Earl B. Gibson v. Thomas L. Clanon, Superintendent, Vacaville Med. Facility, Vacaville, California, Lawrence Just. v. George Sumner, Superintendent, Corr. Training Facility, Soledad, California, 633 F.2d 851 (9th Cir. 1980). · Go Syfert
Search
Earl B. Gibson v. Thomas L. Clanon, Superintendent, Vacaville Med. Facility, Vacaville, California, Lawrence Just. v. George Sumner, Superintendent, Corr. Training Facility, Soledad, California, 633 F.2d 851 (9th Cir. 1980). Cases Citing This Book View Copy Cite
G Cite
cited 2× by 1 distinct case, last quoted 2007 · …he fact that at least two jurors believed that it was necessary to obtain more evidence is, by itself, an indication that there may have been a need to resolve some lingering hesitation or uncertainty. at p. 855 ✓
cited 2× by 1 distinct case · …it does not seem possible that the jury would have deliberated nine hours over days if the jurors did not have serious questions ✓
143 citation events (28 in the last 25 years) across 28 distinct courts.
Strongest positive: Fields v. Brown (ca9, 2007-09-10)
Treatment trajectory · 1980 → 2026 · click a year to view as-of
1980 2003 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Fields v. Brown (6×) also: Cited "see"
9th Cir. · 2007 · signal: see · quote attribution · 2 verbatim quotes · confidence high
he fact that at least two jurors believed that it was necessary to obtain more evidence is, by itself, an indication that there may have been a need to resolve some lingering hesitation or uncertainty.
discussed Cited as authority (quoted) (DP) (HC) Frye v. Calderon
E.D. Cal. · 2022 · quote attribution · 1 verbatim quote · confidence low
it does not seem possible that the jury would have deliberated nine hours 13 over several days if the jurors did not have serious questions as to the credibility of the 14 eyewitnesses
discussed Cited as authority (quoted) Richard Reyes v. W. Montgomery
9th Cir. · 2018 · signal: see also · quote attribution · 1 verbatim quote · confidence low
t does not seem possible that the jury would have deliberated nine hours over several days if the jurors did not have serious questions as to the credibility of the eyewitnesses.
examined Cited as authority (quoted) Avila v. Los Angeles Police Department (2×)
9th Cir. · 2014 · quote attribution · 2 verbatim quotes · confidence low
it does not seem possible that the jury would have deliberated nine hours over days if the jurors did not have serious questions
cited Cited as authority (rule) United States v. Manuel Vasquez-Perez
9th Cir. · 2023 · confidence medium
Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir. 1980).
discussed Cited as authority (rule) State Of Washington v. Dejon Lee Payne
Wash. Ct. App. · 2017 · confidence medium
App. at 273 . "[A] new trial must be granted unless it can be concluded 'beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict." United States v. Bagley, 641 F.2d 1235, 1242 (9th Cir.1981)(quoting Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir. 1980)).
discussed Cited as authority (rule) United States v. Montes
9th Cir. · 2011 · confidence medium
See United States v. Littlefield, 752 F.2d 1429, 1432 (9th Cir.1985) (holding that a new trial for tax fraud involving illegal shelters was required where a juror brought into the jury room a Time Magazine article highlighting fraudulent tax schemes as a problem of national concern and deploring light sentences imposed on participants); Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980) (holding that reversal was required where jurors obtained evidence regarding the rarity of defendant’s blood type from a medical encyclopedia notwithstanding that the trial court previously ruled that such ev…
discussed Cited as authority (rule) Madrigal v. Yates
C.D. Cal. · 2009 · confidence medium
See, e.g., Mayfield v. Woodford, 270 F.3d 915, 932 (9th Cir.2001) (one and one-half day deliberation during penalty phase shows close case, when jury arrived at guilty verdict in two hours); Lawson v. Borg, 60 F.3d 608, 613 (9th Cir.1995) (five day deliberation shows close case); United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir.1993) (deliberations over two days show close case); Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980) (nine hours of deliberation shows close case).
discussed Cited as authority (rule) Mendoza v. Runnels
9th Cir. · 2007 · confidence medium
Cf. Marino v. Vasquez, 812 F.2d 499, 503-05 (9th Cir.1987) (looking up the term malice prejudiced the jury’s verdict); Gibson v. Clanon, 633 F.2d 851, 853-55 (9th Cir.1980) (jurors’ use of medical encyclopedia prejudiced the jury’s verdict).
discussed Cited as authority (rule) Hamilton v. Ayers
E.D. Cal. · 2006 · confidence medium
See Parker v. Gladden, 385 U.S. 363, 363-65 , 87 S.Ct. 468 , 17 L.Ed.2d 420 (1966) (misconduct for bailiff to tell the deliberating jury that defendant was a “wicked fellow” who was guilty and to tell another juror the Supreme Court would correct any improper guilty verdict); Marino v. Vasquez, 812 F.2d 499, 502-03, 505 (9th Cir.1987) (misconduct for juror to consult a dictionary for the definition of “malice”); Bayramo *1142 glu v. Estelle, 806 F.2d 880, 882-84, 887-88 (9th Cir.1986) (misconduct for juror to call a law librarian to inquire about the differences, including penalties, b…
discussed Cited as authority (rule) Fiu v. American Samoa Government
amsamoa · 2004 · confidence medium
Exposure of the jury to facts not in evidence could deny a defendant “the rights of confrontation, cross-examination, and the assistance of counsel.” Marino v. Vasquez, 812 F.2d 499, 505 (9th Cir. 1987) (quoting Gibson v. Clanon, 633 F.2d 851, 853 (9th Cir. 1980)).
discussed Cited as authority (rule) United States v. Varoudakis
1st Cir. · 2000 · confidence medium
See Santana, 175 F.3d at 67 ; United States v. Ottersburg, 76 F.3d 137, 140 (7th Cir.1996) .(“The length of the jury’s deliberations makes clear that this case was not an easy one.”); Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980) (“The states case against [the defendants] is a strong one.
discussed Cited as authority (rule) State v. Watkins
Minn. Ct. App. · 1995 · confidence medium
Cox, 322 N.W.2d at 558, 559 (test also characterized as “no reasonable possibility that the extrinsic material could have affected the verdict,” citing Gibson v. Clanon, 633 F.2d 851, 853-54 (9th Cir.1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981)).
cited Cited as authority (rule) Borja v. Prunty
S.D. Cal. · 1994 · confidence medium
Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir.1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981).
examined Cited as authority (rule) State v. Miller (4×)
Ariz. · 1994 · confidence medium
See id.; Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir.1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981).
discussed Cited as authority (rule) United States v. Louis Gomez-Gomez
9th Cir. · 1994 · confidence medium
United States v. Kupau, 781 F.2d 740, 744 , cert. denied, 497 U.S. 823 (1986) (consulting dictionary was error, but harmless); Gibson v. Clanon, 633 F.2d 851, 853-55 (9th Cir.1980), cert. denied, 450 U.S. 1035 (1981) (consultation of two encyclopedias by two jurors is reversible error, necessitating writ of habeas corpus). 16 Gomez seeks a new trial based on the jury's use of a magnifying glass to examine the fingerprints on the tape used to wrap the packages of drugs.
discussed Cited as authority (rule) State v. Balisok (2×)
Wash. Ct. App. · 1993 · confidence medium
This inquiry necessarily involves consideration of the purpose for which the extraneous evidence was interjected into the jury's deliberations. "[A] new trial must be granted unless 'it can be concluded beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict.'" United States v. Bagley, 641 F.2d 1235, 1242 (9th Cir.) (quoting Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir. 1980)[, cert, denied, 450 U.S. 1035 (1981).])[, cert, denied, 454 U.S. 942 (1981)] . . ..
discussed Cited as authority (rule) State Ex Rel. Trump v. Hott
W. Va. · 1992 · confidence medium
Courts have explained that the reasonable possibility test "is equivalent in severity to the harmless error rule applicable to constitutional errors under Chapman [v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) ].’’ Gibson v. Clanon, 633 F.2d 851, 853 (9th Cir.1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981).
discussed Cited as authority (rule) State v. Grant
N.J. Super. Ct. App. Div. · 1992 · confidence medium
It is impossible to offer evidence to rebut it, to offer a curative instruction, to discuss its *586 significance in argument to the jury, or to take other tactical steps that might ameliorate its impact. [633 F.2d at 854].
discussed Cited as authority (rule) United States v. Martinez Malone
9th Cir. · 1991 · confidence medium
Gibson v. Clanon, 633 F.2d 851, 853 (9th Cir.1980), cert. denied 450 U.S. 1035 (1981). 36 It is apparent that any possible adverse effect upon the jury from the discovery of the homeowner's notice was eliminated by the testimony that was heard upon reopening.
discussed Cited as authority (rule) United States v. Caro-Quintero (2×) also: Cited "see"
C.D. Cal. · 1991 · confidence medium
For the second step, “[t]he proper question is ‘whether it can be concluded beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict.’ ” Marino, supra, 812 F.2d at 504 (citing Gibson v. Clanon, 633 F.2d 851 at 855 (9th Cir.1980)).
discussed Cited as authority (rule) United States v. Alex Simmons
unknown court · 1991 · confidence medium
See, e.g., Lacy v. Gardino, 791 F.2d 980, 983 (1st Cir.) ("Jury exposure to facts not admitted during trial violates the sixth amendment right to trial by jury by permitting evidence to reach the jury which has not been subjected to confrontation or cross-examination."), cert. denied, 479 U.S. 888 , 107 S.Ct. 284 , 93 L.Ed.2d 259 (1986); Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir.1980) ("[W]hen a jury considers facts that have not been introduced in evidence, a defendant has effectively lost the rights of confrontation, cross-examination, and the assistance of counsel with regard to jury con…
discussed Cited as authority (rule) United States v. Hortensia Navarro-Garcia
9th Cir. · 1991 · confidence medium
“The ‘reasonable possibility’ test of [United States v.] Vasquez is equivalent in severity to the harmless error rule applicable to constitutional errors under Chapman [v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) ].” Gibson v. Clanon, 633 F.2d 851, 853 (9th Cir.1980), cert. denied 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981).
cited Cited as authority (rule) State v. Hamilton
Fla. · 1991 · confidence medium
Id. (quoting Gibson v. Clanon, 633 F.2d 851, 853 (9th Cir.1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981)).
discussed Cited as authority (rule) United States v. Simmons
unknown court · 1991 · confidence medium
See, e.g., Lacy v. Gardino, 791 F.2d 980, 983 (1st Cir.) (“Jury exposure to facts not admitted during trial violates the sixth amendment right to trial by jury by permitting evidence to reach the jury which has not been subjected to confrontation or cross-examination.”), cert. denied, 479 U.S. 888 , 107 S.Ct. 284 , 93 L.Ed.2d 259 (1986); Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir.1980) (“[Wjhen a jury considers facts that have not been introduced in evidence, a defendant has effectively lost the rights of confrontation, cross-examination, and the assistance of counsel with regard to ju…
discussed Cited as authority (rule) Richards v. Overlake Hospital Medical Center (2×)
Wash. Ct. App. · 1990 · confidence medium
Any doubt that the misconduct affected the verdict must be resolved against the verdict. "[A] new trial must be granted unless `it can be concluded beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict.'" United States v. Bagley, 641 F.2d 1235, 1242 (9th Cir. 1981) (quoting Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980))[.] State v. Briggs, 55 Wn.
discussed Cited as authority (rule) United States v. Nestor Galindo, United States of America v. Miriam Galindo
9th Cir. · 1990 · confidence medium
As we have stated, “the Vasquez test is compelled by constitutional considerations.” Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir.1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981).
discussed Cited as authority (rule) George Lee Hughes v. R.G. Borg
9th Cir. · 1990 · confidence medium
When the jury breaches this duty by considering extraneous facts not introduced in evidence, “a defendant has effectively lost the rights of confrontation, cross-examination, and the assistance of counsel with regard to jury consideration of the extraneous evidence.” Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir.1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981).
discussed Cited as authority (rule) State v. Briggs
Wash. Ct. App. · 1989 · confidence medium
This *56 inquiry necessarily involves consideration of the purpose for which the extraneous evidence was interjected into the jury's deliberations. "[A] new trial must be granted unless 'it can be concluded beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict.'" United States v. Bagley, 641 F.2d 1235, 1242 (9th Cir. 1981) (quoting Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir. 1980)); see also United States v. Bagnariol, 665 F.2d 877 , 887 n.6 (9th Cir.1981); Llewellyn v. Stynchcombe, 609 F.2d 194, 195 (5th Cir. 1980) ("a defendant is entitled to a new trial unles…
examined Cited as authority (rule) Donald Dickson v. G.E. Sullivan, Superintendent, Oregon State Correctional Institution (4×) also: Cited "see, e.g."
9th Cir. · 1988 · confidence medium
Marino, 812 F.2d at 505 ; Gibson, 633 F.2d at 854.
discussed Cited as authority (rule) Gorz v. State
Alaska Ct. App. · 1988 · confidence medium
Gibson v. Clanon, 633 F.2d 851, 854-55 (9th Cir. 1980); Dyer v. State, 168 Ind.App. 278 , 342 N.E.2d 671, 674 (1976); Barker v. State, 95 Nev. 309 , 594 P.2d 719, 721-22 (1979); Chapman v. California, 386 U.S. 18, 23-24 , 87 S.Ct. 824, 827-828 , 17 L.Ed.2d 705 (1967).
discussed Cited as authority (rule) Jennings v. Oku
D. Haw. · 1988 · confidence medium
The rationale for overturning a conviction because of jury misconduct was set forth by the Ninth Circuit in Gibson v. Clanon, 633 F.2d 851, 853 (9th Cir.1980), wherein it was held that “[w]hen a jury considers facts that have not been introduced in evidence, a defendant has effectively lost the rights of confrontation, cross-examination, and the assistance of counsel with regard to jury consideration of the extraneous evidence.
examined Cited as authority (rule) Salvatore Joseph Marino v. Dan Vasquez, Warden (3×)
9th Cir. · 1987 · confidence medium
In Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir.1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981), the court adopted the Vasquez “reasonable possibility” test as the constitutional standard applicable to the collateral review of state court judgments.
discussed Cited as authority (rule) United States v. Edward Williams, United States of America v. Andrew Blandin, A/K/A \Zigzag\" \"Jigsaw
unknown court · 1986 · confidence medium
See, e.g., United States v. Griffith, 756 F.2d 1244, 1252 (6th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 114 , 88 L.Ed.2d 93 (1985) (defendant must demonstrate actual prejudice before the trial court; review is for abuse of discretion); Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981) (new trial is not required if it can be found beyond a reasonable doubt that the extrinsic material did not contribute to the verdict); United States v. Marx, 485 F.2d 1179, 1184 (10th Cir.1973), cert. denied, 416 U.S. 986 , 94 S.Ct. 2391…
discussed Cited as authority (rule) United States v. Williams
unknown court · 1986 · confidence medium
See, e.g., United States v. Griffith, 756 F.2d 1244, 1252 (6th Cir.), cert. denied, — U.S. -, 106 S.Ct. 114 , 88 L.Ed.2d 93 (1985) (defendant must demonstrate actual prejudice before the trial court; review is for abuse of discretion); Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir. 1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981) (new trial is not required if it can be found beyond a reasonable doubt that the extrinsic material did not contribute to the verdict); United States v. Marx, 485 F.2d 1179, 1184 (10th Cir.1973), cert. denied, 416 U.S. 986 , 94 S.Ct. 2391 ,…
discussed Cited as authority (rule) Fikri Bayramoglu v. W. Estelle
9th Cir. · 1986 · confidence medium
The ultimate question is “ ‘whether it can be concluded beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict.’” United States v. Bagley, 641 F.2d 1235, 1241 (9th Cir.), cert. denied, 454 U.S. 942 , 102 S.Ct. 480 , 70 L.Ed.2d 251 (1981) (quoting Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981)). 7 “[N]ot every incident of juror misconduct or bias requires a new trial.” United States v. Hendrix, 549 F.2d 1225, 1229 (9th Cir.), cert. denied, 434 U.S. 818 , 98 S.Ct. 58 , 54 L.Ed.2d 74…
discussed Cited as authority (rule) State v. Ferreira
Ariz. Ct. App. · 1986 · confidence medium
Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir.1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 [ 68 L.Ed.2d 231 ] (1981), (quoting Turner v. Louisiana, 379 U.S. 466, 472-73 , 85 S.Ct. 546, 549-50 , 13 L.Ed.2d 424 (1965)).
cited Cited as authority (rule) Leonard Lacy v. Joseph Gardino, Superintendent, Northeastern Correctional Center--Concord
1st Cir. · 1986 · confidence medium
Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir.1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981); United States v. Howard, 506 F.2d 865, 866 (5th Cir.1975).
cited Cited as authority (rule) United States v. Walter H. Kupau
9th Cir. · 1986 · confidence medium
United States v. Littlefield, 752 F.2d 1429, 1431-32 (9th Cir.1985); Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980), cert. denied 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981).
discussed Cited as authority (rule) United States v. Roy Griffith (82-1485), Gerald L. McKay (82-1495), Frank Ross Reynolds, III (82-1496)
6th Cir. · 1985 · confidence medium
Still others grant relief if “it can be concluded beyond a reasonable doubt that extrinsic evidence ... contribute^] to the verdict.” Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981).
discussed Cited as authority (rule) United States v. Jean D. Littlefield, United States of America v. George G. Nicoladze, United States of America v. Fred F. Solomon, Jr. (2×)
9th Cir. · 1985 · confidence medium
Pursuant to Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981), the district judge determined that it could be concluded beyond a reasonable doubt that the extrinsic material did not influence the verdict.
examined Cited as authority (rule) State v. Poh (3×) also: Cited "see, e.g."
Wis. · 1984 · confidence medium
Owen v. McMann, 435 F.2d 813, 817 (2d Cir. 1970), cert. denied, 402 U.S. 906 (1971); Farese v. United States, 428 F.2d 178 (5th Cir. 1970). [10] See, e.g., Parker v. Gladden, 385 U.S. 363 (1966); Remmer v. United States, 347 U.S. 227 (1954). [11] There are some errors that involve "constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error." Chapman v. California, 386 U.S. 18, 23 (1967); Payne v. Arkansas, 356 U.S. 560 (1958); Tumey v. Ohio, 273 U.S. 510 (1927). [12] See, e.g., Turner v. Louisiana, 379 U.S. 466, 472-73 , (1965); United States v.…
discussed Cited as authority (rule) State v. Cox
Minn. · 1982 · confidence medium
State v. Crisler, 285 N.W.2d 679 (Minn.1979); see also United States v. Bruscino, 662 F.2d 450, 457-58 (7th Cir. 1981); *559 Gibson v. Clanon, 633 F.2d 851, 853-54 (9th Cir. 1980) (test also phrased as no reasonable possibility that the extrinsic material could have affected the verdict), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981).
examined Cited as authority (rule) United States v. John Bagnariol, United States of America v. Gordon L. Walgren, United States of America v. Patrick Gallagher (4×) also: Cited "see"
9th Cir. · 1981 · confidence medium
United States v. Bagley, 641 F.2d 1235, 1241 (9th Cir. 1981); Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir. 1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981); United States v. Renteria, 625 F.2d 1279, 1284 (5th Cir. 1980); United States v. Bohr, 581 F.2d 1294, 1302 (8th Cir.), cert. denied, 439 U.S. 958 , 99 S.Ct. 361 , 58 L.Ed.2d 351 (1978); United States v. Hockridge, 573 F.2d 752, 756 (2d Cir.), cert. denied, 439 U.S. 821 , 99 S.Ct. 85 , 58 L.Ed.2d 112 (1978); United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.), cert. denied, 434 U.S. 818 , 98 S.Ct. 58 , 54 L.…
examined Cited as authority (rule) United States v. Ronnie Joseph Bruscino and Charles Eugene Kell (4×)
7th Cir. · 1981 · confidence medium
Gibson v. Clanon, 633 F.2d 851, 853 (9th Cir. 1980), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981). 10 A stringent test is needed because jury consideration of facts not introduced in evidence denies a defendant’s Sixth Amendment rights to confrontation, cross-examination and assistance of counsel with respect to the extraneous evidence.
examined Cited as authority (rule) UNITED STATES of America, Plaintiff-Appellee, v. Hughes A. BAGLEY, Defendant-Appellant (3×)
9th Cir. · 1981 · confidence medium
II THE EXTRINSIC EVIDENCE 29 The majority correctly states the standard to be applied in cases where the jury has received information not placed in evidence: a new trial must be granted unless "it can be concluded beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict." Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir. 1980).
cited Cited "see" Thompson v. Woodford
S.D. Cal. · 2007 · signal: see · confidence high
See Gibson, 633 F.2d at 854 .
discussed Cited "see" Luis Valenzuela RODRIGUEZ, Petitioner-Appellant, v. Charles D. MARSHALL, Respondent-Appellee
9th Cir. · 1997 · signal: see · confidence high
See Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980) (“[T]he fact that at least [one juror] believed that it was necessary to obtain more evidence is, by itself, an indication that there may have been a need to resolve some lingering hesitation or uncertainty.”).
discussed Cited "see" Paul Michael THOMPSON, Petitioner-Appellant, v. Robert BORG, Et Al., Respondents-Appellees (2×)
9th Cir. · 1996 · signal: see · confidence high
See Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980) (fact that extraneous information was previously ruled inadmissible is a relevant factor in determining prejudicial effect on jury); see also Hughes, 898 F.2d at 700, 701 (extraneous information is less likely to be prejudicial where material is merely duplicative of evidence properly introduced in open court). 49 Thus, had the majority engaged in the requisite analysis of the nature of the information communicated here to the jury, it would have found not only that the information is highly prejudicial, but that it is considerably more pr…
discussed Cited "see" Steven Ray LAWSON, Petitioner-Appellee, v. Robert G. BORG, Warden, Respondent-Appellant (2×)
9th Cir. · 1995 · signal: see · confidence high
See Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980) (nine hours of deliberation deemed protracted), cert. denied, 450 U.S. 1035 , 101 S.Ct. 1749 , 68 L.Ed.2d 231 (1981); see also Dallago v. United States, 427 F.2d 546, 559 (D.C.Cir.1969) (five days protracted). 30 Furthermore, the extrinsic information directly related to a material issue in the case: intent.
Retrieving the full opinion text from the archive…
Earl B. Gibson
v.
Thomas L. Clanon, Superintendent, Vacaville Medical Facility, Vacaville, California, Lawrence Justice v. George Sumner, Superintendent, Correctional Training Facility, Soledad, California
79-2680.
Court of Appeals for the Ninth Circuit.
Dec 8, 1980.
633 F.2d 851
Published
3 passages pin-cited by 3 cases
Pinpoint authority: #31,329 of 633,719
Citer courts: Ninth Circuit (3) · E.D. California (1)

633 F.2d 851

7 Fed. R. Evid. Serv. 642

Earl B. GIBSON, Appellant,
v.
Thomas L. CLANON, Superintendent, Vacaville Medical
Facility, Vacaville, California, Appellee.
Lawrence JUSTICE, Appellant,
v.
George SUMNER, Superintendent, Correctional Training
Facility, Soledad, California, Appellee.

No. 79-2680.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Sept. 10, 1980.
Decided Dec. 8, 1980.

Marvin Stender, Stender & Stender, San Francisco, Cal., for appellant.

Ronald E. Niver, Deputy Atty. Gen., San Francisco, Cal., for appellee.

Appeal from the United States District Court for the Northern District of California.

Before MERRILL, Circuit Judge, MARKEY,[*] Chief Judge and BOOCHEVER, Circuit Judge.

BOOCHEVER, Circuit Judge:

This is an appeal from a judgment of the District Court for the Northern District of California denying petitioners' writ of habeas corpus. The two petitioners, Gibson and Justice, are presently serving life sentences in California state prisons for the 1973 murder conviction of a prison guard at San Quentin. Gibson and Justice allege that the trial jury that convicted them impermissibly relied upon facts that were not in evidence. In doing so they claim they were denied their constitutional right to a fair trial. The district court, which reviewed the state court record, but did not take additional evidence, concluded that any error that may have occurred was harmless beyond a reasonable doubt. Our review of the historical facts in this case convinces us that there is a reasonable possibility that the jury's consideration of facts not introduced into evidence contributed to the jury's verdict. Accordingly, we reverse the judgment.

On July 21, 1971, Leo Davis, an unarmed guard at the San Quentin prison hospital, was stabbed to death. The state's case linking Gibson and Justice to the crime was based principally upon the testimony of three witnesses and the introduction of certain physical evidence.

The state's chief witness was Herman Johnson who testified that he was an eyewitness to the killing. On July 19, 1971, Johnson claimed he was stabbed in the neck by Gibson and Justice shortly after he had been transferred to San Quentin from Soledad. The attack was allegedly provoked by Johnson's willingness to give a statement implicating other inmates in a crime committed at Soledad. After the attack, Johnson was taken to the prison hospital where he was placed in a room on the second floor. Davis was stationed in the hallway outside his door.

According to Johnson, at around noon on July 21 he caught a glimpse of Gibson through a window in the door to his room and heard scuffling. He testified that upon going to the door he was able to see Gibson and Justice stab Davis while a third man held him.

The defendants impeached Johnson's testimony with the testimony of other inmates who stated that they had witnessed the July 19 attack on Johnson, and Gibson and Justice were not among the attackers. The defense implied that there was a possibility that Johnson's testimony was biased because a decision on a parole violation committed by Johnson was allegedly held in abeyance until after his testimony at the trial. The defense also introduced evidence indicating that Johnson had a poor reputation for veracity.

Johnson's eyewitness account was corroborated by two other prosecution witnesses. Another inmate with the last name of Johnson, Charles Johnson, testified that he had seen Gibson, Justice and a third man in a shower room on the second floor of the hospital within a short time of when the murder occurred.

There was also testimony from Ivan Kranzelic who shared a hospital ward on the fourth floor with Gibson. Gibson had gained admittance to the hospital after allegedly suffering an injury in football practice the day before the murder. Kranzelic testified that on the morning of July 21 he had seen an inmate give a prison-made knife to Gibson, who in turn gave it to Justice. Kranzelic overheard Gibson make various statements such as they would have to do "it" that day. Around noon, Gibson, Justice, and a third inmate left the ward and returned about twenty minutes later. Kranzelic testified that Justice's hand was bleeding when he returned and, as he sat on Gibson's bed, he used a roll of toilet paper to try to stop the bleeding. At the time these events were alleged to occur Kranzelic was recovering from foot surgery and had been given several doses of morphine.

At trial the state introduced evidence showing that the murder victim had blood type "O." Justice had blood type "AB." It was further shown that the blood stains found on the murder weapon, on Gibson's bed where Justice had sat, and on the roll of toilet paper, which was also recovered, all were of blood type "AB."

[*~851]1

The trial lasted from December 1972 until April 1973. The jury deliberated for two and a half days before returning a guilty verdict on April 18, 1973. A month later, on May 17, 1973, Gibson and Justice made a motion for a new trial on the grounds that the jury had impermissibly relied upon evidence not produced in court. Affidavits submitted by the jurors reveal two incidents of misconduct.

2

At one point during the deliberations, Juror Colin Grist went to an encyclopedia to confirm his belief that blood type "AB" was rare. He reported his findings back to other members of the jury. Jurors Chapman, Gauger and Cox remembered some comment by Grist. Grist was unsure whether he made the comment before or after the balloting on Justice.

3

Another juror, Mona Gauger, stated that while the jury was considering Kranzelic's testimony she had commented on the dosage of morphine. Other jurors were unsure what effect the morphine may have had on Kranzelic, which Gauger interpreted as a request for more information. She then consulted a medical encyclopedia from which she apparently concluded that the morphine dosage was too small to have affected Kranzelic's perceptions. At least eight other jurors remembered some comment by Gauger, but there was some disagreement as to exactly what she had said.

4

In both cases there were apparently some comments in the jury room to the effect that the jury should not consider this evidence.

[*~852]5

The trial judge denied the motion for a new trial. In his oral ruling the judge considered the applicable test to be that of People v. Watson, 46 Cal.2d 818, 299 P.2d 243, 254 (Cal.1956), cert. denied 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55 (1957), which, in the courts of California, requires reversal for an error when it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Emphasis added.) The judge specifically declined to apply the stricter test of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), which requires, in the case of federal constitutional errors, that the error be harmless "beyond a reasonable doubt."

6

In his ruling, the judge twice indicated that were he to apply the Chapman standard, he would have granted the motion:

7

I will state for the record that I cannot say that it (the jury misconduct) was harmless beyond a reasonable doubt.

8

... I don't think the Chapman case applies to this situation. If it does and I were to apply it, I would feel, I think, compelled to reach a different result.

9

The trial judge's decision was affirmed by an unpublished opinion of the California Court of Appeal. Petitions for certiorari to the California Supreme Court and the United States Supreme Court were denied. In denying the petitioners' subsequent writ of habeas corpus, the federal district court judge did not specifically decide whether the jury misconduct in this case amounted to constitutional error, but concluded that if there were constitutional error it was harmless beyond a reasonable doubt.

10

We first must decide whether the California trial judge applied the appropriate test in determining the effect of the impermissibly considered evidence. In United States v. Vasquez, 597 F.2d 192 (9th Cir. 1979), we defined the test to be applied when a jury acquires evidence that has not been introduced into the record.

11

(T)he appellant is entitled to a new trial if there existed a reasonable possibility that the extrinsic material could have affected the verdict.

12

597 F.2d at 193 (emphasis added). The "reasonable possibility" test of Vasquez is equivalent in severity to the harmless error rule applicable to constitutional errors under Chapman.[1]

[*~853]13

Vasquez involved a direct appeal from a trial in a federal district court. Therefore, although it is intimated by the opinion, there was no need to decide whether the " reasonable possibility" test is compelled by constitutional considerations that would make it applicable to the collateral review of a state court judgment.[2] We now conclude that the Vasquez test is compelled by constitutional considerations.

14

In Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), the Court refers to sixth amendment rights in considering the impact of outside influence on a jury:

15

In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the "evidence developed" against a defendant shall come from the witness in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel.

379 U.S. at 472-73, 85 S.Ct. at 549-50.[3]

16

Turner involved the possibility of prejudice created where the prosecution's leading witnesses were the same two deputy sheriffs who watched over the jury during the time it was sequestered for Turner's trial. Although the case did not involve the introduction of extra-record facts, the implication of the statement is that it would apply in such a case.[4] A year after Turner, the court reversed a state court decision where a court bailiff made various prejudicial statements about a defendant to jurors. The court noted the applicability of the confrontation clause:

17

(T)he statements of the bailiff to the jurors are controlled by the command of the Sixth Amendment ...

18

Parker v. Gladden, 385 U.S. 363, 364, 87 S.Ct. 468, 470, 17 L.Ed.2d 420 (1966):

[*~854]19

The Second Circuit has granted habeas corpus relief in two cases where extrinsic material may have influenced a state court verdict.[5] Opinions from other circuits have also cited sixth amendment violations when a jury has considered facts outside of those which have been introduced at trial.[6]

20

These decisions have noted that when a jury considers facts that have not been introduced in evidence, a defendant has effectively lost the rights of confrontation, cross-examination, and the assistance of counsel with regard to jury consideration of the extraneous evidence. In one sense the violation may be more serious than where these rights are denied at some other stage of the proceedings because the defendant may have no idea what new evidence has been considered. It is impossible to offer evidence to rebut it, to offer a curative instruction, to discuss its significance in argument to the jury, or to take other tactical steps that might ameliorate its impact.[7] We believe that the California trial judge erred in applying a reasonable probability standard and that the proper standard to be applied is whether it can be concluded beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict.

21

We must next review the record to determine the effect, if any, of the extrinsic evidence considered by the jury in this case.

[*855]22

The state's case against Gibson and Justice is a strong one. Nevertheless, if the jury had readily accepted Johnson's eyewitness testimony it seems unlikely that they would have deliberated for so long to reach a verdict.[8] Furthermore, the fact that at least two jurors believed that it was necessary to obtain more evidence is, by itself, an indication that there may have been a need to resolve some lingering hesitation or uncertainty.

23

The extra-record evidence in this case is of some import in bolstering Johnson's testimony. Evidence that blood type "AB" is rare would logically strengthen the inference that it had been Justice who had possessed the murder weapon and not some unknown assailant with the same type of blood. The trial judge had ruled that evidence concerning the rarity of "AB" blood was inadmissible. The prosecution took an immediate appeal from this ruling, which is some indication of the importance the state attached to this evidence.[9] As to Kranzelic's testimony, if the jury concluded that his perceptions were not affected by morphine this would certainly strengthen his credibility.

24

The trial judge candidly acknowledged that were he to apply the test for constitutional error that we have concluded is required in this case, he would have granted the motion for a new trial. Although we are not bound by this evaluation of the historical facts, see e. g., Brown v. Allen, 344 U.S. 443, 456, 73 S.Ct. 397, 406, 97 L.Ed. 469 (1953); Developments in the Law-Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1113 (1970), we nevertheless believe that under the circumstances the state trial judge's conclusion should be given a great deal of weight. The state judge presided over Gibson and Justice's four-month trial and observed the demeanor of the witnesses. At the time of his ruling he was in a far better position to evaluate the credibility of the witnesses than we are now, reviewing a cold record eight years after the trial.

25

We conclude that there is a reasonable possibility that the extrinsic evidence affected the verdict. Accordingly, the petitioners' writ of habeas corpus must be granted unless the State of California elects to grant a new trial within sixty days.

26

REVERSED.

*

Honorable Howard T. Markey, Chief Judge, U.S. Court of Customs and Patent Appeals, sitting by designation

1

The court noted in Chapman:

There is little, if any difference between ... "whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction" and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."

386 U.S. at 24, 87 S.Ct. at 826 (emphasis added).

2

Such a test might conceivably be based upon the supervisory powers of the court. See Murphy v. Florida 421 U.S. 794, 797-98, 95 S.Ct. 2031, 2034-35, 44 L.Ed.2d 589 (1975)

3

The sixth amendment to the constitution provides in part that an "accused shall enjoy the right ... to be confronted with the witnesses against him ... and to have the Assistance of Counsel for his defense."

4

In several cases the court has reversed state court convictions without a showing that specific extra-record facts reached a jury during its deliberations. The cases have involved situations where there has been such pervasive pre-trial publicity that it could be presumed that the jury's verdict was based on either pre-judgment of the defendant or consideration of extraneous facts. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)

5

Bulger v. McClay, 575 F.2d 407, 411 (2d Cir. 1978), cert. denied 439 U.S. 915, 99 S.Ct. 290, 58 L.Ed.2d 263 (1978); Owen v. McMann, 435 F.2d 813 (2d Cir. 1970), cert. denied 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971). See also Downey v. Peyton, 451 F.2d 236 (4th Cir. 1971)

6

Government of Virgin Islands v. Gereau, 523 F.2d 140, 150 (3rd Cir. 1975) cert. denied 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976) ("consideration by the jury of extra-record facts about the case ... (is) prima facie incompatible with the Sixth Amendment."); United States v. Thomas, 463 F.2d 1061, 1063 (7th Cir. 1972); Farese v. United States, 428 F.2d 178, 179 (5th Cir. 1970)

7

The Fifth Circuit has referred metaphorically to extraneous evidence as "the dagger of hidden evidence." United States v. Howard, 506 F.2d 865, 866 (5th Cir. 1975)

8

The length of jury deliberations has been cited as a factor of some importance in Parker v. Gladden, 385 U.S. 363, 365, 87 S.Ct. 468, 470, 17 L.Ed.2d 420 (1966) (26 hours) and Dallago v. United States, 427 F.2d 546, 559 (D.C.Cir.1969) (5 days). In opposing the petitioner's motion for a new trial the prosecution stated that the jury actually only deliberated for "possibly nine hours." Presumably the prosecution meant that this nine hour period was spread over two and one half days. Even accepting the prosecution's version, however, it does not seem possible that the jury would have deliberated nine hours over several days if the jurors did not have serious questions as to the credibility of the eyewitnesses

9

The fact that a jury has acquired inadmissible evidence has been cited in United States v. Vasquez, 597 F.2d 192, 194 (9th Cir. 1979), and Dallago v. United States, 427 F.2d 546, 558 (D.C.Cir.1969)