P. v. Burchett
Filed 4/17/13 P. v. Burchett CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
LORI ANN BURCHETT,
Defendant
and Appellant.
E053584
(Super.Ct.No.
RIF148998)
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT
The
petition for rehearing filed on April
2, 2013, is denied. The opinion filed in
this matter on March 19, 2013, is
Remove
footnote No. 1 on page 2.
On
page 14, preceding section 3, add:
Defendant
also contends the trial court not only had a sua sponte duty to give the second
optional paragraph in CALCRIM No. 3450, but also that the trial court had a sua
sponte duty to modify the instruction in order to explain the relationship
between defendant’s use of marijuana and her bipolar disorder. “‘A trial court has no sua sponte duty to
revise or improve upon an accurate statement of law without a request from
counsel [citation], and failure to request clarification of an otherwise correct
instruction forfeits the claim of error for purposes of appeal . . . .’ [Citation.]â€
(People v. Whalen (2013) 56
Cal.4th 1, 81-82.) The optional
paragraph in question accurately states the law. “If defendant believed the instruction
required elaboration or clarification, [s]he was obliged to request such
elaboration or clarification in the trial court.†(Id.
at p. 82.)
We
also reject defendant’s alternate claim that trial counsel was ineffective for
failing to request the modification. The
trial court instructed the jury that, “Addiction to or abuse of drugs or
intoxicants by itself does not
qualify as legal insanity.†(Italics
added.) Although not as clear as
defendant would have liked, the jury would nevertheless understand from the
emphasized language that defendant’s marijuana use could be considered, along
with evidence that defendant suffered a mental disease or defect, such as
bipolor disorder, that was not the result of her voluntary use of drugs, in
determining defendant’s sanity at the time of the crimes. Therefore, failure to request the
modification was not prejudicial. (
Cal.4th 468, 540-541, citing, among other cases, Strickland v.
[ineffective assistance of counsel requires both deficient performance and
resulting prejudice].)
These
modifications do not change the judgment.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting
P.J.
We concur:
MILLER
J.
CODRINGTON
J.
title="">[1]Filed 3/19/13 P. v. Burchett CA4/2 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties
from citing or relying on opinions not certified for publication or ordered
published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
LORI ANN BURCHETT,
Defendant
and Appellant.
E053584
(Super.Ct.No.
RIF148998)
OPINION
APPEAL from the Superior
Court of Riverside
County. Jean P. Leonard, Judge. Affirmed.
Tracy J. Dressner, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Melissa Mandel, Meredith S. White, and James D. Dutton,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Lori Ann Burchett (defendant) appeals from the judgment entered
after a jury found her guilty of the first degree murder of her 18-month-old
son, Garrison, and rejected her defense that she was legally insane at the time
of the killing. Defendant contends,
first, that she proved she was legally insane by a preponderance of the
evidence and, therefore, the jury erred in rejecting that defense. Next, defendant contends the trial court
incorrectly instructed the jury on the defense of insanity. Finally, defendant contends two jurors
engaged in misconduct when they communicated with each other about the case
during the sanity phase of the trial and, therefore, the trial court abused its
discretion when it declined to dismiss the jurors in question. We conclude no error occurred, and we will
affirm the judgment.
name="_ftnref2" title="">[2]
FACTS
The facts of the underlying crime
are undisputed. At trial, defendant
conceded that she had killed her son, Garrison, then 18 months old, on the
morning of February 23, 2009, by hitting the child on the head with a heavy
gold cup and then stabbing him several times in the abdomen with an arrow
defendant had removed from an art object hanging on the wall in her
bedroom. Defendant, who did not appear
in court before the jury during either the guilt or sanity phases of trial,
contended the killing was not premeditated.
Defendant also claimed that she was legally insane at the time she
killed her son. Both psychiatrists who
evaluated defendant testified at the sanity phase of the trial that at the time
she killed Garrison, defendant was in the throes of a psychotic break. We will recount that evidence in detail in
our discussion of defendant’s challenge to the jury’s verdict finding her sane.
During the guilt phase of the trial, defendant’s 15-year-old son, Nick,
he had stayed overnight with defendant (his mother), Greg, Sr., (defendant’s
current husband; hereafter Greg Sr.), and their two sons, Greg, Jr., (five
years old; hereafter Greg Jr.) and Garrison (18 months old). Nick had slept on the couch. When he awoke on the morning of February 23,
2009, defendant immediately accused Nick of smoking crack because she had
smelled it on his keys. Nick denied the
accusation and was upset because defendant had made that same accusation two
other times over the weekend. Greg Sr.,
a biology professor at Riverside Community College, had gone to work and had
taken Greg Jr. to day care by the time Nick woke up.
While defendant washed dishes, Nick played with Garrison. Defendant then sat down at the dining table
to do paperwork. When she stood up, Nick
told her that she had blood running down her leg. Defendant said she knew and asked Nick to
watch Garrison while she took a shower.
Although she had asked Nick to watch Garrison, defendant took the infant
with her into the bedroom.
Nick watched a movie. After
about 45 minutes, he leaned into defendant’s bedroom and asked if he could come
in. Defendant said no, she would be out
in a minute. Nick heard water running in
the shower and could tell from the sound of defendant’s voice that she was in
the bathroom. At some point, Nick heard
what sounded like a hit or a thump from a fall, but it was not significant
enough for him to investigate. Nick
asked defendant again whether he could come into the bedroom about 15 to 30
minutes after making the first request.
Again, defendant said she would be out in a minute. Nick still heard water running in the shower.
Nick got the feeling something was not right. He walked into defendant’s bedroom, this time
without asking permission. He saw blood
on the floor. Nick found Garrison on the
bed, his body completely covered by a blanket except for one foot. Nick lifted the blanket and saw Garrison’s
body, bloodied and bruised; the infant’s intestines were extruding from his
belly button. On the bed, there was a
gold cup that had dried blood on it.
There was blood on the bedsheets.
Nick started to scream and pounded on the bathroom door. He could hear the shower water running. Defendant ran out of the bathroom,
naked. Her face and lips were
bluish-purple. When Nick asked defendant
what had happened, she told him “everything is fine†and that she had “set him
free.†Defendant seemed angry at first
and then calmed down. She told Nick that
she had to pick one of his brothers or one of the three boys. Defendant got her cell phone, looked at it
for a minute, and then told Nick she would die if he did not leave her alone. Defendant told Nick not to talk to her; she
went back into the bathroom and closed the door. When Nick tried to talk with defendant, she
told him to leave her alone.
Not knowing what to do, and afraid to call the police, Nick waited
until his stepfather, Greg Sr., returned home that evening with Greg Jr. Nick did not tell Greg Sr. what had
happened. Greg Sr. knew that defendant
could be moody, and it was best to leave her alone at those times. That morning, defendant and Greg Sr. had a
disagreement about whether Garrison should go to day care: Greg Sr. wanted him to go, but defendant
wanted the child to stay home with her.
Greg Sr. gave in. Before he left
the house to go to work, he put Garrison in bed with defendant. Although he was surprised defendant had not
come out of the bedroom to greet Greg Jr., Greg Sr. made dinner and then left
around 9:00 p.m. to see a movie. When
Greg Sr. returned to the house around 11:00 p.m., he asked Nick what had
happened, because the boy looked very sad.
When Nick said he thought “Mom did something bad†and that he thought
she had hurt Garrison, Greg Sr. went into the bedroom where he found his infant
son’s body.
Greg Sr. banged on the bathroom door.
When defendant did not come out, he used a screwdriver to pick the door
lock. The bathroom was dark, and water
was running in the shower. When Greg Sr.
turned on a light, defendant’s hand hit the glass shower door from inside. Greg Sr. opened the shower door and found
defendant sitting on a bench under the running water. When he asked defendant what had happened,
she gave him an emotionless, cold stare.
Then with a very slow, methodical movement, defendant closed the shower
door. According to Greg Sr., defendant’s
stare was a “cold, dead, evil look.â€
Greg Sr. called 911. He also
called Nick’s father, who took Nick and Greg Jr. to his home.
When the police arrived, defendant was still in the shower, where she
had been for nearly nine hours.
According to Officer Adcox, when he opened the shower door, defendant
tried to close it and would not get out because she said she needed to be
alone. Officer Adcox described defendant
as having a “thousand yard†stare; “she just was looking right through me, like
no-one-was-home type thing.†After about
a minute, defendant complied with the officer’s directive that she get out of
the shower. When Officer Adcox handed
defendant a robe, she tried to grab his gun.
Officer Adcox trapped defendant’s hands and placed her in a modified
choke hold until she went limp and could be handcuffed. Defendant again tried to grab Officer Adcox’s
gun after she was in handcuffs. As the
police escorted her from the house and to a police car, defendant said that her
husband had nothing to do with Garrison’s death.
According to the forensic pathologist who conducted the autopsy,
Garrison’s skull was fractured on the left side of his head. The skin over the fractured area of the skull
was bruised and had an imprint consistent with the gold cup or chalice found
near the infant’s body. Garrison also
had multiple stab wounds in his abdomen.
The pathologist removed an arrowhead from one of those wounds. Nine puncture wounds on Garrison’s back
corresponded with the stab wounds on his abdomen. In the pathologist’s opinion, Garrison died as
a result of the combined injuries.
Additional facts will be recounted below as pertinent to our
resolution of the issues defendant raises in this appeal.
DISCUSSION
1.
SUFFICIENCY OF
THE EVIDENCE TO SUPPORT SANITY VERDICT
The
jury found defendant guilty of both first degree murder and assault on a child
resulting in death. In the sanity phase
of the trial, both expert witnesses agreed defendant was legally insane at the
time of the killing, but Dr. Oshrin, the psychiatrist retained by the trial
court, expressed the opinion that defendant’s psychosis was the result of her
chronic use of marijuana. Defendant’s
expert witness, Dr. Resnick, initially formed the opinion that defendant
suffered from a psychosis not otherwise specified that was marked by grandiose
and paranoid delusions. Shortly before
he testified at trial, Dr. Resnick added a diagnosis of bipolar disorder, which
he believed defendant had suffered from most of her adult life. The jury found defendant was sane at the time
of the killing, thus presumably relying on Dr. Oshrin’s opinion, or at the very
least the evidence regarding her marijuana use, because, as the trial court
instructed the jury, the defense of insanity is not available if the
defendant’s mental disease or defect or temporary mental condition is the
result of voluntary drug use. (See Pen.
Code, § 25.5; CALCRIM No. 3450.)
Defendant contends in this appeal that she proved by a preponderance
of the evidence that she was legally insane at the time she killed
Garrison. Defendant further contends,
because she had the burden of proof the standard that applies to review the
sufficiency of the evidence is whether, as a matter of law, the jury could not
reasonably have rejected the evidence of insanity. We do not share defendant’s view regarding
the standard of review.
Defendant bases her claim regarding the standard of review on
1050 (Skinner), in which the trier of
fact, in that case the court, rejected the defendant’s insanity defense and
found the defendant sane. The defendant
challenged that finding on appeal. In
addressing the issue our colleagues in Division 3 of the First District Court
of Appeal stated, “Because the burden was on the defense to show by a
preponderance of the evidence that [defendant] was insane, before we can
overturn the trier of fact’s finding to the contrary, we must find as a matter
of law that the [trier of fact] could not reasonably reject the evidence of
insanity.†(Id. at p. 1059.) To support
that statement, the Skinner court
cited People v. Drew (1978) 22 Cal.3d
333 (Drew), in which the prosecution
had not presented any evidence during the sanity trial but the jury
nevertheless found the defendant sane. (
of proof on the issue of sanity, the Supreme Court in Drew observed, “[I]f neither party presents credible evidence on
that issue, the jury must find [the defendant] sane. Thus the question on appeal is not so much
the substantiality of the evidence favoring the jury’s finding as whether the
evidence contrary to that finding is of such weight and character that the jury
could not reasonably reject it.†(
Contrary to the Skinner
court’s apparent view, the Supreme Court did not create a different test in
the evidence to support a sanity finding.
Instead, it explained how, when the prosecution does not present any
evidence on the issue of sanity, a jury nevertheless could find the defendant
sane: The jury could reasonably reject
the defendant’s evidence of insanity.
When, as in this case, both sides present evidence on the issue of
sanity, appellate review of the jury’s verdict or finding on that issue is
subject to the same standard applicable to the jury’s resolution of any issue
involving conflicting evidence—we review the record to determine whether the
verdict or finding is supported by any credible, substantial evidence. (See People
v. Belcher (1969) 269 Cal.App.2d 215, 219-220.)
In the sanity phase of this case, the prosecution presented evidence
to show defendant’s psychosis on the day she killed Garrison was the result of
her having voluntarily smoked marijuana on a regular basis for the better part
of the preceding year. Defendant’s
husband, Greg Sr., testified that defendant had obtained a medical marijuana
prescription in May 2008. After she
obtained the prescription, defendant’s marijuana use increased and by the time
she killed Garrison, defendant was smoking marijuana daily. She consumed, on average, an ounce of
marijuana every two to three days, an ounce being equivalent to eight
“joints.†Defendant ingested the drug,
smoked it directly, and inhaled the smoke through a vaporizer device. A toxicologist testified that blood collected
from defendant on February 25, 2009, at 6:00 p.m., nearly 41 hours after
defendant was taken into custody, tested positive for THC, the psychoactive
ingredient in marijuana.
Based on the evidence of defendant’s marijuana use, the jury could
find she was sane at the time of the killing because the defense of insanity is
not available to a person whose psychosis results from the voluntary use of
drugs. In short, we are unable to say in
this case that the prosecution’s evidence was insufficient as a matter of law
to support the jury’s sanity finding.
In reaching this conclusion, we acknowledge the apparent weaknesses in
the testimony of Dr. Oshrin. As
defendant points out, Dr. Oshrin spent only one hour 30 minutes with defendant,
whereas her expert witness, Dr. Resnick, conducted an evaluation of defendant
that lasted seven hours 40 minutes.
name="_ftnref4" title="">[4] Dr. Oshrin could not recall whether he had
read any of defendant’s medical records, although he had read the voluminous
police reports as well as the letters defendant had written. Dr. Resnick, on the other hand, had reviewed
defendant’s medical and mental history, beginning with the medical records of
Dr. Redder-Haga, a family physician, whom defendant consulted in November 2007
regarding knee pain as well as anxiety and anger issues, through the records of
Dr. Reantaso, a psychiatrist who treated defendant on February 25, 2009, when
she was transferred from the jail to a hospital for psychiatric treatment. Dr. Oshrin also acknowledged that marijuana
induced psychosis is uncommon, but he nevertheless saw one or two cases each
year.
The purported weaknesses do not compel a conclusion, as a matter of
law, that Dr. Oshrin’s testimony is not credible and, therefore, does not
support the jury’s sanity finding. The
jury was aware of the differences between Dr. Resnick and Dr. Oshrin, not only
in background, education, and experience, but also in the basis for their
respective opinions. Despite those
differences, the jury nevertheless could believe Dr. Oshrin’s opinion that
defendant suffered from a marijuana induced psychosis as a result of which the
insanity defense was not available to her.
For the reasons discussed, we must reject defendant’s first claim of
error in this appeal.
2.
INSTRUCTION
ON INSANITY DEFENSE
Defendant contends the trial court’s
instructions to the jury were incorrect, or at least incomplete, because the
trial court only gave the first paragraph of CALCRIM No. 3450, when it
should have given both paragraphs. Once
again, we disagree.
The trial court instructed the jury according to CALCRIM No. 3450 that
defendant has the burden to prove by a preponderance of the evidence, i.e.,
that it is more likely than not, that she was legally insane at the time she
committed the crimes. “The defendant was
legally insane if: [¶] 1.
When she committed the crimes she had a mental disease or defect,
and [¶]
2. Because of that disease or
defect, she did not know or understand the nature and quality of her act or did
not know or understand that her act was morally or legally wrong. [¶]
None of the following qualify as a mental disease or defect for purposes
of an insanity defense: Personality
disorder, adjustment disorder, seizure disorder, or an abnormality of
personality or character made apparent only by a series of criminal or
antisocial acts.â€
CALCRIM No. 3450 also includes two optional paragraphs that apply when
there is evidence of drug or alcohol use.
The trial court instructed the jury according to the first optional
paragraph as follows: “Special rules
apply to an insanity defense involving drugs or alcohol. Addiction to or abuse of drugs or intoxicants
by itself does not qualify as legal insanity.
This is true even if the intoxicants cause organic brain damage or a
settled mental disease or defect that lasts after the immediate effects of the intoxicants
have worn off. Likewise, a temporary
mental condition caused by the recent use of drugs or intoxicants is not legal
insanity.â€
The trial court did not give the second optional paragraph in CALCRIM
No. 3450, which states: “If the
defendant suffered from a settled mental disease or defect caused by the
long-term use of drugs or intoxicants, that settled mental disease or defect
combined with another mental disease or defect may qualify as legal
insanity. A settled mental disease or defect is one that remains after the
effect of the drugs or intoxicants has worn off.â€
The trial court did not instruct the
jury according to the second paragraph because defense counsel told the trial
court, when asked, that she was not requesting the second paragraph be included
in the jury instruction.
name="_ftnref5" title="">[5] On appeal, defendant now contends the trial
court should have given both paragraphs of the instruction and that failure to
do so was prejudicial.
Although we are inclined to agree with the Attorney General that if
error occurred it was invited, we will not discuss that issue further. In our view, the evidence did not support
giving the second quoted paragraph because there was no evidence that defendant
suffered from “a settled mental disease or defect caused by the long-term use
of drugs.†At trial, defendant presented
evidence to show that she was bipolar, a mental disease from which she claimed
to have suffered for many years before she was actually diagnosed in February
2009. There was no evidence presented at
trial to show that in addition to being bipolar defendant also had a settled
mental disease brought on by her use of marijuana. Because there was no evidence to support
instructing the jury according to the second bracketed paragraph, we must
reject defendant’s claim that the trial court erred in failing to include that
paragraph in its instruction to the jury.
For this same reason, i.e., the absence of evidence to support giving
the instruction, we must also reject defendant’s alternate assertion that she
was denied her state and federal constitutional right to the effective
assistance of counsel as a result of trial counsel objecting to the second
bracketed paragraph. In short, and
simply stated, the evidence did not warrant instructing the jury according to
the legal principle set out in the second bracketed paragraph in CALCRIM No.
3450.
3.
JUROR
MISCONDUCT CLAIM
Defendant contends the trial court
erred when it concluded that two jurors had not committed misconduct by
communicating with each other during trial.
We disagree.
The pertinent facts are not in dispute. When court recessed for the day on February
1, 2011, defense counsel reported that Jurors Nos. 10 and 11 had been
communicating with each other during testimony by looking at each other and
nodding their heads as if to say, “‘Told you so.’†It also looked as if Juror No. 10 had written
something on his notepad, which he then showed to Juror No. 11. Defense counsel had asked the bailiff to keep
an eye on the two jurors. The bailiff
confirmed what defense counsel had observed—on more than one occasion during
the testimony of the defense expert witness Juror No. 10 wrote on his pad,
showed what he had written to Juror No. 11, and then the two exchanged looks
and nodded their heads. The trial court,
with the concurrence of the attorneys, agreed to speak with the two jurors.
The next morning, the trial court first questioned defense
investigator Elia Joseph, who testified that although she had not seen them
interact the previous day, on another day during the testimony of Dr. Reantaso,
she twice saw Juror No. 10 write something after which he laughed or smiled,
and then pointed out what he had written to Juror No. 11. According to Investigator Joseph, the first
time Juror No. 11 seemed reluctant to look, but the second time she leaned over
and read what Juror No. 10 had written and then smiled and kind of concurred.
Defense counsel told the trial court that the previous day when the
prosecutor asked a question about the comment Nick had made regarding defendant
having to choose one of her children, Juror No. 10 “kind of lit up. And they looked at each other, nodded their
head[s] with just a smiling, as if a point had been made that they had
discussed. He [Juror No. 10] wrote on
his pad. Leaned it over to her [Juror
No. 11]. And she kind of smiled or had a
quizzical look on her face regarding whatever it was they were
discussing.†That is when defense
counsel asked the deputy to keep an eye on the two jurors.
The trial court then questioned Juror No. 11. The trial court explained it had come to the
court’s “attention that on possibly two occasions, one when Dr. Reantaso was
testifying and one occasion yesterday when Dr. Resnick was testifying, that you
and Juror No. 10 may have been communicating about the testimony. The information that I have is that when Dr.
Reantaso was testifying, [Juror] No. 10 wrote something down on his notebook
and showed it to you. And then the two
of you laughed about it or smiled, reacted.
And then yesterday when Dr. Resnick was testifying, sometime near the
end of the day, again Juror No. 10 wrote something down on his notebook. He also looked at you and gestured in a
way. The information I have is that the
gesture was sort of like, see, this is what we talked about or, see, this is
what we said. And it appeared that there
had been a point made based on maybe a discussion that you had during
deliberation. So I’m concerned about
that. And I wanted to ask you about your
side of this and what you saw.â€
When the trial court asked specifically whether Juror No. 11 and Juror
No. 10 had communicated at all during the testimony of Dr. Reantaso, Juror No.
11 answered, “Not—no.†Juror No. 11 also
denied that Juror No. 10 had shown her anything he had written in his notebook
or that they had communicated in any way about the testimony of Dr.
Reantaso. According to Juror No. 11,
“All he said was he was hot. But nothing
about a case.†When the trial court
asked about the previous day and whether she and Juror No. 10 were
communicating with each other during the testimony of Dr. Resnick “when there
was some discussion about parents not liking their kids,†Juror No. 11 said,
“No.†Juror No. 11 also denied that she
had communicated with Juror No. 10 about the facts of the case except when they
were in deliberations. When asked if
Juror No. 10 had written anything in his notebook and shown it to her, Juror
No. 11 said, “Nothing specific that I remember.â€
After conferring with counsel, the trial court told Juror No. 11 that
other people in the courtroom had reported that she and Juror No. 10 had been
communicating with each other by “gesturing, smiling, shaking your head.†Juror No. 11 answered, “Most of the time it’s
not—I don’t look at the notebooks. He
fidgets a lot with his legs because he has long legs. So I’m just looking at his legs. He put them in the cubbyhole. He takes them out. He’s tall so he gets uncomfortable. So that’s what I looked at, not his lap or
anything like that. So they—might have
been looking at something wrong, but has nothing to do with what he’s writing
but how he’s moving his legs around in the cubbyholes and under the
cubbyholes.†Before letting Juror No. 11
go, the trial court asked if she could continue to be fair and impartial in the
case. Juror No. 11 said, “Yes, I think I
can.â€
The trial court then questioned Juror No. 10, who was the foreperson
in the guilt phase of the trial. As she
had with Juror No. 11, the trial court explained to Juror No. 10 it had come to
the court’s attention that during Dr. Reantaso’s testimony on Monday, and then
again the previous day during questioning of Dr. Resnick that “you and Juror
No. 11 may have been communicating or gesturing regarding the testimony. Specifically yesterday afternoon there was some
testimony regarding Nick and Nick’s statement during his testimony that
[defendant]—his mom told him she had to pick one of them. And the information that I have from people
in the courtroom was that at that point, you may have been writing something down
in your notebook and showing it to No. 11 or communicating about the
testimony.†The trial court then asked
whether Juror No. 10 remembered “having any kind of communication with [Juror]
No. 11†during the testimony of Dr. Reantaso “regarding that testimony, either
gesturing to her or smiling to her, or writing anything down at all?†Juror No. 10 answered, “Well, yeah,
absolutely, I write. If you look at my
flip chart, there’s a lot of notes in there.â€
Juror No. 10 then said “[N]o, there was not any gesturing between us or,
you know—I mean, people are reading what I’m writing, I’m not intentionally
showing them what I want them to hear. I
write my own notes. I have my own way of
taking notes.†The trial court then
expressly asked whether Juror No. 10 was communicating in any way with Juror
No. 11 during Dr. Reantaso’s testimony.
Juror No. 10 said, “No.â€
The trial court asked Juror No. 10 whether during the testimony of Dr.
Resnick, he recalled “having any kind of communication, whether verbally or
physically[,] with [Juror] No. 11,†and when Juror No. 10 asked the trial court
to explain, the court asked, “Did you show her something you’d written down in
your book?†Juror No. 10 answered, “No,
I don’t make it—no. I don’t show—I mean,
like I said, it’s sitting in my lap. I
write stuff down. If there’s something
that strikes me, then—I don’t know how [to] put it. If something strikes me—I don’t write—I guess
the way my body language is, I may get kind of like, whoa, yeah there is a
point. But I don’t make it a point to
show it to anybody, like, hey, look.
This is a point you should see.â€
The trial court then asked whether he was uncomfortable in the chair
because of his long legs, and Juror No. 10 explained that his knees get
cramped, that he is always moving his chair around and bumping Juror No.
11. After first indicating she would try
to get him a different place to sit where he could stretch his legs, the trial
court asked Juror No. 10 if there was any reason he could not be fair and
impartial. Juror No. 10 said, “No.â€
The trial court then questioned Dr. Vasilis Pozios, a colleague of Dr.
Resnick, who had been in court to observe the trial in general and specifically
to observe Dr. Resnick’s testimony. Dr.
Pozios testified that he had been taking detailed notes of everything going on
during the trial and he “couldn’t help but notice that the two jurors in
question communicated to each other on at least three occasions . . .
both nonverbally and once there was a verbal exchange between the two of them.†According to Dr. Pozios, the first nonverbal
exchange occurred on Monday during the direct testimony of Dr. Resnick. Dr. Pozios made a notation that Jurors
Nos. 10 and 11 “looked at each other and smirked when the topic of killing one
son, not two, was discussed.†The second
nonverbal exchange took place during the second day of Dr. Resnick’s direct
testimony. “The two jurors in question
looked at each other when the topic of the defendant being struck by a
flashlight was discussed.†When asked to
describe how they looked at each other, Dr. Pozios stated, according to
his notes, that Juror No. 11 had a look of disgust on her face and then the two
jurors looked at each other. Dr. Pozios
noted that during cross-examination of Dr. Resnick, Juror No. 10 and Juror No.
11 looked at each other three times—the first time during the topic of the
review of other doctors’ records; next, Jurors Nos. 10 and 11 looked at each
other in disbelief after Dr. Resnick testified that he based his opinion on the
observations of a nurse practitioner who had treated defendant, but not on her
opinion that defendant is bipolar; and then yesterday afternoon when Dr.
Resnick was “talking about the analogy of Abraham killing his sons on an order
from God but having feelings about killing his sons. [Dr. Pozios had] noted that the two jurors
looked at each other during that explanation.â€
During the testimony of defendant’s 15-year-old son regarding the number
of sons defendant was instructed to kill, Dr. Pozios noticed “some strong
facial expressions between the jurors and . . . also a verbal
communication, looked like one or two words from [Juror No. 10 to Juror No.
11].â€
Finally, the trial court questioned Juror No. 12 to see whether that
juror had noticed any communication, mostly nonverbal like gesturing, smirking,
laughing, going on between Juror No. 10 and Juror No. 11. Juror No. 12 had not seen anything like that,
even though, as the juror put it, “I’m kind of facing this way,†presumably
meaning that Juror No. 12 faced toward the two jurors in question. Juror No. 12 had only seen “maybe a bump of a
seat and an, ‘Oh, I’m sorry,’ but . . . no smirking or any of that
. . . .â€
After excusing Juror No. 12, the trial court acknowledged that there
had been “some sort of interaction between†Jurors Nos. 10 and 11. But the trial court could not determine
whether the communication was improper or “very innocent,†such as regarding
Juror No. 10 being uncomfortable.
Because Juror No. 12, whom the trial court viewed as the most helpful
witness due to proximity, had not heard or seen anything, the trial court found
that Juror No. 10 and Juror No. 11 had not engaged in misconduct, and even if
they had, there had been no showing of actual prejudice. Therefore, the trial court denied defendant’s
motion to remove Juror No. 10 and Juror No. 11.
Instead, the trial court again admonished the entire jury not to
communicate about the case with each other until the close of evidence and they
were in deliberation.
Defendant contends the trial court abused its discretion in finding
that Juror No. 10 and Juror No. 11 had not engaged in misconduct because, at
the very least, the two jurors had been dishonest when they denied they had
communicated with each other during trial.
Defendant points out, and the trial court acknowledged, that four people
had seen the two jurors communicate nonverbally with each other, and three of
the four testified that they had seen Juror No. 10 write something in his
notepad, which he then showed to Juror No. 11.
Defendant contends the jurors at the very least engaged in misconduct by
being untruthful, and such juror misconduct gives rise to a rebuttable
presumption of prejudice. We do not
share defendant’s view.
Under Penal Code “section 1089 the trial court may discharge a juror
who ‘becomes ill, or upon other good cause shown to the court is found to be
unable to perform his [or her] duty,’ and once put on notice that good cause to
discharge a juror may exist, the court has a duty to make whatever inquiry
reasonably is necessary to determine whether the juror should be
discharged. [Citation.]†(People
v. Bradford (1997) 15 Cal.4th 1229, 1351.)
“[T]o establish juror misconduct, the facts must establish ‘“an
inability to perform the functions of a juror, and that inability must appear
in the record as a demonstrable reality.â€â€™
[Citations.]†(
“The decision whether to investigate the possibility of juror bias,
incompetence, or misconduct, as well as the ultimate decision whether to retain
or discharge a juror, rests within the sound discretion of the trial
court. [Citation.] If any substantial evidence exists to support
the trial court’s exercise of its discretion pursuant to [Penal Code] section
1089, the court’s action will be upheld on appeal. [Citation.]â€
(Ibid.)
Defendant did not base her misconduct claim in the trial court on the
fact that the jurors had been dishonest in their responses. As a result, the trial court did not address
that issue. The record suggests that
neither Juror No. 10 nor Juror No. 11 was particularly forthcoming. However, they each answered the specific
questions asked of them, with the possible exception of whether they had
communicated with each other in any manner during the trial. It is apparent from the record that the two
jurors did communicate, but the subject of their communication is not
clear. The jurors could reasonably have
construed the trial court’s question as being limited to communication about
the case. Because defendant did not
raise the issue of the jurors’ honesty, the possibility that they had
misunderstood the question was not developed in the trial court. Consequently, we are unable to determine
whether the jurors lied, and thereby committed misconduct, or simply
misunderstood the trial court’s question.
Because the record supports the trial court’s finding that the jurors
had not communicated with each other about the case, we must affirm the trial
court’s finding that the two jurors in question had not committed misconduct.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
McKINSTER
Acting
P.J.
We concur:
MILLER
J.
CODRINGTON
J.
name="_ftn1" title="">[1]
name="_ftn2" title=""> [2] Defendant also filed a petition for writ of
habeas corpus in this court on August 10, 2012.
(Case No. E055510.) The petition
will be decided by separate order.
