                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-1995

Claudio v Snyder
Precedential or Non-Precedential:

Docket 94-7591




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"Claudio v Snyder" (1995). 1995 Decisions. Paper 287.
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1
                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No. 94-7591


                        CARMELO CLAUDIO;
                         ENRIQUE MAYMI,
                                        Appellants

                               v.

                     *ROBERT SNYDER, Warden,
                  Delaware Correctional Center;
                     *M. JANE BRADY, Attorney
                General of the State of Delaware

          *(Amended as per the Clerk's 4/17/95 Order)




         On Appeal from the United States District Court
                  for the District of Delaware
              (D.C. Civil Action No. 91-cv--00203)




                                    Argued October 16, 1995

         Before: BECKER, ROTH, Circuit Judges
                  and SHADUR1, District Judge

                (Opinion Filed November 8, 1995)




Stephen M. Latimer, Esq. (Argued)
Loughlin & Latimer
58-60 Main Street
Hackensack, NJ 07602

  1
  Milton I. Shadur, United States District Court Judge for the
     Northern District of Illinois, sitting by designation.


                                                                 2
              Attorney for Appellants

Loren C. Meyers (Argued)
Deputy Attorney General
Delaware Department of Justice
820 N. French Street
Wilmington, DE 19801

              Attorney for Appellees




                       OPINION OF THE COURT




ROTH, Circuit Judge

          Carmelo Claudio and Enrique Maymi appeal the district

court's denial of their consolidated petition for habeas corpus

relief.   Appellants were convicted in Delaware Superior Court of

first degree robbery, four counts of possession of a deadly

weapon during the commission of a felony, two counts of first

degree conspiracy, and one count each of first degree murder and

first degree attempted murder.   Claudio v. State, 585 A.2d 1278,

1279 (Del. Supr. 1991).   Appellants claim that the state trial

court erred by:   (1) substituting an alternate juror for an ill

juror without instructing the jury to discard previous

deliberations and begin anew, (2) failing to issue a curative

instruction despite allegedly inflammatory remarks by the

prosecutor after physical evidence was excluded, and (3)

instructing the jury on accomplice liability in a manner that




                                                                    3
could lead a reasonable juror to believe that petitioners bore

the burden of proof on that issue.

           Jurisdiction in the district court was invoked pursuant

to 28 U.S.C. § 2254(a) after appellants exhausted their state

court remedies.   Claudio v. Redman, Nos. 91-203-LON, 91-209-LON,

slip op. at 2 (D. Del. Aug. 23, 1994) (consolidated petitions of

Claudio and Maymi).   This appeal is properly before us on a

certificate of probable cause issued pursuant to 28 U.S.C. §2253.

           We will affirm the district court's denial of habeas

corpus relief on all three grounds, the second and third

requiring no further discussion.     Because the Delaware trial

court's substitution of an alternate juror after jury

deliberations had already begun presents a question of first

impression in this circuit, we further elaborate our holding on

this issue.

                                 I

           At the conclusion of appellants' state trial, the trial

judge read his instructions to the jury and three alternate

jurors.    Claudio v. State, 585 A.2d at 1283.   The jury began its

deliberations on December 1, 1987, at approximately 10:30 a.m.

and deliberated until approximately 5:00 p.m.     During this first

day of deliberations, the jury requested to view the defendant,

Claudio.   The trial judge agreed, and the twelve jurors and three

alternates were brought back into the courtroom to view Claudio.

The jury failed to reach a verdict during the first day of




                                                                      3
deliberation and was sequestered for the night.    The alternate

jurors were separately sequestered.2     Id.

          During the night, one of the regular jurors became ill.

The next morning, the trial judge excused the ill juror and

replaced that juror with one of the alternates.    The judge asked

the three alternates if they had discussed the case amongst

themselves during their sequestration and inquired whether they

had read anything about the case.    Id. at 1283 n.8.   All three

jurors responded in the negative.    The trial judge then impaneled

the first alternate.   Defense counsel moved for a mistrial, but

that motion was denied.   Id. at 1283.

          After impaneling the new juror, the trial judge gave

special instructions to the reconstituted jury and to the

alternate juror.   The court instructed the original eleven jurors

to "take whatever time is necessary, even though it may be

repetitious and time consuming, to completely update [the

alternate juror] as to the stage of deliberations you as a group

have reached."   Id. at 1284 n.9.   The court then specifically

directed the alternate juror to take as much time as necessary to

familiarize herself with the evidence and with the thinking of

the other jurors and to move forward only when she felt that she




2
 The alternate jurors were not released at the conclusion of
trial because, in the event that the jury returned a guilty
verdict, the defendants were subject to a post-verdict hearing to
determine the issue of capital punishment. Claudio v. State, 585
A.2d at 1283 n.7 (citing Del.C. § 4209(b)).


                                                                     4
was at no relative disadvantage with regard to her understanding

of the case.3

           The reconstituted jury deliberated from approximately

10:01 a.m. to 5:00 p.m. on December 2.    At 11:17 a.m. the jurors

sent out a note asking if the surviving victim had been visited

in the hospital by a Mrs. Guzman.   The note was answered an hour

later.   On December 3 the jury reconvened at approximately 10:00

a.m.   After a break for lunch at noon, the jury reached a verdict

on all charges at approximately 2:00 p.m. on December 3.    Thus

the original jury deliberated for about six and one-half hours,

and the reconstituted jury deliberated for approximately nine and

3
 The Delaware Supreme court quoted the trial judge's
instructions to the replacement juror in part as follows:

           You find yourself [sic] somewhat of a
           disadvantage. Fortunately, however, with
           your diligence and the cooperation of your
           fellow jurors, you will be able to
           familiarize yourself with the deliberations
           concluded thus far, so that you are not at
           any disadvantage with regard to understanding
           all of the evidence and the views of your
           fellow jurors. It is essential and critical
           that you take whatever time is necessary to
           familiarize yourself with the evidence and
           the thinking and views of the jurors.
                     You must guard against the natural
           feelings to rush or hasten in order to keep
           up with the majority or the other 11. I
           instruct you to be conscious, and forthright
           in telling the others if you feel any
           disadvantage with regard to the level of your
           understanding.
                     When and only when you feel
           yourself adequately and reasonably equipped
           to understand what has transpired thus far in
           the deliberations, should you signal to your
           fellow jurors your desire to move forward.

Claudio v. State, 585 A.2d at 1284 n.9.


                                                                     5
one-half hours.   Id. at 1284.   The jury returned the guilty

verdicts noted above.    Appellants were sentenced to life

imprisonment without possibility of parole for first degree

murder, life imprisonment with possibility of parole for

attempted murder, and an additional forty-five years for other

offenses.

            On direct appeal, the Supreme Court of Delaware ruled

that the trial court violated Delaware Superior Court Criminal

Rule 24(c), which permits the replacement of regular jurors by

alternates prior to deliberation only.4   Id. at 1284-85.    It also

concluded that the substitution of the alternate juror violated

the United States and Delaware constitutions.   Id. at 1289, 1301.

The court held, however, that these were harmless errors.       Id. at

1289, 1304.    The district court properly declined to review the

state law issues involving Rule 24(c) and the Delaware

Constitution, Claudio v. Redman, slip op. at 9 (citing Helton v.

Fauver, 930 F.2d 1040, 1044 (3rd Cir. 1991)), and our review is

confined to the federal constitutional challenge.

                                 II

            Appellants claim that the trial court's decision to

substitute an alternate juror after jury deliberations had

already begun violated their right to a trial by jury under the

Sixth and Fourteenth Amendments to the United States

4
 A stipulation by the parties that they would accept the
unanimous verdict of eleven jurors pursuant to Delaware Superior
Court Rule 23(b) would have resolved the situation. The Delaware
Supreme Court noted that the trial court never put this question
to the parties, Claudio v. State, 585 A.2d at 1305 n.73, and the
record indicates that this option was not considered at the time.


                                                                     6
Constitution.   The Supreme Court has summarized the essential

feature of a jury trial:
          "Providing an accused with the right to be
          tried by a jury of his peers gave him an
          inestimable safeguard against the corrupt or
          overzealous prosecutor and against the
          compliant, biased, or eccentric judge." Given
          this purpose, the essential feature of a jury
          obviously lies in the interposition between
          the accused and his accuser of the
          commonsense judgment of a group of laymen,
          and in the community participation and shared
          responsibility that results from that group's
          determination of guilt or innocence.

Williams v. Florida, 399 U.S. 78, 100 (1970) (citing Duncan v.

Louisiana, 399 U.S. 145, 156 (1968)).   Appellants contend that

the introduction of an alternate juror after deliberations had

begun vitiated the essential purpose of the jury by disrupting

the community participation and shared responsibility that the

Supreme Court deemed essential.   Appellants' Brief at 15 (quoting

Williams, 399 U.S. at 100).   The introduction of an alternate

juror after the commencement of deliberations violates the

"sanctity of the deliberative process" in a manner that renders

the trial fundamentally unfair, according to appellants.     Id. at
15, 16 (citing Williams, 399 U.S. at 100); Appellants' Reply

Brief at 5.

          The Supreme Court has not specifically ruled on the

constitutionality of substituting an alternate juror after jury

deliberations have begun.   Most of the federal courts that have

addressed the issue, however, have held that when circumstances

require, substitution of an alternate juror in place of a regular

juror after deliberations have begun does not violate the



                                                                      7
Constitution, so long as the judge instructs the reconstituted

jury to begin its deliberations anew and the defendant is not

prejudiced by the substitution.   See, e.g., United States v.

Guevara, 823 F.2d 446, 448 (11th Cir. 1987); Peek v. Kemp, 784

F.2d 1479, 1484-85 (11th Cir. 1986) (en banc), cert. denied, 479

U.S. 939 (1986); Miller v. Stagner, 757 F.2d 988, 995 (9th Cir.

1985), cert. denied, 475 U.S. 1048 (1986), and cert. denied sub

nom., Freeman v. Stagner, 475 U.S. 1049 (1986); United States v.

Josefik, 753 F.2d 585, 587 (7th Cir. 1985), cert. denied sub

nom., Soteras v. U.S., 471 U.S. 1055 (1985); United States v.

Hillard, 701 F.2d 1052, 1056-57 (2nd Cir. 1983); United States v.

Evans, 635 F.2d 1124, 1128 (4th Cir. 1980).   But see United

States v. Lamb, 529 F.2d 1153, 1156-57 (9th Cir. 1975) (en banc)

(finding impermissible coercion of juror when original jury

required four hours to render verdict but reconstituted jury

required only twenty-nine minutes).

          In both Peek v. Kemp, 784 F.2d at 1484-85, and Miller

v. Stagner, 757 F.2d at 995, federal courts declined to grant

habeas corpus relief to petitioners convicted in state

proceedings by juries including one or more alternates

substituted after jury deliberations had begun.   In Miller, two
jurors were dismissed on the fifth day of jury deliberations and

replaced with alternates over the objections of defense counsel.

Miller, 757 F.2d at 995.   The Ninth Circuit held that the

substitution of the alternate jurors did not violate appellants'

federal constitutional rights because the procedure followed by

the trial court "preserved the 'essential feature' of the jury


                                                                   8
required by the Sixth and Fourteenth Amendments."    Id. (citing

Williams, 399 U.S. at 100).

          Unlike the California penal code at issue in Miller,

however, Delaware's Superior Court Criminal Code permits

replacement of regular jurors by alternate jurors only prior to

deliberations.    Compare Miller, 757 F.2d at 995 n.3 with Claudio

v. State, 585 A.2d at 1284 n.11, 1285.     By substituting an

alternate juror after deliberations had begun, the Delaware trial

court violated Rule 24(c) of the Delaware Criminal Code.    The

relevant question for us, though, is whether the state court

violated the Sixth and Fourteenth Amendments to the federal

constitution, not whether it violated a state rule of criminal

procedure.

             Analogous federal cases make clear that a violation of

the established criminal procedure is not sufficient in itself to

create a constitutional violation.    Several courts have held that

the substitution of an alternate juror after deliberations have

begun in a federal criminal trial violates Rule 24(c) of the

Federal Rules of Criminal Procedure.    But despite the

characterization of Rule 24(c) as "a mandatory requirement that

should be scrupulously followed," federal courts have generally

ruled that the substitution of a juror after deliberations have

begun does not violate the United States Constitution, provided

that defendants suffered no prejudice as a result.    United States

v. Phillips, 664 F.2d 971, 994-95 (5th Cir. Unit B 1981), cert.

denied, 457 U.S. 1136 (1982), and cert. denied, 459 U.S. 906
(1982) (citing cases); see also Guevara, 823 F.2d at 448;


                                                                      9
Josefik, 753 F.2d at 587; Hillard, 701 F.2d at 1056-57.    In

Hillard, for example, a juror became ill after two and one-half

days of deliberations and a three-day holiday recess.     Hillard,

701 F.2d at 1055.     The district court excused the ill juror and

impaneled an alternate juror, and the jury returned several

verdicts over the following two days.    The Second Circuit upheld

these verdicts against a constitutional challenge despite the

violation of Rule 24(c) because the "essential feature" of the

jury was preserved:


          The alternates were chosen along with the
          regular jurors and by the same procedures.
          They heard all the evidence and the
          instructions on the law with the regular
          jurors. Moreover, the alternate chosen to
          replace the ill juror reaffirmed his ability
          to consider the evidence and deliberate
          fairly and fully . . .. The trial judge
          instructed all the jurors to begin their
          deliberations anew . . ..

Id. at 1056-57.    Thus, even though the pertinent rule of criminal

procedure was violated, the court found no constitutional

violation absent evidence that the defendant suffered prejudice

as a result.

          Like the petitioners in Hillard, appellants in this

case cite no prejudice that would elevate a violation of a rule

of criminal procedure to a violation of the United States

Constitution.     The alternates in this case were chosen along with

the regular jurors, and they heard all of the same evidence and

legal instructions simultaneously with the regular jurors.      The

replacement juror reaffirmed that she had not discussed the case



                                                                      10
and that she had not been exposed to media reports.      Whereas the

reconstituted jury in Hillard deliberated for slightly less time

than the original jury before rendering its verdict, the

reconstituted jury in this case continued its deliberations for a

slightly longer time than the originally impaneled jury.

          The fact that the Delaware trial court did not

specifically instruct the jury to begin its deliberations anew is

not dispositive.    The trial court instructed the original jurors

to "take whatever time is necessary" to completely inform the

replacement juror of all previous deliberations and of each

juror's individual point of view.    It also instructed the

replacement juror to guard against the inclination to proceed

before she was thoroughly familiar with the evidence and the

views of the other jurors.     See supra note 2.   Although the trial

judge never specifically directed the jury to "begin anew," we

agree with the district court that the trial court's instructions

were the functional equivalent of such an instruction.      The

instructions were designed to eliminate any disadvantage that the

alternate juror may have felt as a result of her late

introduction into the deliberations and to ensure her full,

effective, and uncoerced participation in all aspects of the

deliberations.     The words "begin anew" carry no talismanic power,

and we would exalt form over substance were we to ignore the

salutary effect of the trial court's instructions in this case.

          Because the trial court's instructions were the

functional equivalent of an instruction to "begin anew," we find

no evidence that the substitution of the alternate juror


                                                                   11
compromised the "essential feature" of a trial by jury.   We will

therefore affirm the district court's denial of appellants'

request for habeas corpus relief.




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