filed: March 31, 1994; As Corrected April 1, 1994.
Appeal from District Court of the Virgin Islands (Division of St. Thomas and St. John). (D.C. Civ. No. 88-00139).
Before: Mansmann, Hutchinson and Lewis, Circuit Judges.
William Weatherwax appeals from an order dismissing, without an evidentiary hearing, his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. In this petition Weatherwax alleged that both his trial and appellate counsel failed to provide him with effective representation. We center on the claim that trial counsel failed to request a voir dire to determine the impact on the jury when one of its members brought a newspaper article concerning Weatherwax's trial into the juryroom.
Because this allegation, if proven, would constitute grounds for habeas relief, assuming counsel did not have a strategic reason for failing to request voir dire, we will vacate the order dismissing the writ and remand the matter to the district court to conduct an evidentiary hearing on this issue. Our jurisdiction is pursuant to 28 U.S.C. § 1291.
William Weatherwax was convicted by a jury of second degree murder in the shooting of St. Clair Hazel. At trial, Weatherwax did not deny shooting Hazel but claimed he acted in self defense and that his weapon discharged accidentally. Weatherwax received a sentence of 25 years on the second degree murder charge and five years for unlawful possession of a weapon. We affirmed the district court's judgment of conviction. Government of the Virgin Islands v. Weatherwax, 893 F.2d 1329, mem. op. at 9 (3d Cir. 1989).
On March 21, 1992, Weatherwax filed a petition for writ of habeas corpus, alleging ineffective assistance of both his trial and appellate counsel, identifying five instances where trial counsel failed to effectively aid his defense.*fn1 Regarding representation on appeal, Weatherwax's chief complaint was that the appointed counsel was ineffective because he failed to obtain a transcript of the prosecutor's closing remarks, which in turn precluded him from effectively arguing the appeal's merits.*fn2
It is an allegation of juror misconduct -- the introduction of a newspaper article concerning the trial proceedings into the juryroom -- which commands our attention. We must decide if trial counsel's failure to notify the court of this incident and to request a jury voir dire to determine if prejudice resulted equates to ineffective representation.
The question of whether inadequate performance by counsel necessitates habeas relief involves a multi-step inquiry. As in any case where the writ is denied without a hearing, we must first determine whether Weatherwax has alleged facts, viewed in the light most favorable to him, that, if proven, would entitle him to relief. "If so, we must then decide if an evidentiary hearing is necessary to establish the truth of [the petitioner's] allegations." Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 (3d Cir. 1991).
When ineffectiveness of counsel is the alleged basis for habeas relief, our analysis is further guided by United States v. Dawson, 857 F.2d 923 (3d Cir. 1988). Under Dawson, we examine the existing record to determine whether all non-frivolous claims, accepted as true, "conclusively failed to show ineffective assistance of counsel." Id. at 927-28. Counsel's effectiveness is determined by the Strickland v. Washington, 466 U.S. 668 at 688, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), standard: whether counsel's performance was so deficient that errors made were of a magnitude that the guarantees of the Sixth Amendment were not satisfied and the defendant was deprived of a fair trial. Id. at 687. We review the facts alleged by Weatherwax regarding the juror misconduct with these standards in mind.
On day three of Weatherwax's trial, a banner headline on page 3 of the local newspaper, the St. Croix Avis, announced the following: "WEATHERWAX: I COCKED HAMMER AND TOOK AIM." This headline purported to highlight Weatherwax's testimony from the previous day of the trial. The article following the headline first detailed the prosecutor's dramatic display of a handgun, then reported the follow-up questioning as follows:
[The prosecutor] then took the gun, held it in the air and fired into an empty chamber, asking Weatherwax if that was the way he had fired it.
Weatherwax replied, "Not that night. I cocked the hammer and took aim."
"When did you cock it?" [The prosecutor] asked.
"When he started coming at me with the rocks."
"What was the purpose of cocking the hammer?" was [the prosecutor's] next question.
"To get the gun ready to fire" Weatherwax replied.
[The prosecutor's] next question was, "You didn't cock the hammer by accident did you?"
Weatherwax replied, "I pointed the gun right at him . . . I pulled the gun overhead . . . the gun just went off . . . Things just happened so fast . . . It was . . . Just a minute . . . what are you getting at?"
Charles Fisher, Weatherwax: I Cocked Hammer And Took Aim, St. Croix Avis, March 9, 1989, at 3, 11 (emphasis added).
In considering the impact of the newspaper story, the district court observed that a court would reverse the conviction or grant Weatherwax a new trial only if there was "'a reasonable probability' that the cited material in the article would affect the verdict, and each case is fact specific." Government of Virgin Islands v. Weatherwax, Crim. No. 88-139, mem. op. at 5 (D.V.I. Feb. 22, 1993), citing United States v. Herrero, 893 F.2d 1512 (7th Cir. 1990). The court then characterized the newspaper article as "a verbatim and dispassionate account of the testimony adduced at trial," and as so classified, its reading by the jury could not be prejudicial. The court concluded that trial counsel's decision not to pursue the issue was a tactical one insufficient to support an ineffectiveness claim.
We disagree. Indeed, the actual trial testimony which the article professes to describe, quoted verbatim, varies from the published account in several significant respects. During the prosecutor's cross-examination of Weatherwax, the following exchange occurred:
[Nissman] Q. I want you to watch me pull this trigger and I want you to tell me if your gun fired about the same way?
[Weatherwax] A. Not that night.
Q. Regularly, you said not that night. Is that how the gun regularly fired?
Q. And have you shot this gun before.
Q. And you would have to pull the ...