Fields v. Brown , 431 F.3d 1186 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVIE LAMAR FIELDS, 
Petitioner-Appellant,
v. No. 00-99005
JILL BROWN,* Warden, of  D.C. No.
California State Prison at San CV-92-00465-DT
Quentin,
Respondent-Appellee.

STEVIE LAMAR FIELDS, 
Petitioner-Appellee,
No. 00-99006
v.
JILL BROWN,* Warden, of  D.C. No.
CV-92-00465-DT
California State Prison at San
OPINION
Quentin,
Respondent-Appellant.

Appeals from the United States District Court
for the Central District of California
Dickran M. Tevrizian, District Judge, Presiding
Argued and Submitted
June 21, 2005—San Francisco, California
Filed December 8, 2005
*Jill Brown is substituted for her predecessor, Jeanne S. Woodford, as
Warden of California State Prison at San Quentin. See Fed. R. App. P.
43(c)(2).
15961
15962 FIELDS v. BROWN
Before: Alex Kozinski, Pamela Ann Rymer, and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Rymer
FIELDS v. BROWN 15965
COUNSEL
David S. Olson, Kulik, Gottesman, Mouton & Siegel, Sher-
man Oaks, California, for the petitioner-appellant/cross-
appellee.
15966 FIELDS v. BROWN
Bill Lockyer, Attorney General; Robert R. Anderson, Chief
Assistant Attorney General; Pamela C. Hamanaka, Senior
Assistant Attorney General; Kristofer Jorstad, Deputy Attor-
ney General; and Keith H. Borjon, Supervising Deputy Attor-
ney General, Los Angeles, California, for the respondent-
appellee/cross-appellant.
OPINION
RYMER, Circuit Judge:
This case returns to us after remand for an evidentiary hear-
ing to determine whether a juror dishonestly responded to
questions on voir dire and was impartial in light of conversa-
tions that the juror had with his wife during the course of the
trial of Stevie Lamar Fields. Fields v. Woodford, 309 F.3d
1095, 1106 (9th Cir.), amended by 315 F.3d 1062 (9th Cir.
2002). The district court found that the juror did not intention-
ally mislead the trial court on voir dire, and that the juror had
no discussions with his wife during the trial about its subject
matter that affected his ability to be fair and impartial. As
these findings are not clearly erroneous, and largely control
Fields’s claim of ineffective assistance of counsel during the
guilt phase as well, we affirm denial of the writ as to the con-
viction. This requires us now to resolve penalty phase issues
on which we reserved decision. The district court granted a
writ on account of extrinsic material received by the jury, but
we conclude that Fields has failed to show prejudicial consti-
tutional error in this respect or with regard to his counsel’s
performance. Accordingly, we reverse this part of the judg-
ment.
I
The details of Fields’s “one-man crime wave,” which
began fourteen days after he was paroled from prison after
FIELDS v. BROWN 15967
serving a sentence for manslaughter, are described in the
opinion of the California Supreme Court on direct appeal,
People v. Fields, 35 Cal. 3d 329, 336-40, 673 P.2d 680, 683-
86 (1983), and our own prior opinion, 309 F.3d at 1098-1100.
Suffice it to say here that in September 1978 Fields went on
a three-week spree during which he robbed and murdered
Rosemary Cobbs, a 26-year-old student librarian at the Uni-
versity of Southern California; robbed Clarence Gessendaner
at gun point and took his car and money; kidnaped, robbed,
raped, forced the oral copulation of, and assaulted Gwendolyn
Barnett; kidnaped and forced the oral copulation of Cynthia
Smith; and finally, kidnaped, robbed, raped, and forced the
oral copulation of Colleen Coates, an 18-year-old USC stu-
dent. Fields was convicted of the robbery-murder of Cobbs,
with the special circumstance of willful, deliberate, and pre-
meditated murder during the commission of a robbery; the
robbery of Gessendaner; the kidnaping for robbery and forced
oral copulation of Smith; the kidnaping for robbery and rob-
bery of Barnett, as well as her rape, forcible oral copulation,
and assault with a deadly weapon; and the kidnaping, robbery,
forcible oral copulation, and rape of Coates. The jury deter-
mined that Fields was sane. At the penalty phase, the parties
stipulated that all evidence heard in the guilt and sanity phases
would carry forward and that Fields had been convicted in
1976 of the voluntary manslaughter of Albert Allen. The state
introduced evidence that Fields bludgeoned Allen with a dum-
bell weight when Allen made homosexual advances. The
defense presented no further evidence. The jury fixed the pun-
ishment at death under the 1977 death penalty law.
The California Supreme Court affirmed Fields’s conviction
and sentence on December 29, 1983. Fields, 35 Cal. 3d at
336, 673 P.2d at 683. After Fields filed a petition for habeas
corpus in the state supreme court claiming ineffective assis-
tance of his trial counsel, Carl Jones, the court appointed a
referee to take evidence and make findings of fact on whether
Jones was ineffective in failing to conduct an adequate inves-
tigation at the guilt and penalty phases. Fields submitted a
15968 FIELDS v. BROWN
number of declarations with his petition, and one of the
declarants, Alice Christopher, his maternal aunt, testified at
the hearing. He also presented expert testimony by Dr. James
Missett, a psychiatrist, and by two attorneys, Gerald Chaleff
and Leslie Abramson. The referee found that counsel’s guilt
phase investigation was adequate, but that his preparation for
the penalty phase was not. Applying Strickland v. Washing-
ton, 466 U.S. 668, 694 (1984), the California Supreme Court
concluded that the additional evidence adduced at the hearing
did not show a reasonable probability that a more complete
penalty investigation and defense would have resulted in a
different verdict. It therefore denied the petition. In re Fields,
51 Cal. 3d 1063, 800 P.2d 862 (1990).
Fields filed a federal habeas corpus petition on May 25,
1993. The district court stayed proceedings to allow an oppor-
tunity to pursue unexhausted claims in state court. Fields filed
a second petition for collateral review in the California
Supreme Court, which was denied in part on the merits and
in part on the procedural ground of untimeliness. When he
filed a second amended habeas petition in district court on
March 31, 1995, the district court dismissed those claims as
procedurally barred. After we reversed, Fields v. Calderon,
125 F.3d 757, 759 (9th Cir. 1997), cert. denied, 523 U.S.
1132 (1998), the parties filed cross-motions for summary
judgment on all claims. The district court upheld Fields’s con-
viction, but granted the petition as to Fields’s death sentence.
The court ordered the sentence vacated and that Fields be sen-
tenced to life in prison without the possibility of parole unless
a new penalty trial were held within 60 days.
Fields and the state both appealed. We affirmed on all guilt
phase claims except for the claim of juror bias (and the related
claim of ineffective assistance of counsel), on which we
remanded for an evidentiary hearing. The juror, Floyd Hil-
liard, and his wife, Diane Hilliard, testified by way of video-
taped deposition, as did two other jurors. The district court
found that Hilliard was not dishonest during voir dire, that he
FIELDS v. BROWN 15969
was not actually biased, and that application of the implied
bias doctrine in the absence of dishonesty would be a new
rule barred by Teague v. Lane, 489 U.S. 288 (1989). It also
found that the Hilliards had no discussions during trial about
the trial that affected his ability to be fair and impartial.
Fields renews his appeal on these issues.
II
A
When responding on voir dire to a question whether he had
ever been a crime victim or witness, arrested or charged with
a crime, or involved in criminal charges or litigation, Hilliard
stated that his “wife was assaulted and beaten, robbed, two
years ago Christmas” in Los Angeles. The judge noted that
some of the charges involved in the Fields case were rob-
beries and asked whether Hilliard thought “it is going to make
it difficult for you to be a fair, impartial juror in the case now
pending before this court as a result of the experience your
wife went through?” Hilliard replied: “I doubt it. I think I’d
base it strictly on the charges and the evidence that’s pre-
sented.” Counsel asked no questions and Hilliard was empan-
eled without challenge.
As it turns out, Hilliard’s wife had been accosted at gun-
point by a young African-American male in his early twen-
ties, bound, blindfolded, driven to a secluded area, beaten,
raped and robbed. It was a traumatic experience for the Hil-
liards; the person who attacked her threatened to finish her
off, which caused the Hilliards to change the locks on their
house and Hilliard to stand guard with a gun for several
weeks. Her assailant was not apprehended.
Fields argues that Hilliard’s failure to disclose the crimes
of rape and kidnap against his wife and to reveal his misgiv-
ings about serving as a juror, gives rise to McDonough-style
15970 FIELDS v. BROWN
bias1 on the basis of his untruthfulness in voir dire. Further,
he submits that Hilliard was actually biased and that the hear-
ing on remand shows that Hilliard was impliedly or presump-
tively biased as well.
[1] The Sixth Amendment guarantees a criminal defendant
a fair trial, which means, in a case tried to a jury, “a jury capa-
ble and willing to decide the case solely on the evidence
before it.” McDonough, 464 U.S. at 554 (quoting Smith v.
Phillips, 455 U.S. 209, 217 (1982)) (internal quotation marks
omitted). A defendant is denied the right to an impartial jury
if only one juror is biased or prejudiced. Dyer v. Calderon,
151 F.3d 970, 973 (9th Cir. 1998) (en banc).2 To obtain a new
trial on account of a juror’s failure to disclose information
during voir dire, “a party must first demonstrate that a juror
failed to answer honestly a material question on voir dire, and
then further show that a correct response would have provided
a valid basis for a challenge for cause.” McDonough, 464 U.S.
at 556. As we explained in Dyer, it follows from McDonough
that “an honest yet mistaken answer to a voir dire question
rarely amounts to a constitutional violation; even an intention-
ally dishonest answer is not fatal, so long as the falsehood
does not bespeak a lack of impartiality.” Dyer, 151 F.3d at
973 (citing McDonough, 464 U.S. at 555-56). Therefore, our
task is to determine whether Hilliard’s answers were dishon-
est and whether Hilliard’s presence on the jury undermined
the jury’s impartiality. See id. For this purpose we remanded
to the district court for an evidentiary hearing.
Having held the hearing that we ordered, the district court
found that Hilliard did not respond dishonestly. Considering
the entire record, including declarations that Hilliard had
signed in 1993 and 1995, as well as his demeanor on the vid-
1
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554
(1984).
2
In this circuit, “the presence of a biased juror introduces a structural
defect not subject to harmless error analysis.” Id. at 973 n.2.
FIELDS v. BROWN 15971
eotape, the district court found that he did not intend to mis-
lead the trial court when he stated that his wife was “assaulted
and beaten, robbed, two years ago Christmas.” Whether a
juror is dishonest is a question of fact, see Dyer, 151 F.3d at
973, and we are not firmly convinced that these findings are
clearly erroneous, see Riley v. Payne, 352 F.3d 1313, 1317
(9th Cir. 2003).
[2] In testimony credited by the district court, Hilliard
explained that during voir dire he volunteered that his wife
had been assaulted and beaten, intending for people in the
courtroom to understand that she had been sexually abused
without his having to be explicit about the details. He noted
that twenty-five years ago people were not as free and open
in talking about sexual assaults as they are today. He did not
intend to hide the fact that his wife had been sexually
assaulted and if anyone had asked for specifics, Hilliard
would have told them. He was mildly surprised when no one
sought to strike him, and it would have been fine with him if
the judge and attorneys did not want him on the jury. How-
ever, Hilliard was prepared to do his duty and serve if
selected. If asked, Hilliard would also have said with respect
to the charges involving sexual assault that he could be fair
and impartial and that he doubted that the attack on his wife
would have influenced him. He said he “doubt[ed]” he would
have difficulty being fair and impartial only “because you can
never be sure what’s in the back of your mind.” Hilliard stated
that he told the truth when he told the judge that he would
base his decision strictly on the evidence presented. Hilliard,
who like Fields is African-American, did his best to be a fair
juror, giving Fields the benefit of the doubt when others were
against him, and did not think that the nature of his wife’s
case, the fact that no arrest had been made, and that her
attacker (like Fields) was a young African-American male had
any impact on him. He did not confuse Fields with his wife’s
attacker and did not mention the crimes against his wife to
other jurors. To the extent Hilliard may have been mistaken
in assuming that being “assaulted” and “beaten,” in the con-
15972 FIELDS v. BROWN
text of an assault perpetrated on his wife, would be under-
stood as including a sexual assault, it was an honest mistake
for a layperson to make. See Dennis v. Mitchell, 354 F.3d 511,
521(6th Cir. 2003) (holding that juror’s misunderstanding of
a legal term did not denote dishonesty); see also Sanders v.
Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004) (holding that
a juror was not dishonest for failing to disclose that 25 years
previously she had lived in an area with gang activity).
[3] In these circumstances, paraphrasing McDonough, to
invalidate the result of a weeks-long trial in state court
because of a juror’s honest response to a question,
is to insist on something closer to perfection than our
judicial system can be expected to give. A trial rep-
resents an important investment of private and social
resources, and it ill serves the important end of final-
ity to wipe the slate clean simply to recreate the
peremptory challenge process because counsel
lacked an item of information which objectively he
should have obtained from a juror on voir dire exam-
ination.
464 U.S. at 555. Hilliard was not dishonest in voir dire, and
did not fail to give details for any reason that affected his
impartiality. Accordingly, we see no basis upon which to
invalidate Fields’s conviction on account of McDonough-style
bias.
We have analyzed juror bias under two theories, actual bias
and implied bias. Actual bias is “ “ ‘bias in fact”—the exis-
tence of a state of mind that leads to an inference that the per-
son will not act with entire impartiality.’ ” United States v.
Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000) (quoting
United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997)). The
determination of whether a juror is actually biased is a ques-
tion of fact, Dyer, 151 F.3d at 973, and we are satisfied that
Hilliard was not actually biased in light of the district court’s
FIELDS v. BROWN 15973
findings. He put aside what happened to his wife and did not
confuse it with what he had to decide about Fields. He truth-
fully represented that he was impartial. And he did not lie to
conceal bias. The complete record reveals that Hilliard was a
straight-shooter who was in fact a fair and impartial juror.
[4] This leaves Fields’s claim that Hilliard was, neverthe-
less, impliedly or presumptively biased. Fields points out that
the standard for implied bias is objective, and that a juror may
be found biased even though the juror himself believes or
states that he can be impartial. See, e.g., Gonzalez, 214 F.3d
at 1111-12. Our review is de novo because implied bias is a
mixed question of law and fact. Id. at 1112. As our last opin-
ion in this case notes, we have previously held that bias may
be implied in “those extreme situations where the relationship
between a prospective juror and some aspect of the litigation
is such that it is highly unlikely that the average person could
remain impartial in his deliberations under the circum-
stances.” 309 F.3d at 1105 (quoting Tinsley v. Borg, 895 F.2d
520, 527 (1990) (quoting Person v. Miller, 854 F.2d 656, 664
(4th Cir. 1988))) (internal quotation marks omitted); United
States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977) (stating that
bias can be implied from the “potential for substantial emo-
tional involvement, adversely affecting impartiality” inherent
in certain relationships — there, employment by victim bank).
Fields maintains that all the indicia for implied bias are pres-
ent here because Hilliard and his wife went through a personal
experience that is similar to the fact pattern at trial; it is
unlikely that a person in his circumstances (whose wife was
the victim of a recent unsolved crime by a person whom the
defendant resembles and whom the wife suspects could be her
attacker) could be impartial; the incident pertaining to Diane
Hilliard and Hilliard’s subsequent conversations with her dur-
ing trial present the potential for substantial emotional
involvement adversely affecting his impartiality; and Hilliard
was not honest during the voir dire process regarding the
attack on his wife.
15974 FIELDS v. BROWN
Before going there, however, we must first consider the
state’s position that Fields’s claim of implied bias is barred by
the Teague rule against retroactive application by a federal
court of a new rule of constitutional law. In the state’s view,
a reasonable interpretation of precedent when Fields’s convic-
tion was final would not allow a presumption of bias in the
absence of a finding of juror dishonesty. It submits that all but
one case in the universe of implied-bias cases that existed as
of the date Fields’s conviction became final3 involved dishon-
esty. See McDonough, 464 U.S. at 556; United States v.
Eubanks, 591 F.2d 513, 516 (9th Cir. 1979); Tinsley, 895 F.2d
at 527. The one case that did not turn on dishonesty, Allsup,
566 F.2d at 71, involved two jurors who were related by
employment to the defendant which falls squarely within
long-accepted standards for disqualification.
Fields counters that Hilliard’s bias may be implied on
account of more than just the similarity of the crimes against
his wife. For example, extraneous matters such as the conver-
sations that Hilliard had with his wife during trial clearly are
not Teague-barred because extrinsic information has long
since implicated the constitutional right to a fair trial. See,
e.g., Remmer v. United States, 347 U.S. 227, 229 (1954). He
also argues that implied bias based on deficient responses to
voir dire questions had been firmly established since no later
than McDonough, which came down ten years before the Cal-
ifornia Supreme Court denied his juror bias claim. In addition,
Fields points out that the concurring opinions in McDonough,
and our opinion in Allsup, had embraced a standard for
implied bias that does not depend solely on dishonesty. See
464 U.S. at 556-57 (Blackmun, Stevens and O’Connor, JJ.,
concurring); id. at 558 (Brennan and Marshall, JJ., concurring
3
This date, for Teague purposes, is October 9, 1984, the date the U.S.
Supreme Court denied certiorari on Fields’s direct appeal. See Fields v.
California, 469 U.S. 892 (1984); see also Snook v. Wood, 89 F.3d 605,
612 (9th Cir. 1996) (explaining when a conviction becomes final for
Teague purposes).
FIELDS v. BROWN 15975
in the judgment);4 Allsup, 566 F.2d at 71-72 (finding implied
bias even though juror disclosed she worked at a branch of the
bank that was robbed).
Teague requires us to survey the legal landscape as of the
time the petitioner’s conviction became final to see whether
the rule that he advocates was dictated or compelled by exist-
4
Justice Blackmun’s concurrence for Justice Stevens and Justice
O’Connor agrees with the Court that
the proper inquiry in this case is whether the plaintiffs had the
benefit of an impartial trier of fact. I also agree that, in most
cases, the honesty or dishonesty of a juror’s response is the best
initial indicator of whether the juror in fact was impartial. I there-
fore join the Court’s opinion, but I write separately to state that
I understand the Court’s holding not to foreclose the normal ave-
nue of relief available to a party who is asserting that he did not
have the benefit of an impartial jury. Thus, regardless of whether
a juror’s answer is honest or dishonest, it remains within a trial
court’s option, in determining whether a jury was biased, to order
a post-trial hearing at which the movant has the opportunity to
demonstrate actual bias or, in exceptional circumstances, that the
facts are such that bias is to be inferred.
464 U.S. at 556-57 (Blackmun, J., concurring). Justice Blackmun cited to
Justice O’Connor’s concurring opinion in Smith v. Phillips, 455 U.S. 209
(1982), where she suggested that bias may be presumed when, for exam-
ple, there is “a revelation . . . that the juror is a close relative of one of
the participants in the trial or the criminal transaction, or that the juror was
a witness or somehow involved in the criminal transaction.” Id. at 222
(O’Connor, J., concurring).
Justice Brennan’s concurrence, in which Justice Marshall joined, agreed
with the Court that less-than-complete information during voir dire does
not by itself require a new trial, and would hold that “to be awarded a new
trial, a litigant should be required to demonstrate that the juror incorrectly
responded to a material question on voir dire, and that, under the facts and
circumstances surrounding the particular case, the juror was biased against
the moving litigant.” McDonough, 464 U.S. at 557-58 (Brennan, J., con-
curring in the judgment). He would also have recognized that bias may be
actual or implied (conclusively presumed as a matter of law), and accord-
ingly, disagreed with the Court “that a new trial is not warranted whenever
a prospective juror provides an honest answer to the question posed.” Id.
at 558-59.
15976 FIELDS v. BROWN
ing precedent. Leavitt v. Arave, 383 F.3d 809, 816 (9th Cir.
2004) (per curiam). We agree with Fields that the implied bias
doctrine existed before 1984; we so held in Dyer. 151 F.3d at
984-85. But this does not answer the more discrete issue
raised by the state: whether the implied bias doctrine as it
existed when Fields’s conviction became final would have
required a new trial in the absence of dishonesty during voir
dire.
On the one hand, the Supreme Court has never held that a
juror was impliedly biased in the absence of juror dishonesty.
In Dennis v. United States, 339 U.S. 162 (1950), the court
considered the problem, but refused to find that government
employees were impliedly biased and thus automatically dis-
qualified from serving on a jury where the government is a
party. Id. at 172. Moreover, Justice O’Connor has expressed
the view that implied bias should only be presumed in “ex-
treme” or “extraordinary” cases. See Phillips, 455 U.S. at
222-23 & n.* (O’Connor, J., concurring); see also Tinsley,
895 F.3d at 527 (quoting same). Examples she gave were of
“a revelation that the juror is an actual employee of the prose-
cuting agency, that the juror is a close relative of one of the
participants in the trial or the criminal transaction, or that the
juror was a witness or somehow involved in the criminal
transaction.” Phillips, 455 U.S. at 222 (O’Connor, J., concur-
ring). McDonough, of course, held that a party must demon-
strate that a juror failed honestly to answer a voir dire
question that is material to impartiality before a trial result
could be invalidated. However, the concurring opinions indi-
cated that they did not understand the opinion to foreclose
implied bias in the absence of juror dishonesty on voir dire.
In light of these cases we have previously observed that it is
an unresolved question whether dishonesty is a necessary
predicate to a finding of juror bias. See Dyer, 151 F.3d at 979
n.12 (noting it was unnecessary to decide the issue because
the juror there had lied during voir dire); see also Fields, 309
F.3d at 1105 (“Beyond what these cases indicate, it is an open
FIELDS v. BROWN 15977
question whether dishonesty is required before bias may be
found.”).
On the other hand, we decided in Allsup that bias could be
implied in the absence of juror dishonesty. There, two pro-
spective jurors were employed by a different branch of the
same bank that the defendant was accused of robbing. We
held, on direct appeal, that the defendant’s motion to excuse
the jurors for cause should have been granted because the bias
of those who work for the bank should be presumed. The
jurors had honestly disclosed their employment and stated that
they could try the case fairly, but we nevertheless presumed
bias on account of their employment relationship with the
robbed bank and their “reasonable apprehension of violence”
from bank robbers. 566 F.2d at 71-72. Given Allsup, it is dif-
ficult to conclude that it would have been a new rule of con-
stitutional law in 1984 to presume bias despite an honest
disclosure of a potentially disqualifying relationship in voir
dire.
The state also argues for the narrower proposition that no
precedent at the time dictated that an honest juror is impliedly
biased simply by virtue of his wife’s victim status. While we
agree that this is so, we do not require the existence of a case
for Teague purposes “involving identical facts, circumstances,
and legal issues.” Keating v. Hood, 191 F.3d 1053, 1061 n.11
(9th Cir. 1999), abrogated on other grounds by Mancuso v.
Olivarez, 292 F.3d 939 (9th Cir. 2002).
Teague aside, it is well accepted that bias may be presumed
only in “extreme” or “extraordinary” cases. As we empha-
sized in Tinsley, “[p]rudence dictates that courts answering
this question should hesitate before formulating categories of
relationships which bar jurors from serving in certain types of
trials.” 895 F.2d at 527. And, as we also explained, “[i]nstead
of formal categorization, the Supreme Court has emphasized
the existence of safeguards against actual bias.” Id. at 527-28.
15978 FIELDS v. BROWN
“In most situations, voir dire, ‘the method we have relied
on since the beginning,’ should suffice to identify juror bias.”
Id. at 528 (quoting Patton v. Yount, 467 U.S. 1025, 1038
(1984)). This is because truthful disclosure of information
during voir dire sets up a challenge for cause (or in less clear-
cut cases, a peremptory challenge) that can be exercised
before resources are devoted to trying the case to verdict.
Cause challenges lie for implied (or presumed) bias as well as
for actual bias. See Gonzalez, 214 F.3d at 1111. Honesty is
the heart of the jury-selection process in an adversarial sys-
tem; indeed, “voir dire” means “to speak the truth.” The
whole point of the voir dire process is to elicit information
from the venire that may shed light on bias, prejudice, interest
in the outcome, competence, and the like so that counsel and
the parties may exercise their judgment about whom to seat
and whom to challenge.5 Accordingly, when the issue of bias
arises after trial (as it did in McDonough and Tinsley) or, as
here, on collateral review of a conviction in state court, dis-
honesty in voir dire is a critical factor. As McDonough indi-
cates, “it ill serves the important end of finality” to wipe the
slate clean when the potentially disqualifying relationship is
disclosed on voir dire examination. 464 U.S. at 555.
Hilliard honestly disclosed that his wife had been a victim
of crimes that were quite similar to some of the crimes of
which Fields was accused. Although we found implied bias in
Eubanks based on similarities between the juror’s experiences
and the events giving rise to the trial, the juror had not been
5
As the Supreme Court elaborated in McDonough, voir dire serves to
protect the right to an impartial trier of fact — “ ‘a jury capable and will-
ing to decide the case solely on the evidence before it,’ ” — “by exposing
possible biases, both known and unknown, on the part of potential jurors.
Demonstrated bias in the responses to questions on voir dire may result
in a juror’s being excused for cause; hints of bias not sufficient to warrant
challenge for cause may assist parties in exercising their peremptory chal-
lenges. The necessity of truthful answers by prospective jurors if this pro-
cess is to serve its purpose is obvious.” 464 U.S. at 554 (quoting Phillips,
455 U.S. at 217).
FIELDS v. BROWN 15979
forthcoming in voir dire about his sons’ involvement with
heroin. Cf. Green v. White, 232 F.3d 671, 676-78 (9th Cir.
2000) (presuming bias biased on pattern of lies); Dyer, 151
F.3d at 983 (presuming bias from juror’s lies); Gonzalez, 241
F.3d at 1114 (holding that cause challenge should have been
granted when juror equivocated on voir dire about ability to
set aside emotional experience). The implied bias that we
found in Allsup was based on the jurors’ direct relationship
with a victim and their own vulnerability to the same type of
conduct for which the accused bank robbers were on trial.
Hilliard had no personal connection of this sort. He was not
related to a participant, victim, or witness. The similarity of
experiences was on account of his wife’s experience, not his
own. Although we have recognized that bias may be implied
where close relatives of a juror “have been personally
involved in a situation involving a similar fact person,” Tins-
ley, 895 F.2d at 528, we have never actually presumed bias
from any such relationship when the juror was forthcoming
on voir dire.
[5] We need not reach whether dishonesty is required for
an implied bias claim because we can see no basis for imply-
ing bias as a matter of law solely because Hilliard was the
spouse of a rape victim. As a practical matter, many prospec-
tive jurors have a close family member or friend with similar
experiences. It is the role of voir dire to ferret out such rela-
tionships, and to develop the extent to which the juror’s abil-
ity to be impartial in the particular case is actually, or
presumptively, affected. For those revelations that occur dur-
ing voir dire, the remedy is a cause challenge; for those that
occur after trial, the remedy is a post-trial hearing. Here, that
hearing showed no actual effect on Hilliard’s ability to be fair
and impartial. Being the spouse of a rape victim is not, in and
of itself, such an “extreme” or “extraordinary” situation that
it should automatically disqualify one from serving on a jury
in a case that involves rape.6 It cannot be said that everyone
6
See United States v. Powell, 226 F.3d 1181, 1189 (10th Cir. 2002)
(holding that juror whose daughter had been raped was not impliedly
15980 FIELDS v. BROWN
in Hilliard’s position would necessarily be prejudiced whether
he acknowledged it or not. Rather, the effect of the spouse’s
experience on the juror’s impartiality depends on purely per-
sonal considerations that can vary from case to case, includ-
ing, for example, the similarity of the spouse’s experience to
the facts of the case, the nature of the experience, its contem-
poraneous and continuing impact, how the individual handles
it, and so forth. Given Hilliard’s honest voir dire that revealed
a potentially disqualifying relationship, but not an extreme or
extraordinary one, and the results of the evidentiary hearing
which disclosed no actual bias, we see no basis for inferring
bias now as a matter of law.
B
Our conclusion that Hilliard was an impartial juror remains
the same whether conversations with his wife during trial are
considered together with his voir dire responses, or separately
from them.
As shown by the evidentiary hearing on remand, when
Diane Hilliard asked her husband about the case, he told her
he was not at liberty to discuss it. She knew only that her hus-
biased in trial concerning kidnaping for sexual gratification and assault);
cf. Gonzales v. Thomas, 99 F.3d 978, 989-90 (10th Cir. 1996) (declining
to hold that a rape victim can never be an impartial juror in a rape trial as
it would “insult not only all rape victims but also our entire jury system,
which is built upon the assumption that jurors will honestly try ‘to live up
to the sanctity of [their] oath.’ ”) (quoting Dennis v. United States, 339
U.S. 162, 171 (1950)). See also Jones v. Cooper, 311 F.3d 306, 312-13
(4th Cir. 2002) (refusing to presume bias from the fact that juror’s rela-
tives had been arrested and tried); Torres v. United States, 128 F.3d 38,
46 (2d Cir. 1997) (declining to hold that bias must be implied where juror
has engaged in conduct similar to that of the defendant at trial). But see
Hunley v. Godinez, 975 F.2d 316, 320 (7th Cir. 1992) (holding that bur-
glary of sequestered jurors that occurred during their deliberations con-
cerning a similar burglary charge was an extreme situation justifying
presumption of bias).
FIELDS v. BROWN 15981
band was a juror on a case involving a young, African-
American male who had abducted and shot someone. She did
not know if Fields’s case involved rape charges. From what
she knew Mrs. Hilliard thought it was a possibility that Fields
might be the man who assaulted her; she told her husband
this, and said that she would like to go to court to see if he
were. Hilliard thought his wife was a little paranoid, told her
he doubted Fields was the man who attacked her (Hilliard tes-
tified that it never crossed his mind that Fields was the person
who assaulted his wife), and refused to let her come to the
trial because he did not want her to compromise the trial or
him as a juror, and did not want her to go through any psycho-
logical problems or trauma as a result of seeing the trial. The
district court found that Hilliard never confused the crimes
against his wife with those that Fields committed, and he
obeyed the trial judge’s instruction not to discuss the case
until it was over. Further, Hilliard truthfully told the judge he
would decide the case on the evidence and the law given at
trial, and nothing else, and “absolutely” did so. Finally, the
district court found that the discussions did not delve deeply,
if at all, into the facts of Fields’s case and that Hilliard’s dis-
cussions with his wife did not affect his ability to be fair and
impartial. Accordingly, it concluded that Fields’s claim under
Remmer v. United States, lacked merit. See Remmer, 347 U.S.
229.
We agree. Fields argues that the fact that Hilliard knew his
wife seriously entertained the notion that Fields might have
been her assailant (regardless of his own views of the matter)
made it impossible for him to exercise independent judgment.
Thus, in his view, the conversations gave rise to a presump-
tion of prejudice that was not rebutted. Fields also urges that
Hilliard evinced an “excess of zeal” to stay on the jury,
thereby manifesting a lack of impartiality. However, these
arguments fail in light of the district court’s findings, which
are supported in the record. The court found Hilliard credible,
which means that he did not discuss the Fields trial beyond
saying what kind of case it was, he did not buy his wife’s
15982 FIELDS v. BROWN
speculation about Fields’s being her assailant, he did not con-
fuse the Fields case with the crimes against his wife, and
nothing discussed with his wife affected his ability to be fair
and impartial.
It is Hilliard’s impartiality that matters, not his wife’s. We
agree with the district court’s conclusion that to the extent the
Hilliards had discussions relating to the case, they were harm-
less, as the conversations did not affect Mr. Hilliard’s ability
to be fair and impartial.
III
In a related claim, Fields maintains that his counsel was
ineffective in failing to question Hilliard during voir dire
about the attack on his wife or about his ability to serve
impartially. To prevail under Strickland v. Washington, 466
U.S. 668 (1984), Fields must show that his “counsel’s perfor-
mance was deficient” and “that the deficient performance
prejudiced the defense.” Id. at 687. As we observed in our
prior opinion, “it is tough to imagine why [Jones] did not pur-
sue what kind of assault Hilliard’s wife suffered, given that
the non-capital charges against Fields included rape.” Fields,
309 F.3d at 1108. The state hypothesizes tactical reasons why
Jones would have wanted Hilliard on the jury, but whether
counsel had a strategic reason or not is immaterial, for Fields
was not prejudiced. Strickland, 466 U.S. at 697 (observing
that a court may determine prejudice without first deciding
deficiency). Prejudice exists if “there is a reasonable probabil-
ity that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. Here
there is no such reasonable probability, because Hilliard was
not biased. The impartiality of the jury was not undermined
by his being seated as a juror. Replacement of an unbiased
juror with another unbiased juror should not alter the out-
come.
[6] As we have previously addressed all other claims hav-
ing to do with the guilt phase, and we now resolve the juror
FIELDS v. BROWN 15983
bias issues in favor of the state, we affirm the judgment
entered on Fields’s conviction.
IV
Fields contends that his counsel also rendered ineffective
assistance at the penalty phase in two respects: first, because
he failed to investigate, obtain, and present mitigating evi-
dence, especially about Fields’s background that was marked
by domestic violence, abuse, and poverty; and second,
because he failed to investigate and present potential psychiat-
ric evidence based on the adverse conditions of Fields’s child-
hood and possible organic brain impairment. On account of
this failure, Fields submits that the court-appointed psychia-
trists did not have a complete picture of his emotional and
mental deficits when evaluating him.
A
The facts are fully set out in the California Supreme
Court’s opinion on Fields’s habeas petition, In re Fields, 51
Cal. 3d at 1071-74, 1076, 800 P.2d at 866-70, but in sum-
mary:
Carl Jones was appointed to represent Fields. Although
Jones was an experienced criminal defense attorney, this was
his first capital case. Prior to trial, the court appointed two
psychiatrists, Drs. Franklin Drucker and Ronald Markman, to
examine Fields. Drucker was unable to complete his examina-
tion as Fields refused to be interviewed; Markman submitted
an expert report in which he opined that Fields had an “antiso-
cial personality,” was unable to conform his conduct to legal
requirements, and was therefore legally insane. Fields’s coun-
sel also obtained the psychiatric evaluation prepared by Dr.
Tommy Bolger for the California Adult Authority at the time
Fields was convicted of manslaughter.
15984 FIELDS v. BROWN
After counsel added a plea of not guilty by reason of insan-
ity, the court appointed two additional psychiatrists to evalu-
ate Fields. Drs. Donald Trockman and Saul Faerstein agreed
with Dr. Markman’s diagnosis of antisocial personality disor-
der, but concluded that Fields was not insane because he was
capable of conforming his behavior to legal requirements. At
the sanity phase, Markman opined that Fields suffered from
antisocial personality disorder and that he lacked substantial
capacity either to appreciate the criminality of his conduct or
to conform his conduct to the requirements of law. This met
the definition of insanity under the American Law Institute
test then in use in California. However, Markman testified on
cross-examination that if “mental disease or defect” under a
subsection of the ALI test does not include an abnormality
manifested only by repeated antisocial conduct, Fields would
not be insane. Faerstein and Trockman both said that Fields
had an antisocial personality disorder but was capable of con-
forming to legal requirements. The jury found that Fields was
sane.7
The penalty phase began a few days later. The parties stipu-
lated that Fields was previously convicted of the voluntary
manslaughter of Albert Allen. The prosecutor’s opening state-
ment consisted of four sentences advising the jury about
Fields’s prior manslaughter conviction and of his release from
prison 15 days before the Cobb murder; Fields’s counsel
made no opening statement. The prosecution called one wit-
ness, Joseph Freia, who was the investigating officer in the
Allen manslaughter case. Freia testified that Fields admitted
to killing Allen by striking him in the head with a dumbbell
weight numerous times after Allen made a homosexual
advance. Freia also identified a photograph of Allen’s body
taken shortly after the killing as well as a dumbbell that he
7
The California Supreme Court approved the trial judge’s instruction
that mental disease or defect does not include antisocial conduct, and
upheld the jury’s finding on appeal. Fields, 35 Cal. 3d at 368-72, 673 P.2d
at 705-08.
FIELDS v. BROWN 15985
testified was similar in size and shape to the one Fields used
on Allen. The defense put on no witnesses.
The prosecutor gave a brief closing argument that reviewed
the evidence on aggravating factors, and maintained that the
jury should not accept a defense plea for mercy as no other
circumstances extenuated the gravity of Fields’s ruthlessly
smashing Barnett’s head, putting Smith through a night of ter-
ror, driving Coates to jump out of a second-story window to
escape his wrath, bashing Albert Allen’s head, and taking
Cobb’s life while she was crying out for God. Jones’s closing
argument focused on the theme that Fields had no supportive
family or friends. He argued that there was lingering doubt
about the Cobb murder; that Fields was a young man who
used PCP when he was released from prison and was under
its influence; that Dr. Markman was of the opinion Fields was
insane and suffering from a psychiatric disorder; that Fields
was a man who the testimony of various doctors indicated had
never known his father, that his mother was never there, and
that his sister struck a deal to testify against him; and that
revenge, which is what the prosecutor wants, can be had by
life without the possibility of parole instead of by killing
Fields. The jury returned a verdict of death.
The California Supreme Court affirmed on direct appeal
and after the United States Supreme Court denied Fields’s
petition for certiorari, he filed a petition for habeas corpus
with the California Supreme Court raising both ineffective
assistance claims. The petition appended declarations by sev-
eral family members and friends of the family indicating that
Fields’s father was an alcoholic who beat him when he was
a child; that Fields had a terrible skin rash when he was
young; that Fields’s mother paid no attention to him; that
Fields was always picked on as a child until he started fight-
ing for himself; and that Fields was molested by an uncle
when he and his brother were staying with the uncle in Texas.
The California Supreme Court appointed the Honorable
George Dell, retired judge of the Los Angeles Superior Court,
15986 FIELDS v. BROWN
as referee to take evidence and make findings of fact on the
question: “Was defendant’s conviction or death sentence
unconstitutionally obtained in that defendant was deprived of
his right to effective assistance of counsel by counsel’s failure
to conduct an investigation adequate to permit the selection,
preparation and presentation of evidence at the guilt and pen-
alty trials?” In re Fields, 51 Cal. 3d at 1068, 800 P.2d at 864.
At the hearing (held in June 1987), Dr. James Missett, a
psychiatrist, testified that Fields’s medical records, psychiatric
evaluations, statements by significant persons in his life, and
school records warranted further investigation and provided a
factual basis for a “monumentally different” image of Fields
from that presented by the prosecution. He noted that inter-
views of family members suggested the possibility that Fields
had experienced a seizure at the age of nine when he lost con-
sciousness after his father, who had been known to beat him
in the past, struck him in the head. Missett also believed that
blood loss and head trauma from a stabbing incident may
have aggravated a pre-existing brain disorder. According to
Missett, establishing organic brain impairment would signifi-
cantly mitigate the special circumstance of robbery-murder
and explain why Fields acted in a manner that appeared to be
cold, callous, and calculating.
In rebuttal, Dr. Faerstein testified that it remained his opin-
ion that Fields had no significant organic brain disorder even
after reviewing the Markman, Missett, and Trockman reports;
Dr. Missett’s oral testimony; Fields’s school records; and a
Buffalo social worker’s family assessment report.
Fields’s aunt, Alice Christopher, testified at the hearing.
She lived with the Fields family for six months in Buffalo,
New York, when Fields was two, and in the neighborhood
until he moved to California in 1973 at the age of 15. She said
that the Fields family was characterized by verbal abuse,
domestic violence, emotional neglect and intoxication. Chris-
topher testified that Fields suffered from a severe body rash
FIELDS v. BROWN 15987
that caused him to bleed and cry out in pain from the ages of
two to six; that he was a slow learner who was subjected to
ridicule; and that he was a sensitive child who loved and pro-
tected his mother but had a difficult childhood. At age nine he
began to steal to please his mother, and both parents accepted
the proceeds. Christopher also indicated that Fields had psy-
chological treatment around the age of twelve, and had been
in a boy’s home for stealing.
Gerald Chaleff, a criminal law specialist, expressed the
opinion that Jones had failed adequately to investigate
Fields’s personal and psychological history. Leslie Abramson,
also experienced in the defense of capital cases, likewise
described the kind of investigation that she believed should
have been undertaken, but was not. In her view, this would
have included interviewing Fields’s family and friends in Buf-
falo; investigating his psychiatric history in Buffalo, prior
juvenile convictions, drug use, and possible organic brain
damage which would have described Fields more sympatheti-
cally than “antisocial personality”; contacting a social worker
about the negative effect that Fields’s parents had on him;
developing the theme that Fields’s parents exploited and
physically abused him; investigating positive aspects of
Fields’s personality as a small child, and the rash; obtaining
his school records to show sluggish development; and investi-
gating Fields’s sexual victimization by a male relative.
Jones testified that he had interviewed Fields’s mother and
some family members in Los Angeles. The interviews related
primarily to issues of guilt. He decided not to call Fields’s
mother or sister in the penalty phase because both had
accepted money or property from Fields that they knew he
had stolen, and his mother had shown up at his preliminary
hearing wearing a blouse belonging to one of the victims.
Other members of Fields’s immediate family were also impli-
cated in his criminal activities. Jones considered calling
Fields’s father, but Fields told him that they had had no con-
tact since early childhood. Although in hindsight he would
15988 FIELDS v. BROWN
have gone to Buffalo and interviewed family and friends who
knew Fields as a child, Jones testified that he would neverthe-
less not have used information thereby adduced for the habeas
petition, or called the declarants at trial, because it would have
been ineffective and would have defeated the point he was
trying to make — that Fields didn’t have anybody to guide or
support him — which he believed was the best argument
available.
The referee found that counsel’s investigation into Fields’s
mental health, while not as extensive as it might have been,
was adequate to meet minimum standards because the psychi-
atric experts were in agreement that Fields suffered from an
antisocial personality. The California Supreme Court agreed
that counsel’s actions in this respect constituted a reasonable
and consistent trial strategy. However, the referee found that
Fields did establish that the procedures used to investigate
penalty phase evidence in mitigation fell below minimum
standards. This latter finding was based on Jones’s failure to
interview relatives who were not involved in Fields’s criminal
activities, to conduct any investigation in Buffalo, and to put
on any witnesses during the penalty phase. The referee made
findings only on the deficiency prong, not on the prejudice
prong, although evidence was received on this point at the
hearing. Based on that evidence, which was substantially
undisputed, the California Supreme Court concluded that it
was not necessary to determine whether Jones’s failure to
investigate further was a reasonable tactical choice, because
Fields failed to prove prejudice under the Strickland standard.
The state supreme court found that Fields was not preju-
diced for three basic reasons. First, this was one of the most
aggravated murder-with-special- circumstance cases to come
before the court. In re Fields, 51 Cal. 3d at 1079, 800 P.2d at
872. Fields had already been convicted of one killing before
he embarked on his “one-man crime wave” immediately after
being released from prison. He kidnaped the murder victim
and took her to his house where witnesses saw her, naked and
FIELDS v. BROWN 15989
bound, in Fields’s bedroom. He forced her to write a check
for the balance in her checkbook then shot and killed her. He
stole a car at gunpoint, kidnaped two prostitutes, raped both
of them and severely beat one of them, breaking her jaw with
the handle of a gun in the process. Fields then kidnaped
another woman, stole her car, took her to his house, raped her,
and tried to get money from her checking account. Thus, the
evidence showed a pattern of criminal behavior that included
a murder and at least three kidnapings, rapes, and robberies
within a three-week period of time. Second, Fields’s proof at
the reference hearing was limited to Christopher’s testimony
and experts who relied on out-of-court declarations that were
untested by cross-examination and were of questionable truth-
fulness. The declarations themselves were not offered into
evidence. Hence, the showing of what the penalty phase
would have been like with adequate investigation was not
strong enough to overcome the aggravating evidence. And
third, evidence of Fields’s history, background and mental
condition came in at the sanity phase and so the jury already
knew much of the information that would normally not be
introduced until the penalty phase. As it was, the evidence
showed a mentally disturbed person who used drugs, lacked
parental support and guidance, and whose mother and sister
were both implicated in his crimes. The additional evidence
would have shored up this picture, but in light of the evidence
that was actually before the jury, the state supreme court rea-
sonably did not find that the additional evidence that might
have been discovered would have altered the outcome.
The district court presumed the state supreme court’s find-
ings of fact after the evidentiary hearing to be correct pursuant
to 28 U.S.C. § 2254(d) (1966).8 It noted that the aggravating
8
Another series of declarations were filed after the reference hearing.
The declarations were made between April 1993 and January 1994; they
were appended to Fields’s second (exhaustion) petition filed in the Cali-
fornia Supreme Court. They provide substantially the same information as
the declarations submitted in connection with Fields’s original habeas
15990 FIELDS v. BROWN
evidence was extensive and powerful, whereas the mitigating
evidence presented by Fields at the state evidentiary hearing
was not particularly compelling in light of the aggravating
evidence. The district court agreed with the California
Supreme Court’s holding and itself found no reasonable prob-
ability that the jury would have concluded that the balance of
the aggravating and mitigating evidence did not warrant the
death penalty if Jones had presented the evidence that Fields
contends should have been presented. It also agreed with the
supreme court that Jones’s representation was not constitu-
tionally infirm because he made reasonable strategic decisions
about mental health evidence in light of the law at the time;
the district court additionally held that Fields failed to estab-
lish prejudice because even if an expert could have been
found to testify that Fields suffered from organic brain dam-
age, the evidence presented at the hearing was not persuasive
and would have been rebutted by the three experts who actu-
ally testified.
B
Fields faults both the California Supreme Court and the dis-
trict court for “dodging” the issue of counsel’s deficient per-
formance, but both quite properly determined the issue of
prejudice first. As Strickland instructs, “a court need not
determine whether counsel’s performance was deficient
before examining the . . . result of the alleged deficiencies. . . .
If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.” 466 U.S. at 697.
Beyond this, he contends that prejudice was patent because no
petition in the supreme court, albeit in somewhat greater detail and from
additional sources. Like the initial series, the 1993/1994 declarations were
not part of the record at the state evidentiary hearing. See Keeney v.
Tamayo-Reyes, 504 U.S. 1, 7-10 (1992). Fields has never argued that any
of the circumstances set out in 28 U.S.C. § 2254(d)(1)-(8) (1966) are pres-
ent.
FIELDS v. BROWN 15991
mitigating evidence was proffered, which left the jury with no
choice but to impose the death penalty; it enabled the prosecu-
tor to argue that “[p]lain and simple, there are [no mitigating
factors]”;9 and specific mitigation evidence has a substantial
impact on jurors.
[7] We are not persuaded that the trial which Fields sup-
poses should have occurred would have produced a different
outcome. In short, we agree with the analysis of the California
Supreme Court and the district court. While Fields’s child-
hood as described by Christopher was undoubtedly grim, the
jury already knew something of his background, what his
mother and sister were like, and that he had psychological and
emotional difficulties. It is not reasonably probable that Chris-
topher’s description of the skin rash that Fields suffered from
age two until he was six, or his father’s alcoholism and verbal
abuse against the children, the domestic violence Fields wit-
nessed, the filthy house in which he grew up, his poverty, or
parental neglect — deplorable though all are — would out-
weigh one of the most aggravated crime sprees in the memory
of the California Supreme Court.10 Cf. Stankewitz v. Wood-
9
The prosecutor stated:
Finally, any other circumstance which extenuates the gravity of
the crime, even though it is not a legal excuse for the crime?
Plain and simple, there are none. When the defendant comes up
here through his counsel and asks you for mercy, think of the
mercy that he gave to Gwendolyn Barnett, whose head he so
ruthlessly smashed; and Cynthia Smith, who he put through a
night of terror; Colleen Coates, who was willing to jump out of
a second-story window to escape the defendant’s wrath; to Albert
Allen, whose head was brutally smashed and bashed by the
defendant; and, yes, to Rosemary Cobb, who, in crying out for
her God, defendant took the life, shooting her numerous times at
contact range and beating her head, who lived for ten to fifteen
minutes after that.
10
Christopher’s testimony would not have been entirely sympathetic, as
she also testified that Fields had been in juvenile court once or twice, was
put into a boys’ home for stealing at the age of 11 or 12, had robbed a tav-
ern when he was 15 and was involved in at least one fight, when he was
16, during which he was stabbed in the neck.
15992 FIELDS v. BROWN
ford, 365 F.3d 706, 718, 723 (9th Cir. 2004) (holding defi-
ciency was prejudicial when evidence would have shown that
Stankewitz was severely beaten by his mother as a child, was
sexually molested while under the care of the state, was
unable to use eating utensils or engage in rudimentary social
graces, and would wet his bed and smear feces on the wall of
his bedroom upon leaving the state’s care as a child, and suf-
fered organic brain damage); Mayfield v. Woodford, 270 F.3d
915, 929-32 (9th Cir. 2001) (en banc) (holding deficient per-
formance was prejudicial in light of testimony at evidentiary
hearing indicating witnesses would have testified at trial
regarding Mayfield’s childhood diabetes and associated hard-
ships, diagnoses of childhood depression, drug use and exac-
erbation drugs would have had on existing psychological
ailments, and positive things Mayfield did in his life).
[8] Fields’s position in a nutshell is that the fact “that the
aggravating evidence was ‘extensive and powerful’ . . . only
demonstrates that counsel’s failures were so prejudicial.” We
understand his point, that powerful aggravating evidence calls
for powerful mitigating evidence, but this simply restates the
deficiency inquiry. It begs the prejudice question of whether
the evidence that could have been adduced with proper inves-
tigation (that is, if counsel had not been deficient) would, if
presented at trial, have been persuasive enough to outweigh
the aggravating evidence. When, as here, the aggravating evi-
dence is powerful, the mitigating evidence that would have
been produced at trial following a proper investigation must
be sufficiently compelling to undermine confidence in the
outcome. See Boyde v. Brown, 404 F.3d 1159, 1179 (9th Cir.)
(“Our prejudice inquiry must focus on whether the result
would have been different in light of the evidence that would
have been presented to the jury had [the petitioner’s] counsel
not been deficient.”), amended by 421 F.3d 1154 (9th Cir.
2005). It was to determine what the new mix would look like
that the evidentiary hearing was ordered by the California
Supreme Court.11 Based on the record that was produced in
11
As the state supreme court explained:
In a habeas corpus petition alleging incompetent investigation or
FIELDS v. BROWN 15993
that hearing, the state supreme court concluded that Fields
failed to establish prejudice on account of counsel’s failure to
investigate his childhood adequately. We cannot conclude
otherwise.
[9] Nor can we disagree with the state supreme court’s
determination that counsel’s performance was not deficient
with respect to investigating Fields’s mental condition. Three
psychiatrists agreed that he had an antisocial personality dis-
order. Fields’s experts were well-qualified, and neither sug-
gested to counsel that further examination or expert
consultation was necessary. Cf. Hendricks v. Calderon, 70
F.3d 1032, 1038 (9th Cir. 1995) (“In general, an attorney is
entitled to rely on the opinions of mental health experts in
deciding whether to pursue an insanity or diminished capacity
defense.”). Fields’s argument that adequate investigation
would have yielded more accurate information is well taken
in the abstract, but again, falls short in light of the facts reli-
ably found in the evidentiary hearing. While Chaleff and Dr.
Missett testified at the evidentiary hearing that interviews
Jones failed to conduct raised the possibility of a “passive
dependent” personality and some organic brain impairment,
the state supreme court found that this would have been dis-
presentation of evidence by trial counsel, a petitioner generally
cannot expect to establish a case for relief solely by relying on
testimony, expert or otherwise, describing what evidence might
have been discovered and produced by competent counsel.
Instead, he must generally produce that evidence so the credibil-
ity of the witnesses can be tested by cross-examination. (If the
prosecution claims it could have refuted that testimony by rebut-
tal evidence, it may also have to produce the witnesses to prove
its claim.) In effect, the petitioner must show us what the trial
would have been like, had he been competently represented, so
we can compare that with the trial that actually occurred and
determine whether it is reasonably probable that the result would
have been different.
In re Fields, 51 Cal. 3d at 1071, 800 P.2d at 866.
15994 FIELDS v. BROWN
puted by experts relying on Fields’s criminal record to sup-
port a diagnosis of antisocial personality. Further, Dr.
Trockman conducted a Bender-Gestalt test for organic brain
disease before trial and informed Jones that the test did not
demonstrate the existence of any such disease. Although Mis-
sett opined that the test should be redone, Jones cannot be
faulted for accepting Trockman’s opinion. Harris v. Vasquez,
949 F.2d 1497, 1525 (9th Cir. 1990) (“It is certainly within
the ‘wide range of professionally competent assistance’ for an
attorney to rely on properly selected experts.”); see also Wil-
liams v. Woodford, 384 F.3d 567, 611 (9th Cir. 2004) (hold-
ing counsel’s decision not to investigate mental defense
further was reasonable in light of conclusions of mental health
experts). Finally, Dr. Faerstein testified at the hearing that he
saw no reason to change his opinion, expressed at trial, that
Fields did not suffer from organic brain damage. That he and
Dr. Missett disagree does not mean that trial counsel was defi-
cient.
V
Finally, Fields claims prosecutorial misconduct arising
from the prosecutor’s statement during the penalty phase clos-
ing argument that the jury should think of the mercy Fields
showed his victims, and that the death penalty was appropri-
ate in light of the Allen homicide. We disagree. Attorneys are
given wide latitude during closing arguments. See United
States v. Vaccaro, 816 F.2d 443, 451 (9th Cir. 1987), abro-
gated on other grounds by Huddleston v. United States, 485
U.S. 681 (1988)). The prosecutor’s argument was based on
evidence the jury could properly consider as aggravating
under California law and the instructions. See Cal. Penal Code
§ 190.3(a) (instructing that jurors should consider “[t]he cir-
cumstances of the crime of which the defendant was con-
victed in the present proceeding”); id. § 190.3(b) (instructing
jurors to consider prior violent criminal acts committed by the
defendant).
FIELDS v. BROWN 15995
VI
The state cross-appeals the district court’s decision to grant
relief on Fields’s claim of juror misconduct based on the
jury’s use of Biblical quotations and dictionary definitions. It
presses four reasons for error: the claim is not timely under
Rule 9(a) of the Rules Governing Section 2254 Cases in the
United States District Courts; it is Teague-barred; the district
court’s finding was based on juror declarations that are inad-
missible under Federal Rule of Evidence 606(b); and the
jury’s consideration of the Biblical passages and dictionary
definitions did not violate the Constitution or have a substan-
tial and injurious effect on the verdict.
The penalty phase of Fields’s trial commenced on July 16,
1979, lasted less than a day, and the jury deliberated from 2
p.m. until 4 p.m. without reaching a verdict. That evening,
Rodney White, the foreperson of the jury, checked the Bible
and other reference texts and made notes “for” and “against”
imposition of the death penalty which he brought to the delib-
erations the next day.12 White also consulted a dictionary for
12
The “for” side notes:
• “placate gods”
• “eye for eye”
• “deterrence”
• “Fitting punishment to crime”
• “Rights of victim”
• “Duty of the state to protect citizens”
• “Biblical
“Genesis 9:6 ‘Whoso sheddeth man’s blood by man shall
his blood be shed, for in the image of God made He man’
“Exodus 21:12 ‘He that smiteth a man, so that he dies, shall
surely be ‘put to death’ ”
• “Possibility of Repeated offenses”
• “Murder = a rejection of the values of society”
15996 FIELDS v. BROWN
definitions of the words “extenuation,” “vindication,” and
“mitigate,” and brought these notes to the jury room as well.13
• “New Test
“Romans 13:1-5 ‘Let everyone be subject to the higher
authorities, for there exists no authority except from God,
and those who exist have been appointed by God. There-
fore, he who resists the authority, resists the ordinance of
God; and they that resist bring on themselves condemnation
‘For rulers are a terror not to the good work but to the evil.
Dost thou wish, then, not to fear the authority?
‘Do what is good and thou will have praise from it. For it
is God[’s] minister to thee for good. But if thou dost what
is evil, fear, for not without reason does it carry the sword.
For it is God’s minister, an avenger to execute wrath on
him who does evil. Wherefore you must needs be subject,
not only because of the wrath, but also for conscience’s
sake.’ ”
• “Luther, Calvin, Aquinas felt this to be supportive of capital
punishment” and
• “Per Paul’s letter to Romans: State has power for two reasons
— 1. Satisfy demand’s [sic] of God’s service [and] 2. Protect
society by deterring future crime.”
The “against” side notes:
• “No real deterrent value—mostly because murderers not nor-
mal”
• “Question of ‘Just’—There is no simple, ‘just,’ penalty”
• “Discriminatory selection”
• “Human fallibility—Perhaps wrong chap convicted.”
• “Rehabilitation”
• “ ‘Popular’ feelings”
13
The notes were:
Extenuation - to thin out - palliation, softening, whitewash, gloss
over, varnish, loophole, make allowance for
Vindication - justifiable, excusable, inculpable, blameless, legiti-
mate not blameworthy . . . vindicable/extenuating
FIELDS v. BROWN 15997
The notes were shared or the information was received by at
least some jurors when deliberations resumed at 9:30 a.m. on
July 17th. By 3 p.m. that afternoon, the jury had reached its
verdict.
Fields first raised the issue of juror misconduct in his fed-
eral petition. He presented a number of juror declarations that
the district court ultimately struck to the extent that the infor-
mation contained in them was inadmissible under Rule 606(b).14
Juror testimony about consideration of extrinsic evidence may
be considered by a reviewing court, but juror testimony about
the subjective effect of evidence on the particular juror or
about the deliberative process may not. See, e.g., Sassounian
v. Roe, 230 F.3d 1097, 1108-09 (9th Cir. 2000). However,
“The proper object of extenuate in its sense of making excuses
for is a word expressing something bad in itself, as guilt, coward-
ice, cruelty — not a neutral word such as conduct or behavior -
circumstances [sic]
“The meaning of excuse should not attach to extenuate, the
word.” VA [sic] Fowler
Mitigate - soft, smooth, gentle, mild. abate, lessen, allay, attenu-
ate, weaken, reduce, render or cause to be less, less harsh[,]
decrease, diminish, decrease, curtail quality, limit, narrow,
assuage.
14
Rule 606(b) provides:
Upon an inquiry into the validity of a verdict or indictment, a
juror may not testify as to any matter of statement occurring dur-
ing the course of the jury’s deliberations or to the effect of any-
thing upon that or any other juror’s mind or emotions as
influencing the juror to assent to or dissent from the verdict or
indictment or concerning the juror’s mental processes in connec-
tion therewith, except that a juror may testify on the question
whether extraneous prejudicial information was improperly
brought to the jury’s attention or whether any outside influence
was improperly brought to bear upon any juror. Nor may a juror’s
affidavit or evidence of any statement by the juror concerning a
matter about which the juror would be precluded from testifying
be received for these purposes.
15998 FIELDS v. BROWN
based on what was left, the court found that the religious
material in White’s notes was actually received by the jury,
was available to it on the second day of deliberations, was dis-
cussed by some jurors, was presented at an early stage of
deliberations, and directly related to a material aspect of the
case. See Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995)
(identifying the factors to consider in determining whether
jury exposure to facts not in evidence deprives a defendant of
his Sixth Amendment rights to confrontation, cross-
examination and assistance of counsel as “(1) whether the
extrinsic material was actually received, and if so, how; (2)
the length of time it was available to the jury; (3) the extent
to which the jury discussed and considered it; (4) whether the
material was introduced before a verdict was reached, and if
so, at what point in the deliberations it was introduced; and
(5) any other matters which may bear on the issue of . . .
whether the introduction of extrinsic material [substantially
and injuriously] affected the verdict” (alterations in original)
(quoting Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir.
1986))).15 The district court concluded that the jury’s consid-
eration of Biblical references offended the principle that reli-
gion may not play a role in the sentencing process, and that
it had the potential to be highly prejudicial.
15
Other facts we have considered that might suggest that the potential
prejudice of extrinsic information is diminished in a particular case
include
[1] whether the prejudicial statement was ambiguously phrased;
[2] whether the extraneous information was otherwise admissible
or merely cumulative of other evidence adduced at trial; [3]
whether a curative instruction was given or some other step taken
to ameliorate the prejudice; [4] the trial context; and [5] whether
the statement was insufficiently prejudicial given the issues and
evidence in the case.
Sassounian, 230 F.3d at 1109 (alterations in original) (quoting Jeffries v.
Wood, 114 F.3d 1484, 1491-92 (9th Cir. 1997) (footnotes omitted)) (inter-
nal quotation marks omitted).
FIELDS v. BROWN 15999
Before considering anything else, we must first decide the
Teague issue. Caspari v. Bohlen, 510 U.S. 383, 389 (1994)
(instructing that if a state argues that the district court granted
a habeas petition on the basis of a new rule of constitutional
law that is Teague-barred, a court must address the Teague
issue first); Leavitt, 383 F.3d at 816 (same). The state’s posi-
tion is that as of the time Fields’s sentence became final, law
binding on state courts allowed jurors to exercise “ ‘unbridled
discretion in determining whether the death penalty should be
imposed after it has found that the defendant is a member of
the class made eligible for that penalty [under the state stat-
ute].’ ” Tuilaepa v. California, 512 U.S. 967, 979-80 (1994)
(quoting Zant v. Stephens, 462 U.S. 862, 875 (1983)). The
state also points out that as of then, it was established law that
a capital jury “express[es] the conscience of the community
on the ultimate question of life or death.” Witherspoon v. Illi-
nois, 391 US. 510, 519 (1968). While these propositions are
no doubt so, it is also true that as of 1984 it was well estab-
lished “in capital cases that the jury should pass upon the case
free from external causes tending to disturb the exercise of
deliberate and unbiased judgment.” See Mattox v. United
States, 146 U.S. 140, 149 (1892). The district court’s ruling
cannot be Teague-barred at this level of generality.
[10] In addition, the Sixth Amendment inquiry is fact-
specific. It requires a reviewing court to determine whether
the particular materials that a juror brought into the jury room
are extraneous materials, or are merely “the kind of common
knowledge which most jurors are presumed to possess.”
Rodriguez v. Marshall, 125 F.3d 739, 745 (9th Cir. 1997),
overruled on other grounds, Payton v. Woodford, 299 F.3d
815, 828-29 & n.11 (9th Cir. 2002) (en banc); United States
v. Bagnariol, 665 F.2d 877, 888 (9th Cir. 1981) (discounting
claim of prejudice where extraneous information was some-
thing “any reasonable juror already knew”). Although the
state maintains that Fields must cite authority binding on Cali-
fornia courts at the time his sentence became final which held
that it was a constitutional violation to bring Bible quotations
16000 FIELDS v. BROWN
and dictionary definitions into the jury room during penalty-
phase deliberations, we have been unwilling for Teague pur-
poses to require a case “involving identical facts, circum-
stances, and legal issues.” Keating, 191 F.3d at 1061 n.11.
[11] Turning, then, to the merits, we disagree with the dis-
trict court’s assumption that the Biblical references are extrin-
sic, factual material. It did not explicitly decide whether the
Bible verses in White’s notes were common knowledge or
extrinsic facts. Certainly Biblical verses are not the sort of
material that should have been made part of the record. But
Bible verses nevertheless are common knowledge in the sense
that they are part of the pool of information that many people
possess. While some verses may be more familiar than others,
White’s “for” references all expound on the well-known
themes of “an eye for an eye” and “he who lives by the sword,
shall die by the sword.” Fields nowhere suggests that White
was not free to recite these verses or resort to their reasoning
in support of whatever position he took. See McDowell v. Cal-
deron, 107 F.3d 1351, 1367 (9th Cir. 1997) (holding juror
declaration about the conduct of deliberations inadmissible
under Rule 606(b) and noting that “[t]he type of after-
acquired information that potentially taints a jury verdict
should be carefully distinguished from the general knowledge,
opinions, feelings and bias that every juror carries into the
jury room.” (quoting Hard v. Burlington N. R.R. Co., 870
F.2d 1454, 1461 (9th Cir. 1989))); Burlington, 870 F.2d at
1462 (denying new trial where one juror used personal knowl-
edge of x-ray interpretation to sway others because “[i]t is
expected that jurors will bring their life experiences to bear on
the facts of the case”). Sharing notes is not constitutionally
infirm if sharing memory isn’t. Jurors may be screened for
bias but otherwise should not be expected to leave their life
experiences and general knowledge behind.
[12] To the extent that White’s notes are extrinsic or
improper, however, cases where we have found that extrinsic
material had a substantial and injurious effect on a verdict are
FIELDS v. BROWN 16001
of a different order of magnitude.16 We have found prejudice
when, for example, the jury discussed an extra-record tele-
phone call that directly related to the defendant’s motive, Sas-
sounian, 230 F.3d at 1110; when a juror told others about the
defendant’s reputation for violence, Lawson, 60 F.3d at 612-
13; and when the jury learned that the defendant had commit-
ted a prior armed robbery, Jeffries v. Blodgett, 5 F.3d 1180,
1191 (9th Cir. 1993). White’s Bible verses are not of this sort;
they are not, in fact, facts at all. As Justice Stevens put it,
“While the question of innocence or guilt of the offense is
essentially a question of fact, the choice between life impris-
onment and capital punishment is both a question of underly-
ing fact and a matter of reasoned moral judgment.” Sawyer v.
Whitley, 505 U.S. 333, 370 (1992) (Stevens, J., concurring in
the judgment).
[13] At the same time, as Fields correctly points out, we
have held that it is improper and prejudicial for the prosecu-
tion to invoke God or to paraphrase a Biblical passage in clos-
ing argument in the penalty phase of a capital case. Sandoval
v. Calderon, 241 F.3d 765, 776 (9th Cir. 2000). However, the
prosecutor is constrained in ways that a juror is not. As we
explained in Sandoval, there the prosecutor’s argument frus-
trated the purpose of the closing argument, which is to review
the evidence presented at trial that is relevant to the jury’s
decision as defined by the instructions given by the court. Id.
Also, the prosecution’s invocation of “higher law” or extra-
judicial authority violated the Eighth Amendment principle of
narrowly channeled sentencing discretion. Id. Further, we
noted that argument involving religious authority undercuts
the jury’s own sense of responsibility for imposing the death
penalty. Id. at 777. None of these considerations applies in
similar fashion to a juror; what may be improper or prejudi-
16
See Sassounian, 230 F.3d at 1108 (adopting the standard of review for
harmless error of Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), for
unconstitutional juror misconduct).
16002 FIELDS v. BROWN
cial when said by a prosecutor may not be so when said by
a juror.
[14] Whether or not White should have brought his notes
to the jury room and shared them, we cannot say that the Bib-
lical part of the “for” part of the notes had a substantial and
injurious effect on the verdict. His own notes had an “against”
part as well. So far as we can tell the communication occurred
early on in deliberations. There was plenty of time for jurors
to sort through the evidence and to reflect on whether the ulti-
mate penalty was the right penalty. The aggravating evidence
is powerful, as all judges to review it have remarked.
Although closing argument for the defense might have been
more persuasive if backed up by more details in the evidence,
it nevertheless made a forceful case for mitigation on account
of Fields’s youth, lack of familial support and guidance,
insanity, drug use, and lingering doubt. Nothing in the record
indicates that the jurors did not follow the instructions on the
law as given by the trial judge. Accordingly, we see no consti-
tutional error that requires the writ to be granted on account
of the juror’s references to scripture.17
[15] Dictionary definitions for terms used in the instruc-
tions directly implicate the law given by the court by which
the jury’s decision must be determined. If a jury needs help
with the instructions, the proper thing to do is ask the judge.
However, whether or not it was misconduct to research these
definitions, and for the jury to review them, we cannot say
that the jury’s consideration of the definitions on White’s
notes had a substantial and injurious effect or influence in
determining the verdict in this case. Fields has shown no
influence whatsoever, and none is apparent to us. Accord-
ingly, the misconduct is harmless.
17
For this reason we do not reach the state’s remaining arguments for
reversal.
FIELDS v. BROWN 16003
VII
We hold that Fields was not deprived of an impartial jury
and therefore the district court’s judgment on his conviction
is affirmed. Even assuming that trial counsel was deficient in
preparing for the penalty phase by not interviewing friends
and family in Fields’s hometown, Fields was nevertheless not
deprived of the effective assistance of counsel in violation of
the Sixth Amendment because there is no reasonable likeli-
hood that the mitigating evidence that could have been pro-
duced at trial would have outweighed the aggravating
evidence of a crime spree involving three kidnapings, three
rapes, four robberies, and one murder within a couple of
weeks of release from prison for another homicide. Counsel
was not deficient and neither was Fields prejudiced by the
investigation into his mental condition. To this extent we also
affirm the district court’s judgment. However, we conclude
that juror misconduct, if it occurred, had no substantial or
injurious effect on the verdict. To this extent, the district
court’s judgment is reversed. In sum, we see no prejudicial
error, nor any cumulative error, requiring the writ to issue.
AFFIRMED IN PART; REVERSED IN PART.