Brown v. Bradshaw

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0224p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioner-Appellant, -

MARK A. BROWN,

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No. 06-3482

v.

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MARGARET BRADSHAW, Warden, -

Respondent-Appellee. -

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Appeal from the United States District Court

for the Northern District of Ohio at Youngstown.

No. 04-01727—John R. Adams, District Judge.

Argued: April 29, 2008

Decided and Filed: June 26, 2008

Before: SILER, BATCHELDER, and SUTTON, Circuit Judges.

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COUNSEL

ARGUED: George C. Pappas, Akron, Ohio, for Appellant. Adam Michael Van Ho, OFFICE OF

THE OHIO ATTORNEY GENERAL, Cleveland, Ohio, for Appellee. ON BRIEF: George C.

Pappas, Akron, Ohio, Donald J. Malarcik, GORMAN, MALARCIK & PIERCE, Akron, Ohio, for

Appellant. Adam Michael Van Ho, OFFICE OF THE OHIO ATTORNEY GENERAL, Cleveland,

Ohio, for Appellee.

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OPINION

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SILER, Circuit Judge. Mark A. Brown, an Ohio death row inmate, appeals the decision of

the district court denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. A

certificate of appealability (“COA”) was granted for one claim: whether clearly established Federal

law was violated when the trial court gave an instruction during the penalty phase that allegedly

coerced the jurors to agree to recommend a death sentence. We AFFIRM the district court’s

decision to deny the petition for a writ of habeas corpus because neither the Howard charge nor the

post-verdict polling of the jury was a violation of clearly established Federal law.

BACKGROUND

In 1994, Brown murdered Isam Salman and Hayder Al Turk at the Midway Market in

Youngstown, Ohio. A jury convicted Brown of two counts of aggravated murder by prior

calculation and design. The jury returned guilty verdicts on the firearm specifications and a death

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penalty specification that the murder was committed as part of a course of conduct involving the

purposeful killing of two or more people. During the penalty phase, the jury was instructed to

decide which sentence to recommend for each of the two aggravated murders. In the second day

of deliberations, the jurors informed the trial court that they had reached agreement on one of the

recommendations, but were deadlocked on the other.

The trial court gave the jury the charge approved by the Ohio Supreme Court in State v.

Howard, 537 N.E. 2d 188 (Ohio 1989), which is based on the charge from Allen v. United States,

164 U.S. 492 (1896), but modified it slightly to make it appropriate for the penalty phase of a capital

trial. The trial court replaced “jurors for acquittal” and “jurors for guilt” with “jurors for life” and

“jurors for death.” At this point, defense counsel objected that this charge was coercive and

suggested an instruction be given similar to the one mentioned in State v. Martens, 629 N.E. 2d 462

(Ohio Ct. App. 1993), informing the jury of the possibility that it might not be able to reach a

verdict. The trial court gave only the Howard charge.

The jury later returned with its verdicts: death for the murder of Salman, but life

imprisonment for the murder of Al Turk. However, when the jury was polled, juror York indicated

that her decision had been a compromise verdict. The trial court reread to the jurors the penalty-

phase instructions, minus the Howard charge, and sent the jury back for further deliberations. After

two and one-half hours of deliberations, the jury returned with the same verdicts. Upon being

polled, all of the jurors said it was their verdict. Accepting the jury’s recommendation, the trial

court sentenced Brown to death for the murder of Salman, life imprisonment without eligibility for

parole for 30 years for the murder of Al Turk, and three years of imprisonment for the firearms

specifications.

Brown unsuccessfully sought relief via direct appeal. State v. Brown, 2001 WL 103958

(Ohio Ct. App. Jan. 30, 2001) (unpublished decision), aff’d, 796 N.E. 2d 506 (Ohio 2003), cert.

denied, 540 U.S. 1224 (2004). He also unsuccessfully sought relief via state post-conviction

proceedings. State v. Brown, 2003 WL 21518723 (Ohio Ct. App. June 30, 2003) (unpublished

decision), juris. denied, 802 N.E. 2d 153 (Ohio), cert. denied, 542 U.S. 924 (2004). He submitted

an affidavit from juror York stating that after the court’s new charge the other jurors yelled and

screamed at her in the jury room, pounded the table with their fists, isolated her, accused her of

holding things up, blamed her for keeping the other jurors from returning to their families, and

bullied her into changing her vote. However, the affidavit was inadmissable. Ohio R. Evid. 606(B).

In 2005, Brown filed a petition for a writ of habeas corpus, raising several claims. The

district court denied the petition but granted a COA on the coerced juror claim.

ANALYSIS

We may not grant habeas relief on any claim adjudicated on the merits in State court unless

the adjudication resulted in a decision that (1) was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the United

States; or (2) was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding. 28 U.S.C. § 2254(d). Clearly established Federal law refers

to the holdings, not the dicta, of the Supreme Court at the time of the relevant state court decision.

Williams v. Taylor, 529 U.S. 362, 412 (2000). Brown’s primary basis for the clearly established

Federal law is Lowenfield v. Phelps, 484 U.S. 231, 241 (1988) (“Any criminal defendant, and

especially any capital defendant, being tried by a jury is entitled to the uncoerced verdict of that

body.”). However, Lowenfield does not help Brown.

In Lowenfield, the Supreme Court upheld the denial of a petition for a writ of habeas corpus

to a defendant who had been sentenced to death where the combination of giving supplemental

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instructions and polling the jury was not coercive. Id. at 246. The jury foreman informed the trial

court on the second day of deliberations in the sentencing phase that the jury was deadlocked. Id.

at 234. The trial court polled the jury on the question of whether “further deliberations would be

helpful in obtaining a verdict.” Id. Eight jurors anonymously wrote that further deliberations would

be helpful while four said they would not. Id. After denying a motion for a mistrial, the trial court

received a note that said the jurors had misunderstood the question. Id. The trial court polled the

jury again but rephrased his question slightly: “Do you feel that any further deliberations will enable

you to arrive at a verdict?” Id. Eleven jurors answered in the affirmative and one answered in the

negative. Id. at 234-35. The trial court then instructed the jury that “[e]ach of you must decide the

case for yourself” but “[d]o not hesitate to reexamine your own views and to change your opinion

if you are convinced you are wrong . . . .” Id. The jury returned 30 minutes later with a verdict of

death. Id.

The Supreme Court held that the supplemental charge was not coercive. It approved of the

Allen charge, which encouraged the jurors to consider each other’s views and “ask themselves

whether their own views were reasonable under the circumstances.” Id. at 237. Supplemental

charges to encourage a verdict are permissible because “[t]he State has in a capital sentencing

proceeding a strong interest in having the jury ‘express the conscience of the community on the

ultimate question of life or death.’” Id. at 238 (quoting Witherspoon v. Illinois, 391 U.S. 510, 519

(1968)). Unlike Jenkins v. United States, 380 U.S. 445, 446 (1965), where the trial court told the

jury “You have got to reach a decision in this case,” the trial court in Lowenfield merely encouraged

the jurors to keep deliberating and to consider each other’s views.

The Court also held that the polling of the jury was permissible. Unlike Brasfield v. United

States, 272 U.S. 448, 449-50 (1926), where the trial court inquired into the numerical division of the

jury, the trial court in Lowenfield inquired whether further deliberations might assist the jury in

returning a verdict. Lowenfield, 484 U.S. at 240. Asking the jury whether further deliberations

would be helpful to reach a verdict without inquiring into the numerical division of the jury is

permissible. Id.

Here, the trial court’s Howard charge did not violate clearly established Federal law. The

Howard charge is no more coercive than the Allen charge. As in Allen and Lowenfield, the

supplemental charge given here merely encouraged the jurors to consider each other’s views and to

ask themselves whether their own views were reasonable under the circumstances. See Lowenfield,

484 U.S. at 237-38. Such a supplemental instruction is permissible because it is not coercive and

because it respects the state’s strong interest in “having the jury express the conscience of the

community on the ultimate question of life or death.” Id. at 238 (internal quotations omitted). The

trial court, in short, did not order the jury to reach a verdict.

The polling of the jury under these circumstances also did not violate clearly established

Federal law. Lyell v. Renico, 470 F.3d 1177, 1183 (6th Cir. 2006) (finding no violation of clearly

established Federal law when trial court conducted post-verdict juror polling). While the trial court

exposed the numerical division of the jurors, “there is a world of difference between juror-coercion

claims arising from deadlocked juries and those arising from post-verdict juror polling,” thus

distinguishing Brasfield. Id. Coercion does not happen whenever the trial court, consistent with a

request for polling by the defendant, requires the juror to make a public statement of the juror’s

position after the verdict has been announced. Id. “The prospect that juror 12, who retained the

courage of her convictions to tell the public that she now wanted to change her vote, would be brow-

beaten into submitting to the majority . . . seems quite slim.” Id. at 1184. The post-verdict polling

did not violate clearly established Federal law.

Brown argues that when the jury could not reach a verdict, the trial court should have taken

the case from the jury and imposed a life sentence under the procedure discussed in State v.

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Springer, 586 N.E. 2d 96, 100 (Ohio 1992), rather than giving the Howard charge. This issue is

governed by state law, and we may not issue the writ on the basis of a perceived error of state law.

Pulley v. Harris, 465 U.S. 37, 41 (1984).

Brown argues that the alleged coercion of juror York violated Mills v. Maryland, 486 U.S.

367, 384 (1988), by precluding the consideration of mitigating factors. Brown did not raise this

argument in the state courts. Therefore, it is procedurally defaulted. Maupin v. Smith, 785 F.2d 135,

138-39 (6th Cir. 1986).

We deny Brown’s request for discovery and an evidentiary hearing on the issue of juror

coercion. Discovery and an evidentiary hearing on this issue would be futile because such evidence

is inadmissible under Ohio law, Ohio R. Evid. 606(B), and Brown has not established any

constitutional impediment to enforcing this state evidentiary rule.

AFFIRMED.