On Appeal from the United States District Court for the District of Delaware (D.C. Civil Action No. 91-cv--00203)
Before: BECKER, ROTH, Circuit Judges and SHADUR *fn1, District Judge
Carmelo Claudio and Enrique Maymi appeal the district court's denial of their consolidated petition for habeas corpus relief. Appellants were convicted in Delaware Superior Court of first degree robbery, four counts of possession of a deadly weapon during the commission of a felony, two counts of first degree conspiracy, and one count each of first degree murder and first degree attempted murder. Claudio v. State, 585 A.2d 1278, 1279 (Del. Supr. 1991). Appellants claim that the state trial court erred by: (1) substituting an alternate juror for an ill juror without instructing the jury to discard previous deliberations and begin anew, (2) failing to issue a curative instruction despite allegedly inflammatory remarks by the prosecutor after physical evidence was excluded, and (3) instructing the jury on accomplice liability in a manner that could lead a reasonable juror to believe that petitioners bore the burden of proof on that issue.
Jurisdiction in the district court was invoked pursuant to 28 U.S.C. Section(s) 2254(a) after appellants exhausted their state court remedies. Claudio v. Redman, Nos. 91-203-LON, 91-209-LON, slip op. at 2 (D. Del. Aug. 23, 1994) (consolidated petitions of Claudio and Maymi). This appeal is properly before us on a certificate of probable cause issued pursuant to 28 U.S.C. Section(s) 2253.
We will affirm the district court's denial of habeas corpus relief on all three grounds, the second and third requiring no further discussion. Because the Delaware trial court's substitution of an alternate juror after jury deliberations had already begun presents a question of first impression in this circuit, we further elaborate our holding on this issue.
At the conclusion of appellants' state trial, the trial judge read his instructions to the jury and three alternate jurors. Claudio v. State, 585 A.2d at 1283. The jury began its deliberations on December 1, 1987, at approximately 10:30 a.m. and deliberated until approximately 5:00 p.m. During this first day of deliberations, the jury requested to view the defendant, Claudio. The trial judge agreed, and the twelve jurors and three alternates were brought back into the courtroom to view Claudio. The jury failed to reach a verdict during the first day of deliberation and was sequestered for the night. The alternate jurors were separately sequestered. *fn2 Id.
During the night, one of the regular jurors became ill. The next morning, the trial judge excused the ill juror and replaced that juror with one of the alternates. The judge asked the three alternates if they had discussed the case amongst themselves during their sequestration and inquired whether they had read anything about the case. Id. at 1283 n.8. All three jurors responded in the negative. The trial judge then impaneled the first alternate. Defense counsel moved for a mistrial, but that motion was denied. Id. at 1283.
After impaneling the new juror, the trial judge gave special instructions to the reconstituted jury and to the alternate juror. The court instructed the original eleven jurors to "take whatever time is necessary, even though it may be repetitious and time consuming, to completely update [the alternate juror] as to the stage of deliberations you as a group have reached." Id. at 1284 n.9. The court then specifically directed the alternate juror to take as much time as necessary to familiarize herself with the evidence and with the thinking of the other jurors and to move forward only when she felt that she was at no relative disadvantage with regard to her understanding of the case. *fn3
The reconstituted jury deliberated from approximately 10:01 a.m. to 5:00 p.m. on December 2. At 11:17 a.m. the jurors sent out a note asking if the surviving victim had been visited in the hospital by a Mrs. Guzman. The note was answered an hour later. On December 3 the jury reconvened at approximately 10:00 a.m. After a break for lunch at noon, the jury reached a verdict on all charges at approximately 2:00 p.m. on December 3. Thus the original jury deliberated for about six and one-half hours, and the reconstituted jury deliberated for approximately nine and one-half hours. Id. at 1284. The jury returned the guilty verdicts noted above. Appellants were sentenced to life imprisonment without possibility of parole for first degree murder, life imprisonment with possibility of parole for attempted murder, and an additional forty-five years for other offenses.
On direct appeal, the Supreme Court of Delaware ruled that the trial court violated Delaware Superior Court Criminal Rule 24(c), which permits the replacement of regular jurors by alternates prior to deliberation only. *fn4 Id. at 1284-85. It also concluded that the substitution of the alternate juror violated the United States and Delaware constitutions. Id. at 1289, 1301. The court held, however, that these were harmless errors. Id. at 1289, 1304. The district court properly declined to review the state law issues involving Rule 24(c) and the Delaware Constitution, Claudio v. ...