
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lenity is just that—a power; it is by no means a right or something that a judge
should encourage or permit if it is within his authority to prevent”); United States
v. Powell, 955 F.2d 1206, 1213 (9th Cir. 1992) (defendants not entitled to jury
nullification instructions).
The evidence indicates that the entire jury had difficulty with the felony
murder rule as applied to Mr. Crease and that, throughout the deliberations,
different jurors wanted to acquit Mr. Crease of the felony murder charges.
However, the turning point came not from Ms. Brinkley’s ex parte conversation
with the judge, but from Judge Hodge’s response to Ms. Brinkley’s question in
open court. The judge’s response included the unassailable direction that the jury
must follow the instructions and apply them as a whole to the evidence.
Thereafter, the jurors agreed that they must convict Mr. Crease of felony murder
because he had admitted breaking into the house. See III R. at 209-10. Thus, we
are unable to find that the ex parte conversation had a substantial and injurious
effect or influence in determining the jury’s verdict.
Because Mr. Crease has made a substantial showing of a denial of a federal
right, see Barefoot v. Estelle, 463 U.S. 880, 893 (1983), we GRANT a certificate
of probable cause. See 28 U.S.C. § 2253 (1994). However, for the reasons set
forth above, we AFFIRM the district court’s judgment.
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