Greer v. Thompson

*424 HINES, Justice,

dissenting.

As the majority fails to follow precedent of the United States Supreme Court, and substitutes its judgment for that of the habeas court, I respectfully dissent.

Under the decision of the Supreme Court in Remmer v. United States, 347 U. S. 227 (74 SC 450, 98 LE2d 654) (1954), when the trial court is informed of a bribery communication to a juror such as occurred here, the trial court must conduct a hearing.

In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. 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. [Cits.]

Id. at 229 . No such hearing was held in this case.

Thompson’s petition for a writ of habeas corpus rested in part on counsel’s failure to ensure that the required Remmer hearing was held. The habeas court found that counsel’s failure to move for the hearing when the purported bribery communication to Reid was revealed to the trial court, and his failure to move for a mistrial based on the trial court’s failure to hold a hearing on that subject, was deficient. At the habeas hearing, counsel’s only explanation for failing to assert Thompson’s rights was that he did not wish to risk the ire of the trial court. As Remmer recognizes, the question of prejudice to a criminal defendant in circumstances such as that presented here must be properly investigated, Remmer, supra, and the habeas court’s finding that counsel’s representation fell below the standard of reasonable professional conduct was not clearly erroneous.

Nonetheless, the majority contends that Remmer has no precedential value. The majority argues that the United States Supreme Court has abandoned Remmer’s statement that in the required hearing, there is a presumption of harm to the defendant flowing from the bribery communication. As authority for this conclusion, the majority points to a later statement of the Supreme Court that “the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.” Smith v. Phillips, 455 U. S. 209, 215 (II) (102 SC 940, 71 LE2d 78) (1982). However, Smith , unlike Remmer , did not address a case of jury tampering, or of any external communication with a juror, but concerned the bias *425 inherent in a juror who was seeking employment with the prosecutor’s office; the Court recognized the distinction between the situation posed in Smith and the seriousness of bribery communications. Id.

Smith did not overrule Remmer . Rather, Smith discussed Remmer at length, and cited Remmer with approval, noting that compliance with Remmer’s procedures satisfied constitutional requirements. Id. at 217-218. Thus, Smith’s recognition of the constitutional nature oí Remmer’s requirements shows the majority’s assertion that Remmer is simply a rule of federal criminal procedure is incorrect. The Remmer requirement was not treated as merely a procedural rule by the Supreme Court, either in that opinion, or in Smith .

As a decision of the Supreme Court, Remmer is binding upon this Court, and has been for 52 years, regardless of whether it has previously been cited. The Remmer presumption continues to be applied in cases of jury tampering, which compared to most other improper jury communication, “is a much more serious intrusion into the jury’s processes and poses an inherently greater risk to the integrity of the verdict.” United States v. Dutkel, 192 F3d 893, 895 (II) (9th Cir. 1999). See United States v. Cheek, 94 F3d 136, 141 (III) (4th Cir. 1996). But see United States v. Pennell, 737 F2d 521, 532 (IV) (6th Cir. 1984). The cases upon which the majority relies to support its statement that Remmer is no longer binding precedent do not pose anyissue of the “inherently greater risk” of jury tampering. See Wheel v. Robinson, 34 F3d 60 (2nd Cir. 1994) (expressions of juror bias and out-of-court expression of opinion by a friend of a juror); Crease v. McKune, 189 F3d 1188 (10th Cir. 1999) (court’s ex parte communication with a juror); State v. Mann, 39 P3d 124 (N.M. 2002) (juror performing probability calculations in jury room independent of expert evidence).

The majority states that Remmer’s presumption of prejudice was applied by the habeas court to Thompson’s claim of ineffective assistance of counsel to meet the second prong of the test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). But, that is not the case. Rather, the habeas court found that the prejudice prong of Strickland was met because counsel’s deficient representation deprived Reid of the hearing to which he was entitled. At such a hearing, as the habeas court noted, Reid might have been removed and replaced with an alternate. It is this fact that the habeas court relied on, in part, in finding that the prejudice prong of Strickland was satisfied. That a presumption would have existed in the event of a Remmer hearing is not the source of the habeas court’s finding of prejudice, it is simply the factual and procedural environment in which that hearing would have been held. The habeas court’s finding of prejudice flowing from counsel’s failure to ensure a hearing was simply made in the context of that environment. Thus, the *426 majority’s reliance on Vigil v. Zavaras, 298 F3d 935, 940 (II) (A) n. 6 (10th Cir. 2002), for the statement that there is no presumption of prejudice in the context of a habeas proceeding is simply irrelevant; the habeas court did not presume prejudice, but found it in the facts of this case.

The majority does recognize a presumption of harm arising from unauthorized juror communications in a criminal case, and that the State then has the burden to show that there is no harm. See Ledford v. State, 264 Ga. 60, 65 (9) ( 439 SE2d 917 ) (1994); Jones v. State, 258 Ga. 96 ( 366 SE2d 144 ) (1988). However, the majority also states that, in a habeas case, the presumption of harm may not be relied upon, but that actual prejudice must be found. See United States v. Frady, 456 U. S. 152, 170 (102 SC 1584, 71 LE2d 816) (1982). As noted above, the habeas court did not apply a presumption of harm, rather finding harm under the Strickland standard. And, by meeting the prejudice prong of Strickland , the test for actual prejudice was also met. This Court has previously examined how the actual prejudice test relates to the prejudice prong of Strickland .

We are persuaded that the Strickland and Frady prejudice tests address similar concerns, and we therefore conclude that if a convicted defendant meets the prejudice prong of Strickland , he has satisfied the Frady prejudice test at least for the errors that support the ineffectiveness claims.

Turpin v. Todd, 268 Ga. 820, 830 (2) (b) ( 493 SE2d 900 ) (1997). Thus, in finding that Strickland was met, the habeas court found actual prejudice and, contrary to the majority’s conclusion, did not rely upon an erroneous legal standard.

The majority also addresses the habeas court’s finding that counsel was ineffective for failing to move for a mistrial when the court informed the jury about the note the court had received from Reid. Although the majority intones that this Court will not reverse the habeas court’s factual findings unless they are clearly erroneous, the words are hollow. The habeas court found that “the trial judge told the jury that a bribe had been offered ‘on behalf of the defendant.’ ” The majority takes issue with that finding, stating that the trial court’s language “does not necessarily mean that the person offering the bribe was acting at the direction of or as a representative of Thompson” and that the trial court’s phrase “can simply” have another meaning than that ascribed by the habeas court. The majority then re-weighs the evidence and declares that the habeas court’s factual finding is clearly erroneous, as it must do if the majority is to reach its preferred outcome. The deference given by an appellate court to the factfinder is not simply a rhetorical technique to be *427 recited when it furthers the result an appellate court desires; rather, it is an essential principle in our system of judicial review.

Decided November 20, 2006

Reconsideration denied December 15, 2006.

Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mark A. Gilbert, for appellants.

James N. Finkelstein, for appellee.

Accordingly, I cannot join the majority opinion.

I am authorized to state that Presiding Justice Hunstein and Justice Benham join in this dissent.