677 F. 2d 907 - United States v. A Brooks

Appellant Brooks seeks review under 28 U.S.C. § 2255 (1976) of the district court's dismissal of his petition to vacate his 1968 sentence for first degree murder and unlawful possession of a prohibited weapon. For the reasons set forth below, we affirm the judgment of the district court.

Brooks was convicted by a jury of murder in the first degree in December 1968 and sentenced to life imprisonment. That conviction was affirmed by this court, United States v. Brooks, 449 F.2d 1077 (D.C.Cir.1971), in an opinion by Judge Leventhal. In the 13 years since his conviction, Brooks has filed at least ten petitions under section 2255 seeking to vacate his conviction, all of which were denied.

The instant petition, filed on September 5, 1980, claims that Brooks was denied his right to trial by an impartial jury under the Sixth Amendment. The principal basis of this claim is the affidavit of February 22, 1980 by the foreman of the 1968 jury that convicted Brooks, one James McRoy. This affidavit is set forth in the margin.1 It states that McRoy, "in the late spring or early summer of 1968 ... began to see one Freddie A. Brooks who visited my place (of work) during work hours." The affidavit states that McRoy saw Brooks enter and exit McRoy's place of employment, a cleaning establishment, seven or eight times over a period of weeks. Brooks claims that this series of casual observations, which all concede McRoy did not recall at the time of trial, gave rise to at least the possibility that McRoy possessed a subconscious memory of Brooks that may have prejudiced him against Brooks. On this basis Brooks sought an evidentiary hearing in the district court to determine, possibly through the use of hypnosis, whether McRoy was prejudiced when he participated as a juror in Brooks' trial. The district court dismissed Brooks' petition without a hearing, and Brooks appeals.

Before considering Brooks' claim we note the limited content of the McRoy affidavit. First, it contains only the very limited statement that McRoy "saw" and "paid attention" to Brooks. There is no evidence that the two ever met or exchanged words, or that Brooks was even aware of McRoy's existence. Nor is there any indication of a connection between the crimes with which Brooks was charged and the circumstances in which McRoy observed him. Second, the affidavit states that when the jury panel was asked during voir dire whether "any of you know the defendant" (Transcript of Dec. 10, 1968 at 12), McRoy "honestly answered 'No' because I did not recall having ever seen him before at that time" (emphasis added). In any event there is no claim that McRoy ever "knew" Brooks, only that he had, at some distance, seen him casually a few times under circumstances which at the time of trial he did not remember. McRoy states in his 1980 affidavit that he came to the realization that Brooks and the man he had seen enter the cleaning shop were the same person only at some unspecified time "(a)fter the trial was over"-when a co-worker suggested such fact to him. The date between 1968 and 1980 exactly when the co-worker made the suggestion is not stated, nor is her last name known to McRoy or otherwise disclosed in the record.

In order to provide some basis for a claim of possible prejudice on the part of McRoy, Brooks proffered the affidavit of a practicing clinical phychologist.2 This affiant states that in his expert opinion the simple fact that McRoy had seen Brooks prior to trial established that McRoy "retained a subconscious memory of Mr. Brooks even though he did not consciously recall him at any time during the trial." That subconscious memory, the affidavit states, in turn "acted on and influenced to some extent the attitude, deliberative process, thought content and emotional reactions of Mr. McRoy as he regarded Mr. Brooks during his trial." There is no assertion, however, that McRoy's subsconscious memory adversely affected Brooks. The affidavit concludes that the existence and effect of McRoy's "subconscious memory" of Brooks could be ascertained through hypnosis of McRoy, "assuming it can be accomplished."

A third affidavit was executed by Brooks' trial counsel. It stated that counsel, had he been aware of McRoy's sightings of Brooks prior to trial, would have exercised a peremptory challenge to strike McRoy from the jury. There is no claim that he could have been struck for cause.

The district court denied Brooks' petition without conducting an evidentiary hearing. It held that the failure of a juror to disclose information sought on voir dire requires a new trial only where the information was deliberately withheld; since deliberate concealment of a fact is possible only if the concealer is aware of the fact in the first place, that standard was not satisfied by Brooks' allegations. On appeal from that decision, Brooks urges that the petition presented facts sufficient to warrant conducting an evidentiary hearing on the question of prejudice.3 We disagree.

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

28 U.S.C. § 2255 (1976) (emphasis added). Rule 4 of the Rules Governing Proceedings in the United States District Courts under Section 2255 (1976) similarly provides that if on initial consideration by the district court "it plainly appears from the face of the motion and any annexed exhibits ... that the movant is not entitled to relief," a 2255 petition may be summarily dismissed. See also id. Rule 8. It is therefore beyond dispute that section 2255 does not require an evidentiary hearing in every case. Daniels v. United States, 357 F.2d 587 (D.C.Cir.1966). We conclude that the district judge did not abuse her discretion in denying Brooks' petition without an evidentiary hearing.

The suggestion that the court, in a collateral attack on a conviction well over ten years old, was required to take and give credence to evidence that a juror had "subconscious memories" that must be probed years later, is based on an unacceptable extension of the bounds of due process. We hold that a juror's testimony as to nonprejudicial "subconscious memory" that was unrecalled over ten years previously on voir dire cannot constitute a post hoc basis for a hearing to challenge the juror's competency. There is no showing that McRoy's "subconscious memory" indicated any prejudice against Brooks, and we refuse on such fanciful and speculative grounds to require an inquiry into a jury verdict thirteen years after it was returned.

In Daniels v. United States, supra, this court upheld the denial of a new trial motion without a hearing where, although an accurate response to a question on voir dire might have prompted a defense challenge, the likelihood of prejudice was minimal. Generally speaking, the mere allegation of a "possibility" of some undefined prejudice-which is all the petition and the psychologist's affidavit here can amount to-is completely speculative and not sufficient to trigger the right to an evidentiary hearing under section 2255. See, e.g., Eskridge v. United States, 443 F.2d 440, 443 (10th Cir. 1971) (allegation that defense counsel "acted with bias toward" defendant did not require hearing). Allegations of prejudice must be detailed and specific; even then they may be insufficient as a matter of law to require a hearing. Machibroda v. United States, 368 U.S. 487, 495-96, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1962). See, e.g., Smith v. United States, 431 F.2d 565 (5th Cir. 1970) (per curiam) (motion based on challenge to jury selection system denied without hearing). This is such a case.

With respect to the fact that McRoy did not recall his sighting of Brooks until sometime after the trial concluded, and then only at the suggestion of a third party, generally the failure of a juror to disclose facts that might lead to his being challenged will be the basis for the grant of a new trial only if the nondisclosure is deliberate. Ryan v. United States, 191 F.2d 779 (D.C.Cir.1951). See Irving v. Bullock, 549 P.2d 1184, 1188 (Alaska 1976) (juror affidavits excluded "except in cases of fraud, bribery, or other obstruction of justice"). Brooks has not alleged that McRoy deliberately concealed any material fact on voir dire ; indeed, the affidavit relied upon states that McRoy answered all questions "honestly." See n.1 supra. See also Van Zee v. Bayview Hardware Store, 268 Cal.App.2d 351, 74 Cal.Rptr. 21 (1968). Consequently, Brooks does not make a prima facie showing of prejudice and therefore no hearing was required.

Carpenter v. United States, 100 F.2d 716 (D.C.Cir.1938), relied upon by appellant, is not to the contrary. In that case, on facts closely similar to those involved in the present case, but involving an attack on conscious memory rather than sub-conscious memory, the trial court conducted a hearing in which the juror was examined regarding his failure to answer a question on voir dire. This court's opinion affirming the denial of the motion for a new trial rested on the ground that the inquiry had produced "no evidence to show that the juror purposely failed to answer the questions of counsel or that he deliberately concealed his acquaintance with them." Id. at 717. In the present case, appellant's submission of the McRoy affidavit, which states that the juror answered all questions on voir dire honestly, obviates the need for any evidentiary hearing, for it constitutes an admission by appellant that McRoy did not "purposely" fail to answer or "deliberately" conceal any material fact. Given this state of appellant's proffered proofs, Carpenter is not merely consistent with the district court's judgment but indeed compels it.

The hearing that Brooks sought on McRoy's affidavit to probe whether he in fact possessed a subconscious memory that influenced his deliberations in the jury room was also unavailable as a matter of law. First, it is the established rule that a juror's testimony or affidavit "concerning his mental processes in connection ... with (a verdict)" is inadmissible and may not be used to support a collateral attack upon such verdict. Fed.R.Evid. 606(b) (emphasis added).4 Federal Rule of Evidence 606 provides:

(b) Inquiry into validity of verdict.-Upon an inquiry into the validity of a verdict ... 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 ... 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 jury's 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.

Fed.R.Ev. 606(b) (emphasis added). This rule, subject to its specified exceptions of improper influences, renders McRoy incompetent to testify as to his mental processes or the effect of "anything " upon his mind or emotions that might have influenced him on the verdict. Brooks' petition thus impermissibly seeks to explore such matters, and McRoy's affidavit is inadmissible as would be his testimony.

While the courts have accepted the testimony of jurors to the effect that improper outside influences were brought to bear on the jury, e.g., Mattox v. United States, 146 U.S. 140, 148-49, 13 S.Ct. 50, 52-53, 36 L.Ed. 917 (1892), "they have consistently refused to consider statements by jurors relating either to the subjective effect such influences might have had on them or to the mental processes through which they arrived at their verdict." United States v. Green, 523 F.2d 229 (2d Cir. 1975), cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976). See, e.g., Putenson v. Clay Adams, Inc., 12 Cal.App.3d 1062, 1081, 91 Cal.Rptr. 319, 332 (1970). That has been the rule in the Supreme Court since Hyde v. United States, 225 U.S. 347, 382-84, 32 S.Ct. 793, 807-808, 56 L.Ed. 1114 (1912). See generally McDonald v. Pless, 238 U.S. 264, 268-69, 35 S.Ct. 783, 784-785, 59 L.Ed. 1300 (1915). Consequently, where "(t)he only questions that the trial judge might have asked at a (Section 2255) hearing would have concerned the jurors' prejudices and, therefore, would have been impermissible," the trial court was under no obligation to conduct an evidentiary hearing. United States v. Duzac, 622 F.2d 911, 914 (5th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 570, 66 L.Ed.2d 471 (1980); accord, United States v. Duncan, 598 F.2d 839, 866 (4th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979).

Second, even supposing that McRoy were competent to testify in accordance with his affidavit, here there was simply no showing that any element in the subconscious memory of McRoy could operate to influence a decision against Brooks. There is thus an absence of any claim that petitioner suffered prejudice as a result of the facts recited therein. McRoy's sighting of Brooks5 that was not recalled until some unspecified time after the trial, and was not presented to the court until years later, was not "pertinent to the disposition of an ultimate issue in the controversy, that is, to the jury's consideration of the guilt or innocence of the defendant." Government of the Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976), quoting United States v. Burke, 496 F.2d 373, 377 (5th Cir. 1974). Compare United States v. Blair, 444 F.Supp. 1273 (D.D.C.1978) (hearing held and new trial granted where juror notified court that other juror stated, in course of deliberations on narcotics charges, that she knew defendant and knew that he used drugs).

The purpose of the provisions in Rule 606(b) governing inquiry into jury deliberations, like that of the deliberate-concealment rule governing inquiry into jurors' responses on voir dire, is to preserve the integrity of jury deliberations by confining claims of error to events or conditions that are "improperly brought to the jury's attention" and involve a calculated, intentional attempt to affect their outcome. See generally 3 J. Weinstein & M. Berger, Weinstein's Evidence P 606(03) (1981). As the present case well illustrates, the rule which generally prevents jurors from impeaching their verdicts is necessary in order to prevent "tampering with individual jurors subsequent to the verdict," Mattox v. United States, 146 U.S. at 148, 13 S.Ct. at 52, and to sustain that "(p)ublic policy (which) forbids that a matter resting in the personal consciousness (much less subconsciousness) of one juror should be received to overthrow the verdict." Id. "(A) change in the rule 'would open the door to the most pernicious arts and tampering with jurors.' 'The practice would be replete with dangerous consequences.' 'It would lead to the grossest fraud and abuse' and 'no verdict would be safe.' Cluggage v. Swan, 4 Binn. 155; Straker v. Graham, 4 M. & W. 721." McDonald v. Pless, 238 U.S. at 268, 35 S.Ct. at 784. These policies clearly remain compelling notwithstanding Brooks' assertion of the claim that the "expanding frontiers" of psychology have revealed new potential for proving the occurrence of prejudice, for the law precludes even the introduction of a juror's testimony or affidavit admitting to consciously prejudiced internal thought processes. See, e.g., United States v. Eagle, 539 F.2d 1166 (8th Cir. 1976), cert. denied, 429 U.S. 110, 97 S.Ct. 1146, 51 L.Ed.2d 563 (1977).6

In our decision 11 years ago in United States v. Brooks, supra, 449 F.2d at 1084, we noted that the evidence against Brooks was "overwhelming." There is no basis whatsoever for now requiring the district court to conduct a hearing to explore the possibility that subconscious memories may have influenced the deliberations of one of the jurors.

McRoy's "honest " failure on voir dire to remember having observed Brooks was not the sort of "fundamental defect which inherently results in a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974). The decision of the district court is therefore affirmed.

Judgment accordingly.