Friday, May 15, 2009
In Hunter v. Felker, 2009 WL 1246691 (N.D. Cal. 2009), David Hunter brought a federal habeas action in the United States District Court for the Northern District of California, seeking relief from his convictions for assault with a firearm and being a felon in possession of a firearm. Hunter, however, ran into a popular obstacle on this blog: Federal Rule of Evidence 606(b).
In Felker, the chief witness for the prosecution was David Devlin. According to Devlin, "a street-level drug dealer,"
[Hunter] and co-defendant Victor Hernandez called [Devlin] at his girlfriend's residence in San Leandro during the early morning hours of April 10, 2003, and arranged to purchase methamphetamine. They all met at the residence and they moved to the backyard. [Devlin] gave Hernandez a half-ounce bag of methamphetamine to inspect. Hernandez made some comments about the drugs while [Hunter] excused himself to urinate. [Hunter] walked towards a nearby fence. Moments later, [Hunter] returned pointing what appeared to be a semiautomatic pistol at [Devlin], ordering him to hand over his money. [Devlin] instead rushed [Hunter] and wrestled with him. [Hunter] fired his gun twice, missing [Devlin]. While the two continued to wrestle, they moved closer to a gazebo. [Devlin] threw [Hunter] into the gazebo, causing [Hunter] to fall to the ground. [Devlin] got on top of [Hunter] and began hitting him. Hernandez then walked toward them with a handgun and fired once at [Devlin], striking him in the left buttock. [Devlin] let go of [Hunter], who then fled with Hernandez over the fence into a nearby apartment complex.
The only other eyewitness was
14-year-old Eli Mahoney who lived with his mother in the residence where the shooting took place. He recalled hearing an argument, followed by a demand from [Hunter] to "give me your money." Eli Mahoney saw [Hunter] and [Devlin] "punching each other" while Hernandez pulled out a gun and fired it three times at [Devlin]. Eli Mahoney testified he did not see [Hunter] with a gun, although he "wasn't really looking at him."
As noted above, Hunter was convicted of assault with a firearm and being a felon in possession of a firearm, but Hunter was also charged with robbery with the court declaring a mistrial on that count based upon the jury deadlocking. The jury found Hunter guilty under an aiding and abetting theory after the court gave a jury instruction that ended as follows:
You are not required to agree unanimously as to what, as to which originally contemplated crime the defendant aided and abetted so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted in the commission of and [sic] identified and defined target crime, and that crime [sic] assault with a firearm was a natural and probable consequence of the commission of that target crime.
According to Hunter, this last
paragraph improperly failed to require unanimity as to the target offense, and that the deadlock on the robbery charge (which was identified in the first quoted paragraph) left the jury able to find him guilty based on any crime or even noncriminal activity, i.e., he contends he could have been held liable based on an assault with a firearm that was a natural and probable consequence of any unidentified crime or even noncriminal activity.
The court, however, found no problem with this instruction, which led Hunter to seek the evidentiary hearing to prove that, regardless of the propriety of the instruction, jurors convicted him under an impermissible aiding and abetting theory. The problem for Hunter, however, was Federal Rule of Evidence 606(b), which precludes jurors from impeaching their verdicts based upon anything internal to the jury deliberation process, such as misunderstood jury instructions or even misapplications of the law. Therefore, even if the juror misunderstood the instruction or misapplied the law, Hunter could not get relief.