April 24, 2014

Tenth Circuit: Jury Tampering Habeas Claim Remanded for Remmer Hearing

The Tenth Circuit Court of Appeals published its opinion in Stouffer v. Trammell on Thursday, December 26, 2013.

An Oklahoma state court jury convicted Bigler Jobe “Bud” Stouffer of first degree murder of one victim and shooting with intent to kill another victim. The jury sentenced him to death for the murder and to 100 years imprisonment for the shooting. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed on direct appeal and denied post-conviction relief. Stouffer sought habeas relief in federal court under 28 U.S.C. § 2254, challenging his conviction and death sentence on nine grounds. The district court denied relief but granted a certificate of appealability (“COA”) on four grounds: (1) jury tampering, (2) prosecutorial misconduct, (3) victim impact testimony, and (4) cumulative error.

The Tenth Circuit first analyzed the jury tampering claim. During the penalty phase of the trial, defense counsel noticed the husband of a juror, Stacey Vetter, in the courtroom. The husband was “‘laughing, joking, handshaking, and embracing’ with a former roommate of shooting victim Doug Ivens. The roommate was sitting with Mr. Ivens’s family.” Defense counsel asked to question the Vetters as to whether they had communicated about the case. Mr. Vetter had left the building, so counsel questioned a sheriff’s deputy who had observed repeated non-verbal communications between Mr. Vetter and his wife. The judge refused a request for mistrial, saying the defense had produced only speculation. The judge did not address counsel’s request for more investigation.

The Tenth Circuit held that the Vetters’ courtroom communications were improper and the trial court and OCCA failed to adequately investigate the communications. Because the trial court was apprised of the fact that an extrinsic influence may have tainted the trial, the proper remedy was a Remmer hearing to determine the circumstances of the improper contact and the extent of the prejudice, if any, to the defendant. The court also held that the federal district court erred in conduct a harmlessness analysis without holding an evidentiary hearing.

The Tenth Circuit affirmed denial of relief on the grounds of prosecutorial misconduct, victim impact testimony and cumulative error. The court reversed the district court’s holding that the improper external juror communication was harmless and remanded to the district court to conduct a Remmer hearing to determine whether this improper communication influenced the jury.

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