Ronald A. Williams v. JAMES PRICE, Superintendent, SCI-Pittsburgh

PRECEDENTIAL
Filed September 9, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-2305
RONALD A. WILLIAMS,
Appellant
v.
JAMES PRICE, Superintendent,
SCI-Pittsburgh; D. MICHAEL
FISHER, Attorney General
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
District Court Judge: Honorable Donald E. Ziegler
(D.C. No. 98-cv-01320)
Argued: February 10, 2003
Before: ALITO and McKEE, Circuit Judges, and
SCHWARZER,* District Judge
(Filed: September 9, 2003)
* The Honorable William W Schwarzer, Senior Judge of the United States
District Court for the Northern District of California, sitting by
designation.

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CHRIS RAND EYSTER (Argued)
100 Ross Street, Suite 304
Pittsburgh, PA 15219
Counsel for Appellant
TIMOTHY F. McCUNE (Argued)
Butler County District Attorney’s
Office
P.O. Box 1208
Butler, PA 16003-1208
Counsel for Appellee
OPINION OF THE COURT
ALITO, Circuit Judge:
This is an appeal from a District Court order denying a
petition for a writ of habeas corpus filed by Ronald A.
Williams. Williams, who is serving a term of life
imprisonment in Pennsylvania for first-degree murder,
argues that his right to an impartial jury was abridged
because the state courts refused in post-trial proceedings to
admit certain evidence of racial bias on the part of
members of the jury. Williams sought to introduce this
evidence to show, among other things, that jurors lied
during voir dire when they denied racial prejudice. The
state courts refused to consider the evidence at issue based
on the well-established evidence rule that generally bars
juror testimony for the purpose of impeaching a verdict (the
“no impeachment” rule). We hold that the state courts’
refusal to receive some but not all of this evidence violated
Williams’s clearly established constitutional rights, and we
therefore vacate the decision of the District Court and
remand for an evidentiary hearing at which Williams will
have the opportunity to introduce the improperly excluded
evidence and to attempt to prove that a juror lied during
voir dire.
I.
On August 5, 1984, at about 10:15 p.m., Archie Bradley
stepped off a city bus outside a truck depot maintained by
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his employer, Nor-Sub Trucking, in Cranberry,
Pennsylvania. Minutes later, witnesses heard five gunshots
nearby. One witness also saw the triggerman standing over
Bradley’s body and holding a gun. Immediately before the
witnesses contacted police, a patrolling traffic officer
observed a suspicious car leaving the Nor-Sub parking lot.
He noted the license plate and initiated a pursuit that
escalated in intensity. The driver of the fleeing car threw
various objects out the window, striking the police car with
one of them, and succeeded in eluding the officer, but the
car overturned on an embankment. Police discovered it
abandoned. Retracing the route of the car chase, police
recovered a Mac-10 firearm, a silencer, and an ammunition
cartridge, and the police matched the gun forensically to
the object that had struck the police cruiser. A search of
the vehicle yielded more guns and ammunition, as well as
a slip of paper on which was written “Nor-Sub 10:15.”
In the early-morning hours of August 6, Williams
telephoned Jewel Hayes, an intimate acquaintance,
explaining that he was stranded somewhere and needed a
ride. Hayes agreed, but when she could not find the
designated pick-up location, she asked a police officer for
directions. Police traced the phone call and arrested
Williams and his brother Raymond. The eyewitness to the
shooting identified Williams as the gunman. A 911 caller
who claimed to have witnessed the vehicle leaving the crime
scene initially described the car as blue and its driver as
white, but this witness later decided that the car was gray
and the driver was black. The witness eventually identified
Williams, who is African American, as the driver. Both
parties in their briefs refer to other inculpatory and
exculpatory evidence, but none of it has a bearing on this
appeal.
During voir dire proceedings in the Williamses’ 1985 trial,
the trial court asked two questions regarding racial bias:
Do you personally believe that blacks as a group are
more likely to commit crimes of a violent nature
involving firearms?
Can you listen to and judge the testimony of a black
person in the same fashion as the testimony of a white
person, giving each its deserved credibility?
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All the jurors who were selected to serve answered “no” to
the first question and “yes” to the second. The jury
convicted both Williams and his brother and sentenced
them to death.
Shortly after the verdicts were returned, Williams’s
attorney filed post-trial motions. Among other things, he
sought a new trial on the ground that the jury had received
and had been influenced by information not introduced in
court. In support of this motion, Williams’s attorney
submitted the affidavit of juror Judith Montgomery.
Montgomery, who died in 1996, stated that “[p]rior to the
deliberation process as to Ronald Alfred Williams’
sentencing,” another juror had told the entire jury that,
according to information received from an alternate, Ronald
Williams had committed two murders, that Raymond
Williams was wanted for two other murders, and that, “if
this jury did not give the death penalty, (regarding
Raymond Williams) another [jury] would.” App. 8a.
On February 11, 1985, the trial judge held an evidentiary
hearing on these allegations. Raymond Williams and his
attorney were present at the hearing, but neither Ronald
Williams nor his lawyer was there. At the beginning of the
hearing, the judge stated that “a juror may not impeach his
or her own verdict” but that there is “a narrow exception
. . . allowing post-trial testimony of extraneous influences
which might have affected the jury during their
deliberation.” App. 46a-47a. Montgomery, the other jurors,
and a reporter for a local newspaper who had overheard a
conversation among the jurors then testified. This
testimony revealed that, after the guilt-phase verdict but
before the penalty-phase verdict, half of the jurors had
heard that Ronald Williams was wanted on other murder
charges. See Commonwealth v. Williams, 522 A.2d 1058,
1066 (Pa. 1987) (direct appeal of Raymond Williams). The
trial judge nevertheless refused the request for a new trial
because he was satisfied by the testimony of the jurors that
they had not been influenced by this information in
imposing sentences of death. See id. On appeal, however,
the Pennsylvania Supreme Court vacated the death
sentences imposed on both brothers and remanded for the
imposition of sentences of life imprisonment. Id. at 1067;
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Commonwealth v. Williams, 561 A.2d 714, 719 (Pa. 1989)
(direct appeal of Ronald Williams). The state supreme court
concluded that prejudicial extraneous information had
tainted the death verdicts, but the court saw no need to
disturb the guilty verdicts since the testimony at the post-
trial hearing had established conclusively that none of the
jurors had heard the objectionable information until after
the guilty verdicts had been returned. 522 A.2d at 1065-68
& n.5; 561 A.2d 719.1
In 1994, Ronald Williams, represented by new counsel,
filed a state Post-Conviction Relief Act (“PCRA”) petition in
which he contended that members of the jury had lied
during voir dire when they answered the questions about
racial prejudice. In support of this motion, Williams relied
on a new affidavit by Montgomery and another affidavit by
Jewel Hayes, who had testified at trial.
Montgomery’s affidavit stated:
[W]hen I was Juror No. 9 in the trial of Commonwealth
of Pennsylvania vs. Ronald Williams and Raymond
Williams . . . I was called “a nigger lover” and other
derogatory names by other members of the jury.
Remarks were made to me such as “I hope your
daughter marries one of them” . . . . The jurors were
given information by an alternate juror who was told by
[the] Sheriff . . . that the “men were wanted in other
states and if we don’t get them another state would”
and “that Raymond [Williams, Appellant’s brother and
co-defendant] was going to die anyway as he shot and
crippled a man for life in Michigan. The man lived and
was able and willing to testify against Raymond, so his
black ass was cooked anyway.”
App. 6a.
1. The court did not order a new sentencing hearing because it
concluded that it was not authorized to do so under state law. 521 A.2d
at 1067. In Ronald Williams’s appeal, the court held that, in view of the
vacatur of his death sentence, the defendant’s absence from the post-
trial hearing due to the unavailability of his attorney was
inconsequential. 561 A.2d at 719.
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Hayes’s affidavit averred:
Subsequent to the proceedings in this case . . . I ran
into Juror Number Two (2) in the lobby of the
Courthouse. . . . Upon seeing me he stated “All niggers
do is cause trouble” I am not sure whether this was
stated directly to me but it was stated for my benefit
and loudly enough for me to hear and to get a rise out
of me. During our confrontation he also stated “I
should go back where I came from.”
App. 7a.
On July 18, 1995, the court held an evidentiary hearing
on this issue. Prior to the receipt of testimony, the court
ruled that evidence of what went on “in the courtroom, or
in the jury room” would not be admitted but that evidence
of any extraneous information that might have affected the
guilty verdict would be received. App. 90a. Montgomery
again testified, and she reaffirmed that the information
about the other murder charges against Williams had not
been received until after the guilty verdict was returned. Id.
at 48a-57a. Hayes was not called as a witness.
The PCRA Court denied Williams’s petition. Stating that
Williams had argued that racial slurs had allegedly been
uttered by jurors “during jury deliberations,”2 the Court
wrote that “it is firmly established that after a verdict is
recorded and the jury discharged, a juror may not impeach
the verdict by his or her own testimony.” App. 52a. The
Court added that, while there is an exception to this rule
for “extraneous influences on the jury deliberation process,”
the alleged slurs were not extraneous and thus did not fall
within the exception. Id. The Court did not explain why it
did not consider Hayes’s evidence.
2. Although Williams argued that he was entitled to post-conviction relief
because jurors had lied during voir dire, the PCRA Court characterized
Williams’s argument as one claiming ineffective assistance of counsel.
Amend. App. 45a, 52a. However, because the PCRA Court rejected
Williams’s argument on the ground that the underlying issue regarding
the racial slurs lacked “arguable merit,” Amend. App. 52a, it is apparent
that the Court’s characterization of the claim had no effect on its
decision to deny relief. (“Amend. App.” refers to the “Amendment to
Appendix for Appellant” that was submitted after this case was argued.)
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On appeal to the Superior Court, Williams argued that
his federal constitutional right to an impartial jury had
been abridged by the PCRA Court’s refusal to consider the
evidence in the Montgomery and Hayes affidavits for the
purpose of determining whether jurors had lied during voir
dire. See Amend. App. 40a-43a. Since the PCRA Court had
refused to consider this evidence due to the “no
impeachment” rule, the clear implication of Williams’s
argument was either that this rule did not apply when
evidence was offered to prove that a juror lied during voir
dire or that under these circumstances the rule had to give
way to his constitutional right to an impartial jury.
However, the discussion in Williams’s brief did not spell out
either of these arguments, and the Superior Court affirmed
based on the PCRA Court’s analysis. Commonwealth v.
Williams, No. 0076, slip op. at 8 (Pa. Super. Nov. 14, 1996).
Williams filed a petition for allocatur that raised the issue
now before us in virtually the same words as his Superior
Court brief, Amend. App. at 95a-98a, but the Pennsylvania
Supreme Court denied review. Commonwealth v. Williams,
699 A.2d 735 (Pa. 1997).
Williams then filed a petition for a writ of habeas corpus
in the United States District Court for the Western District
of Pennsylvania. A Magistrate Judge issued a report and
recommendation concluding that the petition should be
denied. At the outset of her discussion of the pertinent
issue, the Magistrate Judge noted that Williams had
“submitted affidavits of one juror [i.e., Montgomery] and
one trial witness [i.e., Hayes], R & R at 33, but the
Magistrate Judge made no further reference to Hayes.
Indeed, the Magistrate Judge later stated that “the state
courts refused to consider [Williams’s] proposed submission
of affidavits by two jurors” based on the “no impeachment”
rule, and the Magistrate Judge concluded that Williams
had not “demonstrated that the state courts’ actions were
‘contrary to’ Tanner [v. United States, 483 U.S. 107 (1987)]
and other relevant Supreme Court cases, which do not
permit the type of post-verdict jury impeachment testimony
[Williams sought] to introduce.” R & R at 34-35 (emphasis
added). The District Court adopted the Report and
Recommendation without elaboration, and this appeal
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followed. A panel of our court granted a certificate of
appealability on the following questions:
Was Williams denied due process in violation of the
Fourteenth Amendment or a fair trial or impartial jury
in violation of the Sixth Amendment because (1) jurors
were disingenuous on voir dire in answering questions
about racial bias; or (2) [is this] a rare case which is an
exception to the “no-impeachment rule”? See United
States v. Henley, 238 F.3d 111 (9th Cir. 2001); Shillcutt
v. Gagnon, 827 F.2d 1155 (7th Cir. 1987).
II.
A.
Our standard of review in this case is governed by 28
U.S.C. § 2254(d)(1). Under this provision, federal habeas
relief may not be awarded as to any claim that a state court
has adjudicated on the merits “unless the adjudication of
the claim . . . 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), (d)(1) (2002) (emphasis
added). “[C]learly established Federal law, as determined by
the Supreme Court,” id., “refers to the holdings, as opposed
to the dicta, of [the Supreme] Court’s decisions as of the
time of the relevant state-court decision.” Williams v.
Taylor, 529 U.S. 362, 412 (2000). A decision is “contrary to”
a Supreme Court holding if the state court “contradicts the
governing law set forth in [the Supreme Court’s] cases” or
if the state court “confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court
and nevertheless arrives at a [different] result.” Id. at 405-
06. A decision “involve[s] an unreasonable application” of
clearly established federal law if the state court “identifies
the correct governing legal rule from [the Supreme] Court’s
cases but unreasonably applies it to the facts of the
particular . . . case” or if the state court “unreasonably
extends a legal principle from [Supreme Court] precedent to
a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it
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should apply.” Id. at 407. We review de novo the District
Court’s application of section 2254(d). See Banks v. Horn,
271 F.3d 527, 531 (3d Cir. 2001).
B.
Williams points to McDonough Power Equipment, Inc. v.
Greenwood, 464 U.S. 548 (1984) (“McDonough”), as the
Supreme Court precedent that the state courts contradicted
or unreasonably applied. In McDonough, the losing parties
in a civil trial in federal court argued that they were entitled
to a new trial on the ground that a juror had failed to
disclose material information in response to a question
asked during voir dire. The Supreme Court held that in
order “to obtain a new trial in such a situation, a party
must first demonstrate that a juror failed to answer
honestly a material question on voir dire, and then further
show that a correct response would have provided a valid
basis for a challenge for cause.” Id. at 556.
Although McDonough was a federal civil case, a state
court decision failing to apply this same rule in a criminal
prosecution would represent an unreasonable application of
clearly established federal law within the meaning of 28
U.S.C. § 2254(d)(1). The McDonough Court based its
decision on the following principle:
One touchstone of a fair trial is an impartial trier — “a
jury capable and willing to decide the case solely on
the evidence before it.” Smith v. Phillips, 455 U.S. 209,
217 (1982).
McDonough, 464 U.S. at 554. Smith, the precedent on
which McDonough relied, was a habeas case in which a
state prisoner claimed that he was denied due process
because of juror bias. Accordingly, to hold that the right
recognized in McDonough is not available to a defendant in
a state criminal case would be an “unreasonabl[e] refus[al]
to extend that principle to a new context where it should
apply.” Williams v. Taylor, 529 U.S. at 407; see Jones v.
Cooper, 311 F.3d 306, 310 (4th Cir. 2002); but see Montoya
v. Scott, 65 F.3d 405, 418-19 (5th Cir. 1995) (reserving
decision on question).
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McDonough, however, did not decide the issues raised in
this appeal. McDonough addressed the right of a party to
obtain a new trial upon making a particular showing, not
the admissibility of evidence to make that showing. As far
as the admissibility of evidence is concerned, the most that
may fairly be taken from McDonough is that a state may not
adopt evidence rules that entirely frustrate the ability of
objecting parties to make the showing specified in that
case. Cf. Smith, 455 U.S. at 215 (“This Court has long held
that the remedy for allegations of juror partiality is a
hearing in which the defendant has the opportunity to
prove actual bias.”) No further limitations on the power of
a state to fashion its own evidence rules may reasonably be
extracted from McDonough alone. Certainly McDonough
cannot be read as “clearly establish[ing]” constitutional
limits on state “no impeachment” rules.
C.
The Supreme Court decision that best addresses the
interplay between a defendant’s constitutional right to offer
evidence of juror misconduct and the traditional “no
impeachment” rule is Tanner v. United States, 483 U.S.
107, 116-17 (1987). In Tanner, the defendants argued that
the trial judge had erred in refusing to conduct an
evidentiary hearing at which jurors would be allowed to
testify about alcohol and drug use by jurors during the
trial. The defendants maintained that this testimony was
not barred by Federal Rule of Evidence 606(b), which
codifies the “no impeachment” rule. In addition, the
defendants contended that, even if the testimony was
prohibited by Rule 606(b), the trial judge’s refusal to receive
the evidence violated their constitutional right to a
competent jury. 483 U.S. at 116-17.
The Supreme Court disagreed. After holding that the
testimony at issue was barred by Rule 606(b), the Court
also rejected the defendants’ constitutional argument,
noting that the “no impeachment” rule is supported by
“long-recognized and very substantial concerns.” Id. at 126-
27. Tanner strongly suggests that the exclusion of evidence
of juror misconduct pursuant to the traditional “no
impeachment” rule is constitutional because of the
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important purposes that the rule has long been recognized
as serving. But of course Tanner does not necessarily mean
that the converse is true, i.e., that it is necessarily
unconstitutional for a state to adopt a version of the “no
impeachment” rule that bars more testimony than does the
traditional rule. In such a case, a court would have to look
beyond Tanner in order to determine whether this expanded
rule violated the Constitution or fell within the states’ broad
power to fashion the rules of evidence applicable in their
own courts. See Duckworth v. Owen, 452 U.S. 951, 952
(1981) (Rehnquist, J., dissenting from denial of certiorari).3
D.
Just how far beyond the traditional rule a jurisdiction
could go without violating the Constitution is an unsettled
question. The principal Supreme Court cases striking down
exclusionary state evidence rules involve situations bearing
little resemblance to those of the present case. In
Washington v. Texas, 388 U.S. 23 (1967), a state rule
prohibited a co-participant in a crime from testifying for the
defense. The Court stated that the Constitution is offended
“by arbitrary rules that prevent whole categories of defense
witnesses from testifying on the basis of a priori categories
3. Surprisingly, there are court of appeals cases that apply Federal Rule
of Evidence 606(b) in habeas cases challenging evidentiary rulings by
state courts. See, e.g., McDowell v. Calderon, 107 F.3d 1351, 1367 (9th
Cir. 1997), rev’d on other grounds, 130 F.3d 833, 835 (9th Cir. 1997) (en
banc)); Bibbins v. Dalsheim, 21 F.3d 13, 16-17 (2d Cir. 1994); Silagy v.
Peters, 905 F.2d 986, 1008-09 (7th Cir. 1990); Stockton v. Virginia, 852
F.2d 740, 743-44 (4th Cir. 1988). In our view, these decisions are wrong.
The Federal Rules of Evidence do not govern state court proceedings. See
Fed. R. Evid. 101. States are free to adopt whatever evidence rules they
wish so long as they do not violate the federal Constitution. See Burgett
v. Texas, 389 U.S. 109, 113-14 (1967). While Federal Rule of Evidence
606(b) applies in evidentiary hearings held in federal court under 28
U.S.C. § 2254, see Fed. R. Evid. 1101(e); Gosier v. Welborn, 175 F.3d
504, 511 (7th Cir. 1999), Rule 606(b) does not apply to state court
proceedings. Duckworth v. Owen, 452 U.S. 951, 952 (1981) (Rehnquist,
J., dissenting from denial of certiorari); Loliscio v. Goord, 263 F.3d 178,
187 (2d Cir. 2001); Doan v. Brigano, 237 F.3d 722, 735 n.8 (6th Cir.
2001).
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that presume them unworthy of belief.” Id. at 22. The Court
added that, because the rule at issue permitted a co-
participant to testify if the witness was called by the
prosecution or had previously been acquitted of the crime,
the rule could not “even be defended on the ground that it
rationally set[ ] apart a group of persons who are
particularly likely to commit perjury.” Id.
In Chambers v. Mississippi, 410 U.S. 284, 302 (1973), a
murder defendant was precluded from bringing to the jury’s
attention the fact that another man, McDonald, had
confessed to the murder in the presence of three witnesses.
At trial, the defendant called McDonald to the stand, but
McDonald denied committing the murder, and the
defendant was not permitted to cross-examine him about
the confession because state law prohibited a party from
impeaching the party’s own witness. Id. at 295. The
defendant then attempted to question the three witnesses
about the confession, but this evidence was ruled to be
inadmissible hearsay because the state did not recognize an
exception for declarations against penal, as opposed to,
pecuniary interest. Id. at 299. Noting that the state had not
even attempted to “defend” or “explain [the] underlying
rationale” of the rule prohibiting a party from impeaching
the party’s own witnesses, id. at 297, the Supreme Court
concluded that this rule, combined with the “mechanistic[ ]”
application of the hearsay rule, had deprived the defendant
of a fair trial “under the facts and circumstances” of the
case. Id. at 302-03.
In Crane v. Kentucky, 476 U.S. 683, 690 (1986), a
murder defendant’s confession was found before trial to
have been voluntary and thus admissible. At trial, the
defendant wanted to convince the jury that the confession
was unreliable due to the circumstances under which it
was given, but this evidence was ruled inadmissible. Id. at
685-86. The Supreme Court held that the defendant’s
conviction had to be reversed, observing that neither the
state supreme court nor the prosecution had “advanced any
rational justification for the wholesale exclusion of this
body of potentially exculpatory evidence.” Id. at 691.
In Rock v. Arkansas, 483 U.S. 44, 55 (1987), a homicide
defendant underwent hypnosis to refresh her memory.
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Because state law excluded all hypnotically refreshed
testimony, the defendant was not allowed to testify to any
facts that she had not reported prior to the hypnosis.
Observing that “restrictions of a defendant’s right to testify
may not be arbitrary or disproportionate to the purposes
they are designed to serve,” id. at 56, the Court held that
the defendant’s right had been abridged because no specific
determination had been made that the excluded testimony
was unreliable. Id. at 61-62. The Court noted that the state
court’s ruling had deprived the defendant of the testimony
of the only witness present at the scene and had infringed
the defendant’s interest in testifying in her own behalf, id.
at 57, “an interest that [the Court] deemed particularly
significant.” United States v. Scheffer, 523 U.S. 303, 315
(1998).
None of these cases clearly establishes just how far a
jurisdiction may go in excluding evidence of juror
misconduct. The only principle applicable to the present
case that these cases may be viewed as “clearly
establish[ing]” is that a state evidence rule may not severely
restrict a defendant’s right to put on a defense if the rule is
entirely without any reasonable justification.
III.
The “no impeachment” rule has been traced to a decision
by England’s Lord Mansfield, Vaise v. Delaval, 99 Eng. Rep.
944 (K.B. 1785), and the rule once carried the appellation
“Mansfield’s rule.” According to Wigmore, “with the prestige
of the great Chief Justice, [this rule] soon prevailed in
England, and its authority came to receive in the United
States an adherence almost unquestioned.” JOHN HENRY
WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2352 at 697
(McNaughton rev. 1961).
Several different forms of the rule were common in this
country, but in general a distinction was drawn between,
on the one hand, mistakes and misconduct by the jury
during deliberations and, on the other hand, improper
outside influences. See CHRISTOPHER B. MUELLER & LAIRD C.
KIRKPATRICK, FEDERAL EVIDENCE § 247 at 53-54 (2d ed. 1994).
In Mattox v. United States, 146 U.S. 140, 149 (1892), the
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Supreme Court stated that a “ ‘a juryman may testify to any
facts bearing upon the question of the existence of any
extraneous influence, although not as to how far that
influence operated upon his mind’ ” or as to “the motives
and influences which affected [the jury’s] decision.” See also
McDonald v. Pless, 238 U.S. 264, 269 (1915) (“[T]he losing
party cannot, in order to secure a new trial, use the
testimony of jurors to impeach their verdict.”); Hyde v.
United States, 225 U.S. 347 (1912).
Rule 606(b) of the Federal Rules of Evidence codifies this
approach. It provides:
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 that or any other
juror’s mind or emotions . . . except that a juror may
testify on the question whether extraneous prejudicial
information was improperly brought to the jury’s
attention.
FED. R. EVID. 606(b).
Pennsylvania has long followed a similar rule. Under the
governing cases at the time of Williams’s trial, a juror was
precluded from invalidating or impeaching a verdict by the
juror’s own testimony, e.g., Commonwealth v. Patrick, 206
A.2d 295, 297 (Pa. 1965) (collecting cases), unless the juror
alleged that an external factor had improperly influenced
the verdict. E.g., Commonwealth v. Boden, 486 A.2d 504,
506 (Pa. Super. Ct. 1984). The Pennsylvania Rules of
Evidence now provide for the same policy in language
nearly identical to the federal rule’s. Compare PA. R. EVID.
606(b) with FED. R. EVID. 606(b). See PA. R. EVID. 606(b) cmt.
(characterizing FED. R. EVID. 606(b) and PA. R. EVID. 606(b)
as “consistent with [existing] Pennsylvania law”). The
Supreme Court in McDonald explained the importance of
the public-policy concerns that underlie the “no
impeachment” rule:
[L]et it once be established that verdicts solemnly made
and publicly returned into court can be attacked and
set aside on the testimony of those who took part in
their publication and all verdicts could be, and many
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would be, followed by an inquiry in the hope of
discovering something which might invalidate the
finding. Jurors would be harassed and beset by the
defeated party in an effort to secure from them
evidence of facts which might establish misconduct
sufficient to set aside a verdict. If evidence thus
secured could be thus used, the result would be to
make what was intended to be a private deliberation,
the constant subject of public investigation — to the
destruction of all frankness and freedom of discussion
and conference.
238 U.S. at 267-68. In Tanner, 483 U.S. at 120-21, the
Court added:
Allegation of juror misconduct, incompetency, or
inattentiveness, raised for the first time days, weeks, or
months after the verdict, seriously disrupt the finality
of process. . . . Moreover, full and frank discussion in
the jury room, jurors’ willingness to return an
unpopular verdict, and the community’s trust in a
system that relies on the decisions of laypeople would
all be undermined by a barrage of postverdict scrutiny
of juror conduct.
IV.
A.
With this background in mind, we turn first to the
affidavit of Jewel Hayes. As noted, Hayes stated in her
affidavit that she had encountered a juror in the lobby of
the courthouse after the trial had ended and that the juror
had stated that “ ‘all niggers do is cause trouble’ ” and that
Hayes “should go back [to] where [she] came from.” Hayes
was not a juror, and although the habeas respondent
(hereinafter “the Commonwealth”) suggests that Hayes’s
evidence concerned the “internal workings” of the jury,
Appellee’s Br. at 18, this is plainly not correct. The incident
that Hayes recounted occurred after the trial ended and in
a public place; no other jurors were alleged to have been
present at the time; and the offensive remarks did not
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concern discussions among the jurors or anything that any
other juror had purportedly said or done.
No rational justification for the exclusion of this
testimony was provided by the state courts or the District
Court, and none has been offered in this appeal. Hayes’s
testimony does not fall within the original version of the “no
impeachment” rule. See Vaise, 99 Eng. Rep. at 944 (“The
Court cannot receive such an affidavit from any of the
jurymen themselves . . . but in every such case the Court
must derive their knowledge from some other source: such
as from some person having seen the transaction through
a window, or by some such other means.”). Nor does
Hayes’s testimony fall within the version of the “no
impeachment” rule adopted for use in Pennsylvania or the
federal courts. See Commonwealth v. Greevy, 114 A. 511,
512 (Pa. 1921) (“Public policy forbids the examination of
jurors, as to the reasons for their verdict”) (emphasis
added); Cluggage v. Swann, 4 Binn. 150, 159 (Pa. 1811)
(Yeates, J.) (stating that “the testimony of jurors ought not
to be admitted to invalidate their verdicts”) (emphasis
added); PA. R. EVID. 606(b); FED. R. EVID. 606(b). Although
Williams relied on Hayes’s affidavit in the PCRA Court, the
Superior Court, the Pennsylvania Supreme Court, and the
District Court, none of these courts explained why Hayes’s
evidence was inadmissible.
In defending the state courts’ treatment of this issue, the
Commonwealth notes without elaboration that Williams
“did not present Jewell [sic] Hayes’ live testimony at the
July 18, 1995 hearing,”4 Appellee’s Br. at 7, but we cannot
4. Williams asserts that Hayes was available to testify at the post-trial
hearing in 1985 but that he was precluded from questioning her because
the court did not allow him to attend the hearing and because his
attorney was also not present. Appellant’s Br. at 22 n.12. Williams also
asserts that Hayes was available to testify at another hearing on a
different issue in 1987. Id. With respect to the 1995 PCRA hearing,
Williams does not assert that Hayes was available to testify but instead
contends that the court ruled that Hayes’s testimony would be
inadmissible. Id. Based on our review of the transcript of this
proceeding, it is not clear to us that the PCRA court so held. During the
legal argument that preceded Montgomery’s testimony, neither counsel
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affirm the decision of the District Court on this ground.
When a federal constitutional claim is rejected without
explanation, we must presume that the decision was not
based on a state procedural rule. Coleman v. Thompson,
501 U.S. 722, 734-35 (1991). If the state courts had
refused to consider the evidence in Hayes’s affidavit on the
ground that the defense failed to produce her live testimony
at the PCRA hearing, we would have to determine whether
this was an adequate and independent state ground that
precluded our consideration of the merits of the federal
constitutional claim. But the state courts made no mention
of any such procedural bar, and we must therefore proceed
on the assumption that Williams’s federal constitutional
claim, insofar as it was based on Hayes’s evidence, was
rejected on the merits.
Finally, the Commonwealth’s brief argues that Hayes’s
evidence did not show that the juror in question lied during
voir dire. Appellee’s Br. at 15. We would be presented with
a different question in this appeal if the state courts had
made a factual finding that Hayes’s testimony was not
credible or that the juror in question, despite the comment
recounted by Hayes, had answered the pertinent voir dire
questions truthfully. In either of those circumstances, we
would be compelled to decide whether the state courts’
findings were “unreasonable” in light of the state court
record. 28 U.S.C. § 2254(d)(2). But the state courts made
no such findings. Because they did not do so and also
made no mention of a state procedural bar, we must
assume that the state courts ruled either that Hayes’s
testimony was inadmissible or was insufficient, even if
believed, to warrant relief. Either holding would represent
nor the court mentioned Hayes. The PCRA court ruled that Montgomery
could testify as to “extraneous” information but not as to what occurred
“in the courtroom, or in the jury room.” App. 90a. The court’s ruling did
not refer to Hayes, and since her affidavit concerned a comment made by
a juror in a public corridor, not in the courtroom or the jury room, it is
far from clear that the court precluded her testimony. Nevertheless, as
noted in text, because the Pennsylvania courts did not rely on a
procedural bar, we must assume that they ruled on the merits of
Williams’s constitutional claim.
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an unreasonable application of clearly established federal
law. On the facts presented to us, the failure to receive and
consider Hayes’s testimony for the purpose of determining
whether a juror lied during voir dire cannot be sustained
under 28 U.S.C. § 2254(d)(1).
V.
We now consider Montgomery’s evidence. Montgomery
made two allegations. First, she testified that, after the
guilty verdicts were returned but before the jury sentenced
the Williams brothers to death, the jurors were told by an
alternate that Ronald Williams had been convicted of two
other offenses and that his brother was wanted in two other
states. Second, she stated in her second affidavit that,
“when [she] was Juror No. 9,” other jurors made remarks
that suggested acute racial bias. App. 6a. We discuss each
allegation separately.
A.
With respect to the first allegation — regarding the jury’s
receipt of extraneous information after the guilty verdict
was returned — we see no ground for holding that Williams
is entitled to relief beyond that already awarded by the
Pennsylvania Supreme Court. There is no dispute that
Montgomery’s testimony about outside information received
by the jury falls within the “no impeachment” rule’s
exception. Indeed, the Court of Common Pleas twice
permitted Montgomery to testify about such “extraneous”
influence, and the Pennsylvania Supreme Court agreed that
this testimony was admissible. See Williams, 561 A.2d at
719; Williams, 522 A.2d at 1067-68. However, because the
jurors first received this information “at the sentencing
phase,” the state supreme court held that the proper
remedy was not a new trial but a reduction of the sentence
to one of life imprisonment. Williams, 561 A.2d at 719;
Williams, 522 A.2d at 1067 (citing 42 Pa. Cons. St.
§ 9711(h)). We see no basis for holding that anything more
is required by the federal Constitution.
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B.
1. We thus come to Montgomery’s allegation that jurors
made racially biased remarks at some point during the
trial. Williams first contends the state courts were obligated
to consider Montgomery’s testimony about these remarks
because the “no impeachment” rule simply does not apply
when a defendant seeks to introduce evidence to support “a
claim of juror misconduct committed during voir dire,”
Appellant’s Br. at 19, but this argument is plainly too
broad. If it were correct, a party could call jury members to
testify about statements made during actual jury
deliberations so long as the purpose for introducing the
evidence was to show that a juror had lied during voir dire.
However, both the Federal and the Pennsylvania Rules of
Evidence categorically bar juror testimony “as to any matter
or statement occurring during the course of the jury’s
deliberations” even if the testimony is not offered to explore
the jury’s decision-making process in reaching the verdict.
Indeed, Rule 606(b) was amended during the legislative
process precisely to make it clear that the Rule means what
its plain terms state in this regard. See Tanner, 483 U.S. at
122-25. Although the question now before us is not
whether Montgomery’s testimony was prohibited by Federal
Rule 606(b) (since Rule 606(b) did not govern the state
proceedings) or by the Pennsylvania version of the “no
impeachment” rule (since the enforcement of a state rule is
a matter for the state courts), the Supreme Court’s decision
in Tanner implies that the Constitution does not require the
admission of evidence that falls within Rule 606(b)’s
prohibition. See id. at 127. And in any event, Tanner surely
defeats any argument that it is “clearly established” in
Supreme Court jurisprudence that the Constitution
mandates the admission of such evidence.5 Thus, if the
5. Williams erroneously suggests that our decision in United States v.
Richards, 241 F.3d 335 (3d Cir. 2001), embraced the principle that the
“no impeachment” rule does not apply when evidence is offered to prove
juror misconduct. In Richards, the defendant moved for a new trial on
the ground that the jury foreman was a friend of the government’s
witness and that the juror had failed to describe their relationship
honestly during voir dire. See id. at 344. Citing McDonough, we held that
the District Court did not abuse its discretion in finding, based on its
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juror statements to which Montgomery referred occurred
during jury deliberations, the state courts did not violate
“clearly established Federal law” in refusing to consider
those statements.
2. But what if the statements were not made during jury
deliberations? As noted, Montgomery’s second affidavit did
not pin down exactly when or where the alleged statements
were made, stating only that they took place “when I was
Juror No. 9 in the trial of Commonwealth of Pennsylvania
vs. Ronald Williams and Raymond Williams.” Suggesting
that the comments did not occur during the deliberations,
Williams contends that the “no impeachment” rule does not
apply to statements made by jurors “before deliberations
began and outside the jury room,” Appellant’s Br. at 20,
but this broad argument is wrong. In Tanner, the Court
held that the “no impeachment” rule barred testimony
about juror alcohol and drug use during the trial. 483 U.S.
at 116-26. The Court did not accept Justice Marshall’s
argument in dissent that the rule did not apply to juror
conduct that occurred during the trial itself and not during
the deliberations, id. at 138, 140 (Marshall, J., dissenting),
and the Court rejected “a rigid distinction based only on
whether the event took place inside or outside the jury
room.” Id. at 117.
But while we reject Williams’s argument that location is
dispositive, we recognize that a narrower argument could
review of the voir dire transcript, that the juror in fact did not withhold
any relevant information. The District Court did not receive testimony
from any juror in making this determination, however, and so it had no
occasion to decide whether to invoke the “no impeachment” rule.
Richards, therefore, does not support Williams’s argument.
Williams also relies on Hard v. Burlington Northern Railroad, 812 F.2d
482 (9th Cir. 1987), in which a civil litigant sought to impeach a jury
verdict with affidavits by jurors claiming that one juror had
misrepresented the nature of his past employment by the defendant. See
id. at 484, 484 n.1. The District Court refused to admit the affidavits,
but the Ninth Circuit reversed, holding that Rule 606(b) does not bar
“[s]tatements which tend to show deceit during voir dire.” Id. at 485.
Since the affidavits in Hard recounted statements made during jury
deliberations, 812 F.2d at 483, it appears that the decision is
inconsistent with Federal Rule of Evidence 606(b).
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be made in support of the admission of the particular
testimony in dispute here. Specifically, if the other jurors’
alleged comments did not occur during deliberations and if
Montgomery’s testimony about those comments were
received for the limited purpose of showing that jurors lied
during voir dire, it could be argued that her testimony must
be allowed by Rule 606(b) because it would not concern
either (1) “any matter or statement occurring during the
course of the jury’s deliberations” or (2) “the effect of
anything” upon any juror’s decision-making or mental
processes in connection with reaching the verdict.
Nevertheless, while we appreciate this argument, we
cannot say that “clearly established Federal law, as
determined by the Supreme Court of the United States”
requires a state to admit such testimony. A state could
reasonably believe that such testimony would implicate “the
mental processes whereby the jurors arrived at their
verdict.” Commonwealth v. Zlatovich, 269 A.2d 469, 473
(Pa. 1970). After all, important voir dire questions typically
focus on matters that may well affect juror’s decision-
making processes and, therefore, allowing a juror to testify
for the purpose of showing that another juror lied during
voir dire may not be viewed as much different from
permitting an inquiry into the decision-making process
itself. In addition, allowing such juror testimony may be
thought to create the potential for the very sort of problems
that the “no impeachment” rule is designed to prevent,
including in particular the post-trial harassment of jurors
in the hope that one will recount a remark by a fellow juror
that can be construed as evidence that this juror lied
during voir dire.
We emphasize that we do not hold that testimony of the
type at issue is inadmissible under Rule 606(b) or any other
particular version of the “no impeachment” rule. We
express no view on those questions. We hold only that the
exclusion of such testimony is not irrational and does not
contravene or represent an unreasonable application of
clearly established federal law.
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C.
Williams’s final argument is that Montgomery’s testimony
should not have been excluded because evidence of racial
bias on the part of jurors should be excepted from the “no
impeachment” rule. In making this argument, Williams
relies chiefly on United States v. Henley, 238 F.3d 1111
(9th Cir. 2001), where a juror allegedly made racist remarks
while carpooling to and from the trial. See id. at 1113. The
actual holding in Henley did not concern racial bias.6 In
dictum, however, the court stated that “a powerful case can
be made that [the ‘no impeachment’ rule] is wholly
inapplicable to racial bias because, as the Supreme Court
has explained, ‘[a] juror may testify concerning any mental
bias in matters unrelated to the specific issues that the
juror was called upon to decide. . . .’ ” 238 F.3d at 1120
(citing Rushen v. Spain, 464 U.S. 114, 121 n.5 (1983)).
Williams urges us to follow Henley’s suggestion and hold
that the “no impeachment” rule does not apply to
Montgomery’s testimony because it concerns racial bias on
the part of jurors.
There are multiple problems with Williams’s argument.
First, this argument was never squarely presented to the
state courts. While the state courts were certainly aware of
the allegation that racist statements had been made by
jurors, and while Williams argued that testimony about the
statements should have been received, Williams never
argued that juror statements evidencing racial bias fall
outside the “no impeachment” rule. Indeed, as previously
noted, Williams’s state-court briefs made little if any effort
to grapple with the “no impeachment” rule. Thus, it
appears that Williams’s current argument is procedurally
defaulted. See PA. CONS. STAT. ANN. § 9545(b).
Second, even if we reach the merits of Williams’s
argument, our limited standard of review under 28 U.S.C.
§ 2254(d)(1) precludes relief. Under that provision, “clearly
established Federal law” “refers to the holdings, as opposed
to the dicta, of [the Supreme] Court’s decisions as of the
6. The court held that Federal Rule of Evidence 606(b) did not preclude
the admission of juror statements not made during deliberations when
offered to show that the juror lied during voir dire. Id. at 1121.
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time of the relevant state-court decision.” Williams v.
Taylor, 529 U.S. at 412. The discussion in Henley on which
Williams relies is dictum in a Court of Appeals opinion that
came well after the state-court decisions in Williams’s PCRA
appeal.
Nor does the Supreme Court’s decision in Rushen, which
Henley cited, provide a basis for habeas relief in this case.
The statement in Rushen on which the Ninth Circuit relied
was also dictum and arose in a different context. In
Rushen, the Supreme Court considered and rejected the
argument that a bizarre development during a long criminal
trial had resulted in a violation of a defendant’s right to an
impartial jury. The defendant was tried in state court for
murder and other crimes stemming from a prison escape,
and during voir dire potential jurors were asked whether
they had any experiences with violent crime. Rushen, 464
U.S. at 115. Juror Patricia Fagan answered that she had
not, but during the trial there was testimony about an
informant named Pratt, and Fagan then recalled for the
first time that several years earlier Pratt had been convicted
of killing a woman who had been one of Fagan’s childhood
friends. Id. at 115-16. Fagan promptly spoke ex parte with
the trial judge, who assured her that she could continue to
serve so long as the incident did not taint her objectivity.
Id. at 116. She promised that it would not. Id. The parties
did not learn of Fagan’s private colloquy with the judge
until after the trial had concluded and the jury had found
the defendant guilty. Id.
In a hearing on a defense motion for a new trial, Fagan
testified that her recollection of the murder of her friend
had not affected her impartiality. Id. at 116, 120-21. She
also testified that she had told other jurors that she
personally knew Pratt’s murder victim. Id. at 116. The
highest state court to consider the issue found that Fagan’s
conversation with the judge during the trial was harmless
beyond a reasonable doubt because the jury’s deliberations
as a whole were unbiased. Id. at 117. However, a federal
District Court granted a writ of habeas corpus, and the
Court of Appeals affirmed on the ground that an
unrecorded ex parte communication between a trial judge
and juror can never be harmless. Id. In a per curiam
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opinion, the Supreme Court reversed, holding that the state
courts’ findings that the jury deliberations were not biased
were entitled to deference and were adequately supported
by the record. Id. at 120-21.
The statement cited by the Ninth Circuit appears in a
footnote concerning the post-trial hearing at which Fagan
testified. In the text of its opinion, the Supreme Court
wrote: “Juror Fagan never willfully concealed her
association with [the murder of her friend], and she
repeatedly testified that, upon recollection, the incident did
not affect her impartiality.” Id. In a footnote at the end of
this sentence, the Court added:
A juror may testify concerning any mental bias in
matters unrelated to the specific issues that the juror
was called upon to decide and whether extraneous
prejudicial information was improperly brought to the
juror’s attention. But a juror generally cannot testify
about the mental process by which the verdict was
arrived.
Id. at 121 n.5 (internal citations omitted).
We understand this passage to mean that, although the
“no impeachment” rule barred Fagan from testifying as to
whether her recollection of the murder of her friend played
any role in “the mental process by which the verdict was
arrived,” that rule did preclude her from testifying as to
whether she was impartial (whether she harbored a “mental
bias in [a] matter[ ] unrelated to the specific issue” in the
case) and whether extraneous information (her recollection
of the murder) was brought to the attention of the other
jurors. These statements, which merely restated well-settled
law, fall well short of clearly establishing the rule of
constitutional law on which Williams’s argument here must
rest, namely, that a criminal defendant has a federal
constitutional right to introduce juror testimony to prove
racial bias on the part of jurors irrespective of any
restrictions imposed by the “no impeachment” rule.
A leading evidence treatise states that the application of
Federal Rule of Evidence 606(b) to evidence of racial bias on
the part of jurors is “problematic.” 3 MUELLER & KIRKPATRICK,
supra, § 248 at 69. The treatise goes on to say that
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“[a]rguably the rule bars juror testimony or statements on
such points” but that “[c]onceivably such proof could be
called outside influence.” Id.
Our role in this case, however, is not to interpret Rule
606(b) or any other version of the “no impeachment” rule
but merely to determine whether the state courts
contravened or unreasonably applied “clearly established
Federal law, as determined by the Supreme Court.” Neither
Rushen nor any other Supreme Court decision clearly
establishes that it is unconstitutional for a state to apply a
“no impeachment” rule that does not contain an exception
for juror testimony about racial bias on the part of jurors.
Accordingly, Williams’s argument must be rejected.
VI.
For the reasons set out above, we vacate the order of the
District Court and remand for an evidentiary hearing at
which Williams has the opportunity to make the showing
mandated by McDonough.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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