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Univ. of South Carolina School of Law

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Saturday, September 3, 2011

Pretty Intimidating: Tenth Circuit Denies Appealability Petition In Jury Intimidation Case

Similar to its federal counterpart, Colorado Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurors' attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

In its recent opinion in Selectman v. Zavaras, 2011 WL 3805614 (10th Cir. 2011), the Tenth Circuit denied a petition for a Certificate of Appealability to challenge the district court's denial of the petitioner's petition for writ of habeas corpus. And while I don't disagree with the court's conclusion, I wonder why the Colorado appellate courts did not previously award the petitioner a new trial based upon jury impeachment that was admissible under an exception to Rule 606(b).

In Selectman, Christopher Selectman,

who was sixteen years old at the time, and two other individuals telephoned McKinley Dixon to purchase marijuana and arranged to meet Dixon in person to complete the transaction....While the precise events that transpired during the meeting were "disputed at trial," several witnesses testified that Selectman "pull[ed] a gun."...At some point during the encounter, Dixon was shot and killed.

After a jury trial, Selectman was convicted of murder in the first degree (felony murder), murder in the second degree, and attempt to commit aggravated robbery. Thereafter,

Selectman filed a motion for new trial....In his motion, Selectman "assert[ed] that the jury's verdict must be vacated because there was a reasonable possibility that extraneous influences and extraneous information affected the verdict."...The motion identified that "[Juror H] was confronted and cursed at by a member of the victim's family," that another juror "had come into contact [in a courthouse elevator] with a group of individuals [from] the prosecution side of the courtroom during the trial" making "negative comments regarding the proceedings," and that "most, if not all, members of the jury were advised [of these contacts] prior to...deliberations."...Further, the motion indicated that jurors "considered extraneous and prejudicial information regarding gang tattoos and speculated as to possible gang overtones connected to the case."...After a hearing, the trial court denied the motion....On May 6, 1996, the trial court sentenced Selectman to life in prison without parole.

After he was convicted, Selectman appealed, and the Court of Appeals denied his appeal and the Supreme Court of Colorado denied certiorari review, prompting Selectman's petition for writ of habeas corpus. By the time Selectman's case reached the Tenth Circuit, the court was merely deciding whether Selectman received the ineffective assistance of counsel in connection with his jury claims, and the court found that he did not:

With regard to Selectman's claim that his counsel failed to obtain thorough statements from certain jurors—Juror M, Juror H, and Juror T—regarding the intimidating incidents, the state court record indicates that counsel investigated the events, submitted a motion for new trial based on the investigation, and supported the motion with affidavits from certain jurors and the defense investigator that interviewed the jurors. In fact, counsel supported the motion with affidavits from Juror M, Juror H, and Juror T....These affidavits documented that a member of the victim's family "swear[ed] at" Juror H in a parking lot and that the jurors discussed this incident, that another juror came into contact in a courthouse elevator with a "group of people from the prosecution side of the court room [who were]...making negative comments about the case" and that this was discussed among the jurors, and that jurors discussed a gang related tattoo they observed on the victim's arm in photographs presented at trial....These affidavits further indicated that "[s]ome of the jurors were intimidated by this information."...Thus, although Selectman contends that counsel failed to obtain the precise statements made to the jurors or the context in which these contacts occurred, the CCA reasonably concluded that counsel's performance was constitutionally adequate.

As I noted above, I agree with the Tenth Circuit's conclusion, and the reason I agree is that it seems as if Selectman's counsel performed adequately. My question is why the Court of Appeals of Colorado reversed and the Supreme Court of Colorado denied cert.

The evidence clearly indicates that there were improper outside influences upon the jurors and that the jurors who were subjected to these influences were intimidated by them and discussed them with other jurors. I'm not sure that the gang tattoo ws extraneous prejudicial information because the photograph was properly introduced at trial, but the photo and the ensuing discussion merely seems to corroborate the claim that jurors were deliberating in a state of fear and intimidation. Now, maybe the evidence against Selectman was so overwhelming that none of this mattered, and, unfortunately, I don't have access to any substantive discussion of Selectman's case in the Colorado courts. That said, based upon what transpired, it certainly seems to me that a new trial esily could have been warranted for Selectman.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/09/606b-intimidate-selectman-v-zavarasslip-copy-2011-wl-3805614ca10-colo2011.html

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