Barnette v. USA

Filing 50

ORDER denying 49 Motion for Permission to Interview Trial Jurors. Signed by District Judge Richard Voorhees on 7/18/13. (smj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12cv327-V
(3:97cr23)
AQUILIA MARCIVICCI BARNETTE,

)
)
Petitioner,
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
______________________________________)

ORDER

THIS MATTER is before the Court upon Petitioner Aquilia Marcivicci Barnette’s
Motion for Permission to Interview Trial Jurors. (ECF No. 49.) Petitioner seeks to interview
jurors from his 1998 criminal trial and 2002 sentencing trial “to aid . . . in the factual
development of § 2255 claims relating to juror misconduct and ensure that [his] death sentence
was not the product of juror bias or outside influence.” (Motion 1, ECF No. 49.)
Petitioner contends that good cause exists to conduct juror interviews because there is
evidence in the record that some jurors in his 2002 sentencing trial had formed opinions about
whether Petitioner should receive the death penalty prior to receiving the Court’s final
instructions. (Motion 4, ECF No. 49.) Petitioner refers to comments made by a juror to an
alternate juror that seemed to indicate that the juror may have made up his mind about the
appropriate sentence for Petitioner prior to hearing all of the evidence. The alternate juror
brought the matter to the Court’s attention, and the Court conducted an inquiry on the record.
(3:97cr23, 2002 Sent. Tr. 3667-82.) When questioned, the alternate juror stated that during a
break near the end of the previous day, one juror, whom he could not identify, made remarks

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indicating that he did not believe the testimony of a witness for the defense and that he was ready
to decide Petitioner’s sentence. (3:97cr23, 2002 Sent. Tr. 3669, 3671.) None of the other jurors
responded, and the alternate juror could not be sure that anyone other than himself had heard the
juror’s comments. (3:97cr23, 2002 Sent. Tr. 3672.) The alternate juror also stated that the jurors
had not discussed the case or evidence amongst themselves. (3:97cr23, 2002 Sent. Tr. 3669-70.)
After questioning the alternate juror, the Court brought the entire jury in, asked if anything had
happened during the course of the trial to impair anyone’s ability to be a fair and impartial juror,
and re-instructed the jury on beginning deliberations prematurely, listening to or reading
anything about the trial, discussing the case with other jurors or anyone outside the jury, and
having contact with anyone involved in the trial. (3:97cr23, 2002 Sent. Tr. 3682.)
“Requests to impeach jury verdicts by post-trial contact with jurors are disfavored.”
United States v. Gravely, 840 F.2d 1156, 1159 (4th Cir. 1988) (citing Tanner v. United States,
483 U.S. 107 (1987)). Rule 606(b) of the Federal Rules of Evidence reflects that fact by
prohibiting the use of juror testimony to impeach a verdict except with regard to whether the jury
or a juror was exposed to extraneous prejudicial information or outside influence.1 “Extraneous
prejudicial information [is] information that was not admitted into evidence but nevertheless
bears on a fact at issue in the case.” Robinson v. Polk, 438 F.3d 350, 363 (4th Cir. 2006)
(citations omitted). An “outside influence” is communication or contact between a juror and
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Federal Rule of Evidence 606(b)(1) states that, “[d]uring an inquiry into the validity of a verdict or indictment,”
a juror may not testify about any statement made or incident that occurred during the jury’s
deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental
processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or
evidence of a juror’s statement on these matters.

A juror may testify, however, about whether “extraneous prejudicial information was improperly brought to the
jury’s attention;” “an outside influence was improperly brought to bear on any juror;” or “a mistake was made in
entering the verdict on the verdict form.” Fed. R. Evid. 606(b)(2).

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non-juror that influences the partiality of the juror or jury. See id. (citations omitted). To obtain
permission to interview jurors after the verdict, “a § 2255 movant must make a threshold
showing of improper outside influence.” United States v. Roane, 378 F.3d 382, 404 (4th Cir.
2004) (holding that district court did not abuse its discretion in denying motion to interview
jurors where § 2255 movants failed to proffer any evidence that jurors engaged in misconduct or
were improperly exposed to outside influences) (citing Gravely, 840 F.2d at 1159) (holding that
district court did not abuse its discretion in denying post-verdict motion to interview jurors where
defendant had made no threshold showing of improper outside influence)).
The unidentified juror’s pre-deliberation remarks in this case do not fall into the category
of “extraneous, prejudicial information or outside influence” necessary to justify juror
interviews. See Roane, 378 F.3d at 404; Robinson, 438 F.3d at 363; see also United States v.
Morales, 655 F.3d 608, 631 (7th Cir. 2011) (“Any inquiry as to bias arising from . . . alleged
premature deliberations would run afoul of [Rule 606(b)’s] clear proscription [against postverdict juror testimony regarding] ‘the effect of anything upon that or any other juror's mind or
emotions as influencing the juror to assent to or dissent from the verdict ... or concerning the
juror's mental processes in connection therewith.’”) (quoting Fed. R. Evid. 606(b)); United States
v. Logan, 250 F.3d 350, 380–81 (6th Cir. 2001), abrogated on other grounds by Fed. R. Evid.
408 (2006) (holding that premature deliberations constituted an internal jury influence subject to
the post-verdict restrictions of Rule 606(b)); United States v. Caldwell, 83 F.3d 954, 956 (8th
Cir. 1996) (holding that juror statements “I've heard all of this I need to hear” and “this is just a
bunch of crap,” overheard by a nonjuror during the trial were intrajury communications which
could not be used to impeach the jury’s verdict). Moreover, the juror’s remarks came seven days

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into the sentencing trial and, according to the alternate juror, appeared to have been a reaction to
testimony which immediately preceded it. (3:97cr23, 2002 Sent. Tr. 3671.) “The concern with
bias is that a juror will decide a case on the basis of a pretrial predisposition against the interest
of a party rather than on the basis of the evidence presented during the trial.” United States v.
Gianakos, 415 F.3d 912, 923 (8th Cir. 2005). There is no evidence that the unknown juror had
any prior bias against Petitioner or that he acquired any extrinsic information prejudicial to
Petitioner. Consequently, Petitioner has failed to make the threshold showing necessary to
support his Motion, and it will be denied. See Roane, 378 F.3d at 403-404 (rejecting § 2255
movants’ argument that district court abused its discretion in denying their juror misconduct
claims without first granting them leave to interview the jurors).
IT IS, THEREFORE, ORDERED that Petitioner’s Motion for Permission to Interview
Trial Jurors (ECF No. 49) is DENIED.
Signed: July 18, 2013

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