                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 06 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MARCUS QUINN BLAIR, Jr.,                         No. 10-15434

              Petitioner - Appellant,            D.C. No. 2:06-cv-00556-LKK-
                                                 DAD
  v.

L. CHRONES, Warden and KELLY                     MEMORANDUM *
MICHELLE CROXTON, Deputy
Attorney General,

              Respondents - Appellees.



                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                    Argued and Submitted September 13, 2011
                            San Francisco, California

Before: THOMAS and N.R. SMITH, Circuit Judges, and OLIVER, Chief District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for Northern Ohio, Cleveland, sitting by designation.
      Marcus Quinn Blair, Jr. appeals the district court’s denial of his 28 U.S.C.

§ 2254 petition challenging his jury conviction for murder. Blair seeks relief

alleging (1) two claims of juror misconduct depriving him of the right to a fair

trial—(A) Juror No. 2’s use of a legal dictionary to define “reasonable” and “heat

of passion” to other jurors and (B) jurors’ sharing of their “expertise” on ballistics

with other jurors—and (2) trial court error in answering a jury question violating

his due process rights. We review de novo the district court’s denial of a state

prisoner’s habeas petition, Parle v. Runnels, 505 F.3d 922, 926 (9th Cir. 2007), and

we affirm.

      When considering prejudice due to juror misconduct or an erroneous jury

instruction, we must determine “whether the . . . error had substantial and injurious

effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507

U.S. 619, 623 (1993) (internal quotation marks and citation omitted). The

Supreme Court explained “that we need not conduct an analysis under AEDPA of

whether the state court’s harmlessness determination on direct review . . . was

contrary to or an unreasonable application of clearly established federal law.”

Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010) (quoting Fry v. Pliler, 551

U.S. 112, 119–20 (2007). “Accordingly, we apply the Brecht test without regard

for the state court’s harmlessness determination.” 629 F.3d at 1012.


                                           2
1.    Juror Misconduct.

      For the purposes of its analysis, the California Court of Appeal assumed the

jurors committed misconduct in both circumstance(s) (A) and (B). However, the

court concluded that the misconduct was harmless. We agree. Assuming that the

juror’s behavior was constitutionally cognizable misconduct, it did not

substantially and injuriously affect or influence the jury’s verdict. See Brecht, 507

U.S. at 623.

      A.       Applying the factors set forth in Sassounian v. Roe, 230 F.3d 1097,

1109 (9th Cir. 2000), the introduction of the dictionary in jury deliberations was

not prejudicial. The record suggests that the jury followed the instruction given by

the court and admonished the offending juror that use of the dictionary was

improper. Thus, the exposure to the extrinsic material was limited. The conduct of

the jurors suggests that they did not consider the prohibited material in defining

any terms. See Brown v. Ornoski, 503 F.3d 1006, 1018 (9th Cir. 2007) (“The trial

court properly instructed the jury to disregard any extraneous comments and to

decide the case based only on the evidence at trial; juries are presumed to follow

the court’s instructions.”). Instead, the jurors asked the court for clarification of

the definition of the terms after the incident. Although the trial court was unaware

of the misconduct at the time, it effectively gave a curative instruction when it


                                            3
directed the jury to the appropriate jury instruction explaining these terms.

Further, the evidence supporting Blair’s conviction was overwhelming. Thus, the

introduction of dictionary definitions did not substantially and injuriously affect or

influence the jury’s verdict.

      B.     Assuming misconduct and again applying the Sassounian factors, the

jurors’ discussion regarding ballistics during jury deliberations was not prejudicial.

Second degree murder requires a conscious disregard for life. People v. Perez, 234

P.3d 557, 562 (Cal. 2010) (“Murder does not require the intent to kill. Implied

malice—a conscious disregard for life—suffices.”). The record shows that Blair

shot a rifle at the victim six times. The record shows the victim was running away

from Blair at the time the shots were fired.

      Blair argues that the bullet’s trajectory was crucial to his self-defense

theory—that an upward straight path would suggest an unaimed shot more

consistent with manslaughter whereas a parallel bullet trajectory, bouncing

upwards would suggest an aimed shot more consistent with murder. Blair argues

that a straight upward wound channel (as the pathologist testified) shows that he

shot the rifle from the hip and thus did not aim the gun at the victim to kill. Blair

then argues that the jurors’ comments about the bullet’s trajectory contradicted that

of the pathologist. However, whether the bullet went straight through or bounced


                                           4
around in the victim’s body (as the jury discussed) is not material to the jury’s

determination that Blair was guilty of murder in the second degree. Blair’s

shooting of the rifle (aimed or unaimed) six times at the victim while he was

running away constitutes substantial evidence for the jury to find that Blair’s

actions demonstrate a conscious disregard for life. Thus, the jurors’ comments

about ballistics did not substantially and injuriously affect or influence the jury’s

verdict.

2.    The trial court’s response to the jury’s question, considered in the context of

the instructions as a whole and the trial record, did not violate Blair’s due process

rights. See Estelle v. McGuire, 502 U.S. 62, 71–72 (1991). The response was a

correct statement of state law. The trial court read the agreed upon jury instruction.

The court’s additional statement did not alter the instruction. Accordingly, Blair’s

due process claim fails, because he has not demonstrated that the alleged error had

a “substantial and injurious effect on the verdict.” Brecht, 507 U.S. at 623.

      AFFIRMED.




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