Colbert v. NH State Prison CV-95-473-B 07/29/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James Colbert

v. Civil No. 95-473-B

Michael J. Cunningham, Warden New Hampshire State Prison

O R D E R

James Colbert asserts in a habeas corpus petition that the

state court's substitution of an alternate juror for an

incapacitated juror during deliberations violated his federal due

process rights. He also contends that his counsel's failure to

properly inform him of his rights pertaining to the ill juror and

to object to the substitution of the alternate juror violated his

right to effective assistance of counsel. For the reasons that

follow, I deny his petition.

BACKGROUND1

Colbert confessed to killing his wife and three daughters,

but argued at trial that he was not guilty of murder because he

1 Unless otherwise noted, the background facts are taken from the state court's Order on Defendant's Motions to Set Aside Verdicts, No. 91-S-863-866 (July 1, 1993) and State v. Colbert,

(1995). See

(d). was insane. Fifteen jurors were impanelled for Colbert's murder

trial, which began on July 28, 1992, and all fifteen sat through

the trial before the alternates were designated. At the

conclusion of the trial, the court chose three jurors at random

as alternates and then designated a jury foreperson. The three

alternates remained in the courthouse separated from the jury.

After deliberating for four hours on Friday afternoon,

August 7, the jury notified the court that it wanted to adjourn

for the weekend and listen to the tape of Colbert's confession

when it resumed its deliberations. The court then met with the

alternates and the jury members separately to remind them of

their obligations to preserve their impartiality.

The twelve jury members and three alternates returned on

Monday. However, shortly after the jury resumed its

deliberations, the jury's foreperson reported that she was ill.2

The judge summoned counsel who were informed of the situation

although no record was made of their discussion. Defense counsel

asked the judge to meet with the ill juror, on the record but

without counsel present, to determine whether she could continue.

2 A contemporaneous record was not made of events pertaining to the juror's illness and dismissal although the circumstances are summarized in the state court's July 1, 1993, order.

2 Defense counsel also met with Colbert to explain the

circumstances, and he expressed concern that the judge was

meeting with the juror without counsel. In the meantime, the

juror had become so ill that she was excused from jury duty

without meeting with the judge.

After the ill juror was dismissed, court reconvened on the

record with counsel, Colbert, the remaining eleven jurors, and

the three alternates. The court explained that the foreperson

had been excused because of her illness and guestioned the

alternates about their impartiality:

First, let me ask the people who were chosen as alternates last week who have remained in the courthouse, . . . , have you -- any of you three -- I've already asked the other jurors that earlier this morning -- have you discussed the case with anybody, have you heard anything about the case, have you read anything about the case or do you have any thing at all that you need to report to me which might impact on your ability to deliberate in this case in a fair and impartial manner?

Trial Transcript, August 10, 1992 at 5. All three alternates

answered "no" to the judge's guestion, and the court chose an

alternate at random to serve on the jury in place of the

dismissed juror. The court then chose a new jury foreperson at

random and instructed the new jury:

I want to tell that you you're [sic] going to have to begin your deliberations all over again; you may not make reference to prior discussions in the jury

3 deliberation room, all right. You're going to have to begin from the top. If you have reviewed any evidence already, you're going to have to review it all again. For example, it's the Court's understanding that you had asked for a tape recorder. If you have played any tape that was -- that is in evidence, you must all listen to it again, okay. Also because you're beginning your deliberations again. I'm going to ask the bailiffs to take from you the guestions and answers which were -- the guestions that you gave to the Court last Friday and the answers that I wrote to you, the bailiff is going to take those and I don't want you to consider those. I want you to begin your deliberations afresh, okay.

I d . at 6-7.

Colbert's counsel did not object to the juror substitution

or the proceedings of the reconstituted jury. The new jury did

not submit guestions to the court or ask to listen to the tape of

Colbert's confession. After deliberating for two hours, the new

jury rejected Colbert's insanity plea and determined that he was

guilty of first degree murder.

Several months after Colbert was convicted, the New

Hampshire Supreme Court determined that state law prohibits a

judge from substituting an alternate juror for a sitting juror

after the jury begins its deliberations.3 State v. Dushame, 136

-A:13, the state law cited by the court in Dushame, has been amended to permit an alternate juror to be substituted at any time prior to the verdict if a sitting juror is disgualified, becomes ill, or dies.

(1992). Relying on this precedent, Colbert

sought a new trial in the state superior court. He also argued

that: (1) the substitution of the alternate juror violated his

right to due process of law and his state constitutional right to

a twelve-person jury; (2) the trial court's failure to conduct

and record a colloguy with the dismissed juror violated his

rights under the state constitution; and (3) trial counsel was

constitutionally ineffective because he failed to object to the

alternate's substitution. The Superior Court denied his motions

and he appealed. The New Hampshire Supreme Court determined that

Colbert was procedurally barred from challenging the alternate's

substitution because he failed to make a timely objection. State

v. Colbert,

(1995). It rejected his state

constitutional claims on their merits. I d . at 370-71. Finally,

it determined that his ineffective assistance of counsel claim

failed because he had not proved actual prejudice. I d . at 372-

73.

In his petition for habeas corpus relief, Colbert again

argues that: (1) the substitution of an alternate juror after the

jury commenced its deliberations violated his due process rights;

and (2) he was denied his right to counsel because trial counsel

was constitutionally ineffective. The respondent. Warden

5 Cunningham, moves for summary judgment.

STANDARD OF REVIEW

In habeas corpus proceedings, as in other civil actions,4

summary judgment is appropriate if the facts taken in the light

most favorable to the nonmoving party show that no genuine issue

of material fact exists and that the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c); Guzman-

Rivera v. Rivera-Cruz,

(1st Cir. 1994). A "material

fact" is one "that might affect the outcome of the suit under the

governing law," and a genuine factual issue exists if "the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party." Anderson v. Liberty Lobby, Inc.,

(1986). When the facts are undisputed, the moving

party must establish that it is entitled to judgment as a matter

of law. Desmond v. Varrasso (In re Varrasso),

(1st Cir. 1994). I apply these principles in considering the

respondent's motion for summary judgment.

4 Fed. R. Civ. P. 81(a)(2); see also Williams v. Scott,

(5th Cir. 1994), cert, denied, 115 S. C t . 959 (1995) .

6 ANALYSIS

Colbert's petition focuses on the trial court's decision to

replace the ill juror with an alternate during the jury's

deliberation. He contends that the substitution violated his

federal due process rights and that his trial counsel's

representation was constitutionally deficient for failing to

inform him of his rights concerning the ill juror and failing to

object to the substitution of the alternate juror.

The New Hampshire Supreme Court did not address the merits

of Colbert's due process claim because he failed to make a timely

objection when the issue first arose. Colbert,

.

New Hampshire has consistently applied its well-established rule

that issues must be preserved by a timely objection. See, e.g..

State v. Rvan,

(1992). Moreover, the New

Hampshire Supreme Court has not recognized a plain error

exception to its contemporaneous objection reguirement. State v.

Nutter,

(1991). Under these circumstances, a

federal court cannot address the merits of a defaulted claim in a

habeas corpus petition "unless the prisoner can demonstrate cause

for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider

7 the claims will result in a fundamental miscarriage of justice.5

Coleman v. Thompson,

22 , 750 (1991).

Colbert has asserted ineffective assistance of counsel,

based in part on his counsel's failure to object to the juror

substitution. Constitutionally deficient representation, as

described in Strickland v. Washington,

(1984), may

serve as cause for a procedural default. Coleman,

; Burks v. Dubois,

(1st Cir. 1995). Even

assuming, however, that Colbert could show that his counsel's

trial performance fell below an objective standard of reasonable

effectiveness, Strickland,

, he would still

have to demonstrate that he suffered actual prejudice, id . . As

prejudice is also an essential element of the cause and prejudice

standard, and is dispositive in that context, I choose to address

the guestion of prejudice without first determining that Colbert

has established cause for the default.

5 Colbert invokes the plain error rule used by federal courts when considering procedurally defaulted claims on direct appeal. See Fed. R. Civ. P. 52(b); United States v. Olano,

(1993). However, the plain error rule is not available in habeas corpus proceedings to overcome a procedural default in state court. Engle v. Issac,

(1982) ("burden of justifying federal habeas relief for state prisoners is greater than the showing reguired to establish plain error on direct appeal"). To establish prejudice, Colbert must show "'not merely that

the errors at . . . trial created a possibility of prejudice, but

that they worked to his actual and substantial disadvantage,

infecting his entire trial with error of constitutional

dimensions.'" Murray v. Carrier,

(1986)

(guoting United States v. Fradv,

(1982)).

Therefore, Colbert must demonstrate that he did not receive a

fair trial as a result of the substitution of the alternate

jur o r .

The Third Circuit has recently noted that most federal

courts that have considered the issue have held that juror

substitution during deliberations does not cause an unfair trial

if the court followed precautions to insure the impartiality and

proper function of the reconstituted jury and if no actual

prejudice is shown to have resulted from the substitution.

Claudio v. Snyder,

(3d Cir. 1995)

(collecting cases), cert, denied,

(1996).

Important considerations are whether the substitute juror had a

full opportunity to hear the evidence at trial, whether the court

guestioned the substitute about outside influences or bias,

whether the court instructed the reconstituted jury to begin

their deliberations anew, and the length of the jury's deliberations before and after substitution. See, e.g., id.;

United States v. McFarland,

(9th Cir.

1994), cert, denied,

(1995); United States v.

Quiroz-Cortez,

(5th Cir. 1992); United States

v. Phillips,

(5th Cir. 1981), cert, denied,

(1982).

In this case, the alternate jurors participated in the trial

as fully as the other jurors, and they were sequestered when the

jury began deliberations. After the ill juror was dismissed, the

court questioned the alternates about their impartiality in the

case, and finding no problems, chose one alternate at random to

replace the dismissed juror. The court then appointed a new

foreperson and instructed the reconstituted jury to start their

deliberations again from the beginning. Thus, the court fully

complied with the procedural precautions that were necessary to

insure that the defendant received a fair trial.

Colbert nevertheless asserts that because the original jury

deliberated for four hours without reaching a verdict, and the

reconstituted jury deliberated for only two hours before reaching

its verdict against him, "it is therefore clear that the error of

admitting the alternate into an already deliberating jury

affected the defendant's due process rights."

10 In United States v. McFarland, the jury deliberated for two

and one half hours before informing the court that it was

deadlocked.

(9th Cir. 1994). The court then

dismissed a juror, at the juror's request, substituted an

alternate juror, and recessed deliberations for the four-day

Thanksgiving holiday.

When the jurors returned on Monday,

the court explained that the new jury would have to "go over some

ground that you have previously plowed." I d . at 1511. The

reconstituted jury began deliberations and reached a guilty

verdict in less than two hours.

Despite the difference in

outcome after the juror was substituted and the short time

required for new deliberations, the Ninth Circuit concluded that

the defendant had not shown actual prejudice. I d . at 1515. Cf.

United States v. Lamb,

(9th Cir. 1975) (Ninth

Circuit reversed conviction where jury's guilty verdict after

four hours of deliberations refused by court for failure to

comply with instructions and a new jury, with a juror replaced by

an alternate, returned guilty verdict after only twenty-nine

minutes of additional deliberations).

Like the Ninth Circuit in McFarland, I conclude that the

defendant cannot prove actual prejudice merely by demonstrating

that the jury deliberated for less time after an alternate is

11 substituted for a sitting juror. Despite the possibility for

coercion or undue influence caused by or exerted on the new

juror, see Quiroz-Cortez,

, and the relatively

short time of the new jury's deliberations, Colbert has not

converted a theoretical possibility into a probability of actual

prejudice in this case. The jurors were properly instructed, and

jurors are presumed to have followed the court's instruction to

begin again. McFarland,

(citing Olano,

). The record contains no evidence that any juror

complained of improper influence or coercion, and the jury was

individually polled and accepted the verdict. See United States

v. Morris,

(1st Cir. 1992) ("A juror's

acceptance of the verdict upon polling constitutes prima facie

evidence of his/her participation in deliberations, lack of

irregularity therein, and concurrence in the outcome."), cert.

denied,

(1993). Nor is this one of those relatively

rare cases where prejudice can be conclusively presumed. See,

e.g., Scarpa v. Dubois,

(1st Cir. 1994), cert.

denied,

(1995). Under these circumstances, and

because Colbert has produced no other evidence of prejudice, I

conclude that the juror substitution, and his counsel's failure

to object, did not unfairly prejudice his case. Finally, Colbert

12 has not presented the extraordinary case in which a petitioner is

unable to meet the cause and prejudice standard but,

nevertheless, can demonstrate that a constitutional violation has

caused a miscarriage of justice by allowing the conviction of one

who is not guilty. See Murray,

; Burks,

.

Having failed to demonstrate actual prejudice, Colbert

cannot overcome the procedural default. Nor can he succeed with

his ineffective assistance of counsel claim. Accordingly, the

respondent. Warden Cunningham, is entitled to summary judgment.

CONCLUSION

For the foregoing reasons, the respondent's motion for

summary judgment (document no. 9) is granted.

SO ORDERED.

Paul Barbadoro United States District Judge July 29, 1996

cc: Jonathan Saxe, Esg. Michael Ramsdell, Esg.

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