Carole Ann Rucker v. MARY LATTIMORE, Warden Central California Women’s Facility at Chowchilla, California

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROLE ANN RUCKER,
Petitioner-Appellant,
v.
MARY LATTIMORE, Warden Central
California Women’s Facility at
Chowchilla, California,
Respondent-Appellee.
No. 08-56652
D.C. No. 07-CV0364-IEG-RBB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted February 10, 2010
Pasadena, California
Before: THOMAS and SILVERMAN, Circuit Judges, and FOGEL, District
FILED
MAR 04 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable Jeremy Fogel, United States District Judge for the**
Northern District of California, sitting by designation.
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Judge**
Petitioner-Appellant Carole Ann Rucker, a state prisoner, appeals the district
court’s denial of her habeas corpus petition. We review the district court's
determination de novo. Schell v. Witek, 218 F.3d 1017, 1022 (9th Cir. 2000). The
petition is subject to the deferential standards established by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). We must determine whether the
state court proceedings “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States....” 28 U.S.C. § 2254(d)(1). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The trial court did not violate Rucker’s due process rights by failing to hold
an evidentiary hearing after Rucker’s counsel submitted a declaration by the jury
foreperson, Bruce Robinson, alleging juror misconduct. “An evidentiary hearing is
not mandated every time there is an allegation of jury misconduct or bias. Rather,
in determining whether a hearing must be held, the court must consider the content
of the allegations, the seriousness of the alleged misconduct or bias, and the
credibility of the source.” United States v. Saya, 247 F.3d 929, 934-35 (9th Cir.
2001). “In rare instances, credibility may be determined without an evidentiary

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hearing where it is possible to ‘conclusively’ decide the credibility question based
on ‘documentary testimony and evidence in the record.’” Earp v. Ornoski, 431
F.3d 1158, 1169-70 (9 Cir. 2005), citing Watts v. United States, 841 F.2d 275,th
277 (9th Cir. 1998). Based upon its observation of Robinson throughout the trial
and jury deliberation process, the conflicting declarations of four other jury
members, and Robinson’s visits to Rucker in prison immediately prior to his
submission of his declaration, the trial court reasonably determined that
Robinson’s allegations of juror misconduct lacked credibility.
Nor did the district court err in rejecting Rucker’s claim that the trial court
violated her right to due process by coercing Robinson not to testify. “The right to
offer the testimony of witnesses, and to compel their attendance, if necessary, is in
plain terms the right to present a defense, the right to present the defendant's
version of the facts as well as the prosecution's to the jury so it may decide where
the truth lies...This right is a fundamental element of due process of law.” Webb v.
Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 353, 34 L.Ed.2d 330 (1972), quoting
Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019
(1967). Rucker did not show that the trial court’s actions were unreasonable.
While it did assert that Robinson should be counseled as to his Fifth Amendment
privilege and opined aloud that Robinson’s behavior might constitute obstruction

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of justice, the trial court made these statements outside Robinson’s presence. See
contra Webb, 409 U.S. at 98 (holding that “unnecessarily strong terms used by the
judge could well have exerted such duress on the witness’ mind as to preclude him
from making a free and voluntary choice whether or not to testify”). Moreover,
when Robinson invoked his Fifth Amendment privilege, he did so through his
counsel. See United States v. Jaeger, 538 F.3d 1227, 1229-32 (9th Cir. 2008)
(holding witness was not coerced into invoking Fifth Amendment privilege in part
because the court provided the witness an opportunity to consult with counsel prior
to deciding whether to testify).
The trial court did not violate Rucker’s right to due process by allowing
Robinson to invoke his Fifth Amendment privilege in a blanket fashion. We have
held generally that “[a] proper application of [Hoffman v. United States, 341 U.S.
479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)] requires that the Fifth Amendment claim
be raised in response to specific questions...Thus a blanket refusal to answer any
question is unacceptable.” United States v. Pierce, 561 F.2d 735, 741 (9 Cir.th
1997). However, “[i]n United States v. Tsui, 646 F.2d 365 367-68 (9 Cir. 1981),th
we found ‘an exception to...Pierce...[where,] based on its knowledge of the case
and of the testimony expected from the witness, [the trial court] can conclude that
the witness could ‘legitimately refuse to answer essentially all relevant questions.’”

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United States v. Moore, 682 F.2d 853, 856 (9 Cir. 1982), quoting United States v.th
Goodwin, 625 F.2d 693, 701 (5th Cir. 1980). “This exception, however, is a
narrow one, only applicable where the trial judge has some special or extensive
knowledge of the case that allows evaluation of the claimed fifth amendment
privilege even in the absence of specific questions to the witness.” Id.
The trial court was intimately familiar with the case and with Robinson’s
potential testimony. In fact, at an earlier hearing on Rucker’s motion for a new
trial, after reviewing the declaration submitted by Robinson that would form the
basis of his proffered testimony, the trial court itself noted that Robinson risked
self-incrimination. Accordingly, the trial court’s determination that the privilege
applied to the entirety of Robinson’s testimony falls within the exception
articulated in Moore and was not contrary to law.
The district court did not err in rejecting Rucker’s claim that her
constitutional rights were violated when during jury deliberation jurors nine and
two discussed their personal experiences as victims of sexual assault. “A juror’s
past personal experiences may be an appropriate part of the jury’s deliberations.”
Grotemeyer v. Hickman, 393 F.3d 871, 879 (9 Cir. 2004); see id. at 880 (holdingth
that “[i]t is probably impossible for a person who has highly relevant experience to
evaluate the credibility of witnesses without that experience bearing on the

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evaluation. Were we to require the impossible and prohibit jurors from relying on
relevant, past personal experience, about all we would accomplish would be to
induce jurors to lie about it when questioned afterward...”).
Finally, the district court did not err in rejecting Rucker’s claim that the trial
court’s use of CALJIC 2.50.02 violated her right to due process because it allowed
the jury to find her guilty of the attempted murder of Hubert Watson if it found by
a preponderance of the evidence that she had harassed and pointed a loaded gun at
her ex-boyfriend, David Yu. “A permissive inference violates the Due Process
Clause only if the suggested conclusion is not one that reason and common sense
justify in light of the proven facts before the jury.” Francis v. Franklin, 471 U.S.
307, 314-15, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344 (1985), citing Ulster County
Court v. Allen, 442 U.S. 140, 157-163, 99 S.Ct. 2213, 2224-2227, 60 L.Ed.2d 777
(1979). In this instance, the evidence showed that Rucker: (1) had been dating
Watson and Yu for an extended period of time when the respective relationships
ended against her wishes; (2) stalked both victims (Yu for approximately two years
and Watson immediately prior to the attempted murder); (3) carried a handgun to
the home of both Yu and Watson; and (4) pointed a loaded handgun at both men.
The suggested conclusion is “one that reason and common sense justify in light of
the proven facts before the jury.” Id.

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AFFIRMED.

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