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O. Dean Sanderford, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of Colorado, Denver, CO (Virginia L. Grady, Federal
Public Defender, Interim, Office of the Federal Public Defender for the District of Colorado, Denver, CO, and Janet D. Roloff, McAlester, OK, with him on the briefs), appearing for Appellant.
Jennifer J. Dickson, Assistant Attorney General of Oklahoma (E. Scott Pruitt, Attorney General of Oklahoma, with her on the brief), Office of the Attorney General of Oklahoma, Oklahoma City, OK, appearing for Appellee.
Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
An Oklahoma state court jury convicted Bigler Jobe " Bud" Stouffer of first degree murder of one victim and shooting with intent to kill another victim. The jury sentenced him to death for the murder and to life imprisonment for the shooting.
The Oklahoma Court of Criminal Appeals (" OCCA" ) affirmed on direct appeal and denied post-conviction relief. Mr. Stouffer sought habeas relief in federal court under 28 U.S.C. § 2254, challenging his conviction and death sentence on nine grounds. The district court denied relief but granted a certificate of appealability (" COA" ) on four grounds.
Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(c)(1)(A), we affirm the denial of habeas relief on three of the four grounds. We reverse on the ground of jury tampering and remand to the district court for an evidentiary hearing on this issue.
A. Factual History
The OCCA outlined the facts underlying Mr. Stouffer's case, and " [w]e presume that the factual findings of the state court are correct" unless Mr. Stouffer presents clear and convincing evidence otherwise. Fairchild v. Workman, 579 F.3d 1134, 1137 (10th Cir.2009); see also 28 U.S.C. § 2254(e)(1) (" [A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." ). Mr. Stouffer does not offer clear and convincing evidence that the OCCA's factual conclusions about the crime are erroneous. We therefore presume them to be correct.
The OCCA found the following events transpired in January 1985:
Doug Ivens and Velva Ivens ... were separated and pursuing divorce proceedings. B.J. (Bud) Stouffer was dating Velva. Doug Ivens was dating Linda Reaves.
Doug Ivens testified that on January 24, 1985, Stouffer came to his house asking for a pistol. Stouffer told him that he needed a gun because there were prowlers or a burglar at Velva Ivens's house. Doug Ivens was concerned for the safety of his estranged wife and his two eight-year-old daughters.
Doug Ivens went to his bedroom and came out with a bank bag containing a loaded Colt .357 caliber revolver. Doug gave the bank bag to Stouffer. Stouffer turned his back to Doug Ivens, and then he turned around with the pistol in his hand. Stouffer fired two shots at Ivens, and Ivens fell to the floor. Stouffer then went to where Linda Reaves was reclining on the couch and shot her twice in the head. Stouffer walked back to Ivens and fired another shot into Ivens's face. Stouffer then left.
Ivens was able to crawl to the phone and call the police. He told police that Bud Stouffer had shot him and Linda Reaves. Reaves died as a result of her gunshot wounds, but Doug Ivens survived.
Stouffer v. Oklahoma, 147 P.3d 245, 256 (Okla.Crim.App.2006). Other relevant facts are discussed later in this opinion.
B. Procedural History
Oklahoma charged Mr. Stouffer in state court with First Degree (malice) Murder, Okla. stat. tit. 21, § 701.7(A) (1981), and Shooting with Intent to Kill, id. at § 642. A jury convicted him on both counts in 1985. It sentenced him to death for Ms. Reaves's murder and to life imprisonment for shooting Mr. Ivens. See Stouffer v. Oklahoma, 738 P.2d 1349, 1352 (Okla.Crim.App.1987). We granted Mr. Stouffer habeas relief, concluding he was denied effective assistance of counsel. Stouffer v. Reynolds, 168 F.3d 1155, 1158 (10th Cir.1999) (reversing district court's denial of habeas relief); Stouffer v. Reynolds, 214 F.3d 1231, 1235 (10th Cir.2000) (affirming district court's decision to vacate Mr. Stouffer's first conviction).
The State retried Mr. Stouffer in January and February 2003, and a second jury convicted him on the same two counts. The jury sentenced him to death for Ms. Reaves's murder and to 100 years of imprisonment for shooting Mr. Ivens. 
The OCCA affirmed the convictions and sentences on direct appeal. Stouffer v. Oklahoma, 147 P.3d at 280. Although it found error or possible error on three grounds, it found all errors harmless. Id. at 263-64, 274, 278-280. The OCCA also denied Mr. Stouffer's petition for state post-conviction relief. Stouffer v. Oklahoma, No. PCD-2003-835, slip op. at 8 (Okla.Crim.App. Oct. 26, 2007) (unpublished).
Mr. Stouffer then filed a habeas petition with the United States District Court for the Western District of Oklahoma under 28 U.S.C. § 2254, asserting nine grounds for relief. The district court denied relief but granted a COA on four grounds.
On appeal, Mr. Stouffer seeks relief on four grounds: (A) jury tampering; (B)
prosecutorial misconduct; (C) victim impact testimony; and (D) cumulative error.
A. Alleged Jury Tampering
Mr. Stouffer asserts that he provided the trial court with credible evidence of improper external communication with a juror and that the trial court improperly refused to allow an evidentiary hearing to determine whether the incident caused him prejudice. We conclude that the trial court erred by not conducting an evidentiary hearing, and we remand to the federal district court with instructions to hold the necessary hearing.
1. Standard of review
In a habeas case challenging a state court conviction, " the appropriate standard of review depends upon whether a claim was decided on the merits in state court." McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir.2003); see also Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
The OCCA did not address the merits of Mr. Stouffer's jury tampering claim. Mr. Stouffer raised this issue in his petition for state post-conviction relief through his claim that his counsel on direct appeal had been ineffective for failing to raise it. He asked the OCCA for an evidentiary hearing. The OCCA rejected the jury tampering claim, stating that it had addressed the issue on direct appeal and " principles of res judicata ... barred [Mr. Stouffer] from litigating this issue anew." Stouffer v. Oklahoma, No. PCD-2003-835, slip op. at 5 (Okla.Crim.App. Oct. 26, 2007) (unpublished). The parties agree that the OCCA misread the record and that the jury tampering claim was not addressed on direct appeal.
Because the OCCA did not consider the merits of this claim, " our standard of review is more searching" than our review of issues that have been resolved on the merits by the state court. Alverson v. Workman, 595 F.3d 1142, 1146 (10th Cir.2010). We consider legal questions de novo and factual findings, if any, for clear error. Id.; Cannon v. Mullin, 383 F.3d 1152, 1160 (10th Cir.2004). We apply an abuse of discretion standard in reviewing a trial court's decision whether to hold an evidentiary hearing to investigate alleged jury tampering. United States v. Scull, 321 F.3d 1270, 1280 (10th Cir.2003).
2. Legal background
" In all criminal prosecutions, the accused shall enjoy the right to a ... public trial, by an impartial jury." U.S. Const. amend. VI. " The integrity of jury proceedings must not be jeopardized by unauthorized invasions." Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954) (" Remmer " ). " Because impartial jurors are the cornerstone of our system of justice and central to the Sixth Amendment's promise of a fair trial, we ‘ guard jealously the sanctity of the jury's right to operate as freely as possible from outside unauthorized intrusions purposefully made.’ " United States v. Dutkel, 192 F.3d 893, 894 (9th Cir.1999) (quoting Remmer v. United States, 350 U.S. 377, 382, 76 S.Ct. 425, 100 L.Ed. 435 (1956) ( " Remmer II " )).
When confronted with credible evidence of jury tampering, a trial court has a duty to investigate. See id. at 899; Cannon, 383 F.3d at 1177; United States v. Bradshaw, 281 F.3d 278, 289 (1st Cir.2002); United States v. Corrado, 227 F.3d 528, 536 (6th Cir.2000); United States v. Davis, 177 F.3d 552, 556-57 (6th Cir.1999); United States v. Day, 830 F.2d 1099, 1103 (10th Cir.1987). In this context, the term " jury tampering" refers to improper external communication with a juror about a matter pending before the jury. See, e.g., Remmer, 347 U.S. at 229, 74 S.Ct. 450;
United States v. Sylvester, 143 F.3d 923, 932 (5th Cir.1998). In such cases, " the proper inquiry is whether the unauthorized conduct or contact is potentially prejudicial, not whether the parties alleged to have tampered with the jury did so intentionally." United States v. Rutherford, 371 F.3d 634, 641-42 (9th Cir.2004); see also Gold v. United States, 352 U.S. 985, 986, 77 S.Ct. 378, 1 L.Ed.2d 360 (1957).
" When a trial court is apprised of the fact that an extrinsic influence may have tainted the trial, the proper remedy is a hearing to determine the circumstances of the improper contact and the extent of the prejudice, if any, to the defendant." Scull, 321 F.3d at 1280 (quoting United States v. Hornung, 848 F.2d 1040, 1045 (10th Cir.1988)). This evidentiary hearing is often called a " Remmer hearing," following the seminal Supreme Court case on the matter. See Day, 830 F.2d at 1106. The trial court's duty to conduct a Remmer hearing when genuine concerns of improper juror contact arise is clearly established by the Supreme Court. Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) ( " This Court has long held that the remedy for allegations of juror partiality is a hearing." ); Remmer, 347 U.S. at 229-30, 74 S.Ct. 450; Cannon, 383 F.3d at 1169-70; Scull, 321 F.3d at 1280 & n. 5.
Courts have found credible evidence of jury tampering or improper external jury communication in a variety of circumstances, such as a short restroom conversation between a juror and a law enforcement witness that briefly touched on matters tangential to the case, Day, 830 F.2d at 1101; a defendant's allegation that a person had approached him to solicit a bribe to sway the jury, Corrado, 227 F.3d at 535; and a hearsay report that the father of a witness had improper contact with jurors, Cannon, 383 F.3d at 1169.
Yet " it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote." Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Thus, not every allegation of improper juror contact requires a hearing. For example, a hearing may not be warranted if the defendant provides only speculation that improper juror contact may have occurred. See, e.g., United States v. Frost, 125 F.3d 346, 376-77 (6th Cir.1997) (no hearing required after juror became ill and left jury room to lie down in clerk's office, where there was no evidence juror had external contact during this time). A hearing also may be unnecessary if the communication was not about the matter pending before
the jury. See e.g., United States v. Robertson, 473 F.3d 1289, 1294-95 (10th Cir.2007) (no hearing required after juror initiated brief exchange of pleasantries with clerk outside courthouse and there was no discussion about the case).
Finally, a hearing may be unnecessary if " the challenged statement is both ambiguous and innocuous" or when there is no evidence any juror actually heard or saw it. Brown v. Finnan, 598 F.3d 416, 420-23 (7th Cir.2010) (no hearing required after victim's mother proclaimed from the gallery that " the situation is racist," because the victim and the accused were of the same race and the statement was therefore ambiguous, and because there was no evidence the jury heard it); cf. Malicoat v. Mullin, 426 F.3d 1241, 1246, 1247 (10th Cir.2005) (no hearing was required to investigate whether jurors were influenced by an inscription on the courtroom wall that read " eye for an eye and a tooth for a tooth," in part because there was " no evidence that the jury could see the inscription given its vantage point" ).
3. Improper juror communication
Toward the end of the penalty stage of Mr. Stouffer's second trial, defense counsel noticed the husband of Juror Stacey Vetter in the courtroom. Mr. Vetter was " laughing, joking, handshaking, and embracing" with a former roommate of shooting victim Doug Ivens. 2nd Stage Tr. Vol. IV at 605. The roommate was sitting with Mr. Ivens's family. According to the prosecutor, the roommate knew that Mr. Vetter's wife was a juror. Defense counsel approached Mr. Vetter and asked him about his relationship with Mr. Ivens's family and friends. Mr. Vetter responded that he had met them about thirty minutes earlier. As soon as defense counsel turned away, Mr. Vetter " disappeared out of the courtroom," id. at 607, and an assistant attorney general watched him " scoot[ ] to the elevator," id. at 615.
When proceedings resumed, defense counsel informed the court of Mr. Vetter's presence and activity in the courtroom and asked to question the Vetters as to whether they had communicated about the case. The prosecutor conceded it was appropriate to question Mr. Vetter and the roommate, and the trial court agreed to allow it. The attorneys discovered, however, that both men had left the building immediately after defense counsel had spoken with Mr. Vetter. Defense counsel then suggested taking testimony from another individual who had observed Mr. Vetter in the courtroom— Deputy Boles, the sheriff's deputy responsible for escorting Mr. Stouffer during the trial.
Deputy Boles testified in camera and under oath that he had been present throughout the trial and had observed repeated non-verbal communication between Juror Vetter and her husband. The deputy saw Mr. Vetter repeatedly nod and wink at Juror Vetter throughout the penalty stage testimony and closing arguments. At one point during the prosecution's final closing argument, Juror Vetter looked to her husband with " a questioned look in her face." Id. at 608. Mr. Vetter responded by nodding and rolling his eyes.
The deputy attempted to testify that this and other exchanges between the Vetters occurred in response to particular statements by the prosecution that Deputy Boles described as " good points," and that Mr. Vetter expressed agreement with the prosecutor. Id. at 609, 612-13. The trial court ...