P. v. Cogsell
Filed 8/12/10 P. v. Cogsell CA4/1
Opinion following remand by Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
HENRY IVAN COGSWELL,
Defendant and Appellant.
D049038
(Super. Ct.
No. SCN201693)
APPEAL from
a judgment of the Superior Court
of San Diego
County, John S. Einhorn, Judge. Affirmed.
This appeal
comes to us on remand from the Supreme Court, which reversed our judgment.
Henry Ivan
Cogswell was found guilty of three counts of forcible rape, one count of rape
by a foreign object and one count of forcible
oral copulation. It was found true
Cogswell was previously convicted of forcible rape within the meaning of Penal
Code[1] section
667.61, subdivisions (a), (c), (d), had served a prison term within the meaning
of section 667.5, subdivision (a), was previously convicted on a felony within
the meaning of section 667.6, subdivision (a), and was previously convicted of
a serious felony within the meaning of sections 667, subdivision (a)(1), and
667, subdivisions (b) through (i).
Cogswell
was sentenced to a term of 105 years in prison.
He appealed, arguing the trial court erred in allowing the prior
testimony of an absent witness to be admitted in evidence, in admitting
evidence of his prior sexual assaults,
and in finding the prosecution had overcome the presumption of prejudice that
arose because of juror misconduct during the course of the trial. We found that the trial court erred in
allowing prior testimony of the absent witness and reversed the trial court
judgment. For the guidance of the
parties in the case of any retrial on remand, we also found that the trial
court properly admitted evidence of Cogswell's prior sexual assaults.
The People
filed a petition for review, which was granted.
On review, the Supreme Court reversed our judgment and found the trial
court properly admitted the prior testimony of the absent witness. (People
v. Cogswell (2010) 48 Cal.4th 467, 479.)
The Supreme Court remanded the cause to us for consideration of the
remaining issues raised by Cogswell. (
As we
explain more fully below, we find, as we did initially, that the trial court
properly admitted evidence of prior sexual assaults. We also find no error in the trial court's
finding that the prosecution overcame the presumption of prejudice arising from
evidence of juror misconduct.
FACTS[2]
A. Prosecution
Case
1. Charged
Offenses
On the afternoon of June 9, 2004, Lorene B., her sister
and their children went to an apartment in San Marcos
to see Lorene's friend Henrieta Cogswell (Henrieta). Henry Cogswell is Henrieta's brother. He also lived at the apartment. He told Lorene that Henrieta was not
home. Lorene and the others returned to
the home of Lorene's sister in Riverside.
Lorene met
Cogswell on several occasions. Crystal
G., the mother of Cogswell's two children, was Lorene's best friend. Lorene was aware Crystal
and Cogswell broke up. Cogswell, Lorene,
Crystal and Henrieta were deaf and communicated by sign language.
On the
evening of June 9, Lorene, by means of instant messages on her computer,
communicated with someone she believed was Henrieta. In fact, the messages were sent by
Cogswell. Later, Lorene also exchanged
instant messages understanding she was communicating with Cogswell. Cogswell begged Lorene to see him about a
very important matter concerning their children.
Lorene,
believing the matter was serious, left Riverside
and drove to San Marcos. She arrived at around midnight. Lorene
parked her car in a lot at Cogswell's apartment and got out. Cogswell approached her. Lorene asked if Henrieta was there. Cogswell stated she was asleep. Cogswell kissed Lorene on the mouth. When Lorene asked why he kissed her, Cogswell
pushed her against the car. Lorene asked
Cogswell if he was drunk and asked why he was treating her that way.
Cogswell
told Lorene they needed to talk and asked her to get into the car. Lorene got into the driver's seat. Cogswell sat in the passenger seat. Lorene asked Cogswell why he kissed her and
told him he should not have done so.
When Lorene asked Cogswell what he wanted to talk about, he climbed on
top of her and reclined the driver's seat.
As Lorene resisted, Cogswell sexually assaulted her. Eventually, Cogswell returned to the
passenger seat, removed his clothes and told Lorene to undress. Afraid of Cogswell, Lorene removed her pants.
Cogswell grabbed Lorene and placed her in a straddling position above him. Cogswell inserted his penis and finger into
her vagina.
Lorene was
able to climb into the back seat. Within
a few moments Cogswell followed. Lorene
told him she wanted to go home. Cogswell
told her she could "suck [his] penis." She did not want to. However, Lorene orally copulated Cogswell
believing if she did he would let her go.
When Lorene thought Cogswell fell asleep, she tried to get her clothes
and leave. Cogswell grabbed her, pinned
her down and raped her again.
Lorene
passed out. The next morning she awoke
still in the car with Cogswell.
Eventually, the two dressed.
Cogswell drove the car to a bank and to a gas station. Cogswell then drove back to his apartment
complex. He told Lorene not to tell
anyone what happened. Cogswell climbed
into the back seat and Lorene got out of the car. Cogswell ordered Lorene to get back in the
car. Afraid of Cogswell, she got
in. Cogswell raped her again. Cogswell got out of the car and Lorene drove
back to Riverside.
A few days
later, Lorene e-mailed Crystal
telling her she wanted to meet because someone raped her. Crystal
guessed the attacker was Cogswell because he mentioned the rape a few days
before. Lorene told Crystal
it was difficult for her to report the rape because both she and Cogswell
belonged to the small deaf community and because she knew Cogswell's
family. Crystal
suggested she, Cogswell and Lorene discuss the matter in an electronic chat
room. They did so. Lorene, unsatisfied with the conversation,
reported the sexual assault to the police.
On June 13, 2004, Sheriff's Detective
David Schaller contacted Cogswell. The
detective noticed Cogswell had a large bruise on his leg and scratches on his
face, head, arms, hand, legs and back. Crystal
told Lorene that Cogswell was abusive to her.
However, Crystal did not
think she ever told Lorene that Cogswell raped her.
2. Prior
Uncharged Offenses
In 1996 Crystal
met Cogswell at school in New York
and they began a sexual relationship. A few
weeks after the relationship began, Cogswell physically assaulted her. Crystal
reported the assault to school authorities, and in November 1996 Cogswell was
expelled. Crystal
moved with Cogswell to his parent's home in New York. His violence toward her increased. Cogswell's assaultive behavior was reported
to the police. Crystal
first moved to Texas, and in
February 1997 she moved to San Diego.
In February
1997 Crystal called Cogswell and
told him she was pregnant with his child.
Crystal agreed to see
Cogswell. Because she was afraid of him,
she asked him to bring someone with him.
On February 6 or 7, 1997, Cogswell came to Crystal's
apartment with his cousin Roy. Cogswell
told Crystal she had the choice of
having sex with him or being abused. Crystal
asked Cogswell to go for a walk hoping he would cool off. Cogswell agreed. During the walk, Cogswell demanded Crystal
have sex with him and told her to take off her pants. Afraid he would hurt her if she resisted, Crystal
removed her pants and Cogswell raped her.
Crystal and
Cogswell went with Roy to Roy's
parent's house in Riverside. The next day, Crystal and Cogswell drove back
to San Diego. During the drive, Cogswell stopped in a
parking lot, hit Crystal in the
head and ordered her to have sex with him.
Crystal removed her pants
and Cogswell raped her.
On arriving
in San Diego, Crystal
could not get into her apartment so she and Cogswell remained in the car. While in the car, Cogswell again ordered Crystal
to have sex with him. Fearful of
Cogswell, she orally copulated him. She
then removed her clothes. Cogswell raped
her. Later that day, Cogswell raped Crystal
again.
Crystal
reported the rapes to her prenatal counselor.
The counselor reported the crimes to the police and Cogswell was
arrested. Cogswell called Crystal
from jail and asked her to say she had not been raped but only sexually
harassed. At Cogswell's trial on those
charges, Crystal recanted the claim
of rape and testified Cogswell sexually harassed her. Cogswell, nonetheless, was convicted of
rape. Crystal
later, at a habeas corpus proceeding, also falsely denied Cogswell raped
her. Crystal
stated she lied because she did not want Cogswell to go to prison for six years
and was worried about her relationship with others in the deaf community.
Crystal
continued to see Cogswell after he was released from prison and had a second
child with him. Crystal
admitted having falsely accused her stepfather of raping her.
B. Defense
Case
A social worker, Diana Spencer,
interviewed Lorene. During that
interview, Lorene told Spencer she was arrested for "park[ing] in the
wrong spot." Spencer checked the
arrest report and learned Lorene was arrested for driving under the
influence. Spencer concluded Lorene did
not tell her the truth and was attempting to minimize the incident.
Julio
Medina, the father of Lorene's son, testified Lorene falsely accused him of
sexually molesting their then-six or seven-year-old son.
Henrieta,
Cogswell's sister, testified that on June
10 to 13, 2004, Cogswell did not have large bruises, scratches or
marks on his body.
DISCUSSION
A. Unavailable
Witness
As we have indicated, Cogswell's
contention that the trial court erred in admitting prosecutrix Lorene's
preliminary hearing testimony has been resolved against him by the Supreme
Court. (People v. Cogswell, supra, 48 Cal.4th at pp. 479-480.)
B. Evidence
of Prior Sexual Offenses[3]
Cogswell argues the trial court
erred when it admitted pursuant to Evidence Code section 1108, subdivision (a),
the testimony of Crystal that
Cogswell sexually assaulted her.
Cogswell argues the admission of such evidence to show a propensity to
commit the charged offenses denied him his right
to due process. He argues in any
case the trial court erred in admitting the evidence over his objection that
the evidence was more prejudicial than probative.
1. Background
Prior to trial, the prosecution
moved, pursuant to Evidence Code section 1108, for the admission of evidence of
Cogswell's sexual offenses against Crystal. It noted that in 1996 Cogswell was charged
with multiple counts of assault and sexual assault and that in 1997 he pled
guilty to one count of forcible rape.
Sentenced to six years in prison, Cogswell repeatedly contacted Crystal
and she eventually recanted her accusations of assault and rape. Petitions for habeas corpus followed but were
denied. When released, Cogswell was
required to register as a sex offender pursuant to section 290. In 2003 he was convicted of a failure to
register. As a condition of parole, he
was ordered not to have contact with Crystal. In 2004 the two had another child.
Cogswell
opposed the prosecution's motion to admit evidence of the prior sexual
offenses. He noted that in 1999 Crystal
submitted a declaration and testified at a hearing on Cogswell's habeas corpus
declaration that she had falsely accused Cogswell of rape. Cogswell also noted that before Lorene made
her accusation against him, she and Crystal were best friends. Cogswell argued admitting evidence of
Cogswell's prior sexual offenses would result in undue prejudice to the defense
and confuse and mislead the jury. He
requested the evidence be excluded pursuant to Evidence Code section 352.
A hearing
was held on the motion. Crystal
testified and reviewed the history of her relationship with Cogswell. She stated that from the beginning of the
relationship Cogswell abused and sexually assaulted her. She stated he sexually assaulted her on
several occasions in 1997 in San Diego,
and she reported the crimes to the police.
She was aware Cogswell was charged with those offenses and that he pled
guilty to one count of rape. Crystal
admitted recanting under oath her claims of rape but stated Cogswell did rape
her. She stated she was afraid when
Cogswell was released from prison he would assault her. She also stated the deaf community to which
both she and Cogswell belonged was small, and she believed her life and lives
of her two sons would be easier if she recanted her allegations. Crystal
stated Cogswell raped her.
The trial
court granted the prosecution's motion and admitted Crystal's
testimony.
2. Discussion
Evidence Code section 1108,
subdivision (a), provides that when a defendant is accused of a sexual offense,
evidence of that defendant's commission of another sexual offense is admissible
unless the evidence is made inadmissible under the provisions of Evidence Code
section 352. Cogswell contends the
admission of such evidence to prove a predisposition to commit sexual offenses
denies him due process. It does
not. (People v. Falsetta (1999) 21 Cal.4th 903, 911-925;
Cal.App.4th 572, 578-579.)
Cogswell
further argues that whatever the constitutional validity of Evidence Code section
1108, subdivision (a), the trial court abused its discretion when it denied the
motion to exclude the evidence as more prejudicial than probative within the
meaning of Evidence Code section 352.
In
admitting evidence of prior sexual offenses pursuant to Evidence Code section
1108, subdivision (a), the trial court considers the nature, relevance and
remoteness of the uncharged offense, the degree of certainty that the prior
offense was committed, the likelihood admission of the offense will confuse, mislead
or distract the jury from its primary inquiry, the burden of the defendant in
defending against the uncharged offense, and the availability of less
prejudicial alternatives to outright admission, such as excluding irrelevant
and inflammatory details. (
The trial
court has broad discretion in determining whether the probative value of
evidence outweighs any potential it may have to prejudice a party or to confuse
or mislead the jury. It is only when the
exercise of that discretion is "arbitrary, capricious or patently
absurd" that we reverse the trial court's decision to admit the
evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
The trial
court here did not abuse its discretion in admitting Crystal's
testimony. The sexual offenses committed
against Crystal were reasonably
similar to and no more serious than those charged here. While the crimes against Crystal
were committed in 1999 and the charged crimes occurred in 2004, for much of that
interval Cogswell was in prison. The
lack of additional sexual offenses in that period says nothing about his
predisposition to commit such crimes.
While it is true Crystal
recanted her accusations against Cogswell, Cogswell pled guilty to a sexual offense
against Crystal and a jury could
reasonably decide whether he committed the crime to which he pled guilty. The evidence concerning Cogswell's conviction
of raping Crystal did not create a burden on the defense greater than that which
arises in defending against any claim of a relevant uncharged act. The trial court did not abuse its discretion
in admitting Crystal's testimony.
C. Jury
Misconduct
1. Background
The prosecution called David
Schaller, a detective employed by the San Diego County Sheriff's
Department. Schaller testified he
interviewed Cogswell on the day Cogswell was arrested and observed a number of
bruises and scratches on Cogswell's arms, legs, back and head. Schaller further identified a number of
photographs of Cogswell taken on the day of his arrest which the show the
scratches and bruises Schaller observed.
On cross-examination, Schaller conceded that when the photographs of
Cogswell were being taken, Cogswell was calm, polite and cooperative.
Following
Detective Schaller's relatively brief testimony, the trial court excused the
jurors for the remainder of that day and directed them to return the following
morning. There is no dispute among the
parties that while Detective Schaller was in the hallway outside the courtroom
near an elevator, juror No. 8, in the presence of juror No. 9, started a
conversation with Detective Schaller.
However, there is a great deal of conflict in the record with respect to
precisely what transpired between juror No. 8 and Detective Schaller.
a. Juror
No. 8
In testimony he gave to the
trial court during a series of hearings held on Cogswell's motion for a new
trial, juror No. 8 stated that he greeted the detective and said, "It's a
beautiful day. We're going home early. I get to wash my car." According to juror No. 8, Detective Schaller
responded: "I wish I could say
something to you too" and then they both got in the elevator. According to juror No. 8, he and Detective
Schaller did not say anything further to each other. A few days later when the jury began
deliberations, juror No. 8 told the foreman about his exchange with the
detective and the foreman told him the exchange had no bearing on the case and
not to worry about it.
b. Detective
Schaller
Detective Schaller was also
examined by the trial court with respect to his contact with juror No. 8. Detective Schaller recalled that juror No. 8
made some casual remark about the weather and that "[v]ery early into this
contact I explained to him that I didn't want him to perceive that I was being
rude. I explained to him[.] Listen.
You understand I can't talk to you.
I wish I could but I can't."
According to Detective Schaller, juror No. 8 "immediately said that
he understood that. And he was, you know
-- he seemed okay. I was trying to, you
know, be cordial with the guy but let him know at the same time that I couldn't
talk to him. [¶] And as soon as I did
tell him that, he -- he, you know, cut it off right there." Detective Schaller recalled that after he was
done talking with juror No. 8, he overheard juror No. 8 tell another juror who
was present that he was confused about the case. Detective Schaller denied telling juror No. 8
that he wished could tell him more about the case or that the lawyers had cut
him short.
Detective Schaller
testified that he had been a witness at other trials and he understood that he
was not supposed to have any contact with jurors and he further understood that
in the event such contact occurred he had a duty to report the contact to the
court. He testified that he failed to
report his contact with juror No. 8 to the court because he assumed the contact
was not very significant.
c. Juror
No. 9
Juror No. 9 provided a
handwritten affidavit in support of Cogswell's motion for a new trial. In the affidavit, juror No. 9 provided a
markedly different version of juror No. 8's conversation with Detective
Schaller than the versions provided by juror No. 8 and Detective Schaller. According to juror No. 9's affidavit, juror
No. 8 told Detective Schaller he was confused about the case and Detective
Schaller said that he wished he could sit down with the jurors and tell them
more about the case. Juror No. 9 got the
impression that Detective Schaller had negative things to say about Cogswell.
According
to juror No. 9's affidavit, juror No. 8 told other jurors about what Detective
Schaller had told him. In his affidavit,
juror No. 9 stated that the other jurors decided not to tell the judge about
the incident. According to juror No. 9's
affidavit, at the time juror No. 8 brought up his contact with Detective
Schaller with the other jurors, he was inclined to vote not guilty. However, juror No. 9 believed that the
detective's comments influenced his decision to vote guilty.
Juror No.
9's affidavit was executed on March
29, 2006. More than two
months later, on June 2, 2006,
juror No. 9 was examined by the trial court and in a number of respects he
embellished what he stated in his affidavit.
Unlike his affidavit, at the hearing juror No. 9 stated the contact
began with a general statement about the weather. According to juror No. 9's testimony, he
remembered that just as he was about to press the elevator button, juror No. 8
told Detective Schaller that he was "confused about everything that was
going on in the case." According to juror No. 9's testimony, juror No.8
"expressed himself that he was really confused about all the information
that we were receiving and that -- [he] didn't know what to think and make out
of it." Juror No. 9's recollection
of hitting the elevator button just as juror No. 8 started telling the
detective about his confusion and the extent of juror No. 8's confusion did not
appear in juror No. 9's earlier handwritten affidavit. When asked about the fact that his testimony
was more detailed than his earlier handwritten note, juror No. 9 told the trial
court that his later testimony was a more accurate reflection of his memory.
After juror
No. 9 heard the conversation between juror No. 8 and the detective, he made no
attempt to contact the court and advise the court about what happened. He explained that he failed to do so because
he "didn't know how to go about" telling the court and because
"I thought no other comment was going to be made about it."
Juror No. 9
testified that when jury deliberations began, juror No. 8 brought up his
contact with Detective Schaller.
However, juror No. 9's description of his reaction to that development
is somewhat at odds with his description of the contact. According to juror No. 9, when juror No. 8
mentioned his contact with Detective Schaller to the other jurors, juror
No. was "kind of surprised he had
mentioned it, and I was hoping that it wouldn't have come out. And I just said, you know, I don't know what
you're talking about at that time."
According to juror No. 9, "the jury foreman just kind of played it
off and said, you know . . . [s]omething to the point of it
doesn't matter." According to juror
No. 9, juror No. 8's contact with Detective Schaller did not come up again
during deliberations.
Juror No. 9
testified he did not thereafter tell the court about the comment because
"[w]e were asked not -- we weren't going to -- the jury foreman didn't
think he needed to be informed -- anybody needed to be informed about it. And everybody agreed to that."
d. Juror
No. 10
Juror No. 10 provided an
affidavit to Cogswell in support of Cogswell's motion for a new trial. In his affidavit, juror No. 10 stated that at
the beginning of deliberations, another juror stated that Detective Schaller
had told him "I wish I could have said more." Juror No. 10 responded by stating that maybe
the detective was annoyed that he came to court and his testimony only lasted
two minutes. After the jury had reached
a verdict, juror No. 10 asked the foreman whether they should mention the
detective's comment to the court and the foreman declined to do so because the
comment had not influenced their deliberations.
When called
as a witness, juror No. 10 added to his account that when he told juror No. 8
he thought the detective was just angry because he had been called to testify
but only spoke a short time, a number of other jurors nodded in agreement and
one juror in particular nodded as if he had witnessed the exchange.
The trial
court denied Cogswell's motion for new trial.
The trial court stated: "The
contact between 8 and the detective at the elevator is misconduct. The extent of the contact is certainly not as
extensive as that expressed by juror number 9 in his testimony during this
motion, and number 10 convinces me that . . . the acts
which constitute the misconduct were brought to the attention at the outset by
a juror and handled appropriately because the conduct did not again become the
subject of discussion throughout the deliberations." Given its view of the evidence, the trial
court concluded: "[T]aking it in
the context of the entirety of this case and the entirety of this motion and
the entirety of the testimony, it doesn't rise to the level that is affected
the outcome of the verdict. It was of a
more minimal level than evidence that would justify the granting of the new
trial."
2. Discussion
"We review independently
the trial court's denial of a new trial motion based on alleged juror
misconduct. [Citation.] However, we will ' "accept the trial
court's credibility determinations and findings on questions of historical fact
if supported by substantial evidence." '
[Citation.]" (
396-397.) Our independent review of the
record, including in particular the trial court's factual findings, convinces
us the trial court acted properly in denying Cogswell's motion for a new trial.
We begin by
recognizing that there is no dispute that, in speaking to Detective Schaller,
the jurors were guilty of misconduct. (
1127, 1156; In re Hitchings (1993) 6
Cal.4th 97, 119; see also People v.
Pierce (1979) 24 Cal.3d 199, 207; In
re Hamilton (1999) 20 Cal.4th 273, 294.)
Such misconduct by a juror raises a rebuttable presumption of prejudice. (In re
Hitchings, supra, 6 Cal.4th at p. 119; In
re Hamilton, supra, 20 Cal.4th at p. 295.)
However,
"[t]his presumption of prejudice ' "may be rebutted by an affirmative
evidentiary showing that prejudice does not exist or by a reviewing court's examination
of the entire record to determine whether there is a reasonable probability of
actual harm to the complaining party [resulting from the
misconduct]. . . ." '
[Citations.]" (
119.) "The standard is a pragmatic
one, mindful of the 'day-to-day realities of courtroom life' [citation] and of
society's strong competing interest in the stability of criminal verdicts
[citations]. It is 'virtually impossible
to shield jurors from every contact or influence that might theoretically
affect their vote.' [Citation.] Moreover, the jury is a 'fundamentally human'
institution; the unavoidable fact that jurors bring diverse backgrounds,
philosophies, and personalities into the jury room is both the strength and the
weakness of the institution.
[Citation.] '[T]he criminal
justice system must not be rendered impotent in quest of an ever-elusive
perfection. . . .
[Jurors] are imbued with human frailties as well as virtues. If the system is to function at all, we must
tolerate a certain amount of imperfection . . . .' [Citation.]" (In re
Hamilton, supra, 20 Cal.4th at p. 296.)
In
considering whether the prosecution met its burden, we are largely governed by
the trial court's credibility findings.
(People v. Gamache, supra, 48
Cal.4th at pp. 396-397.) As we have
noted, in resolving the conflicting accounts of juror No. 8, Detective Schaller
and juror No. 9, the trial court accepted juror No. 8's and Detective
Schaller's account of the brief exchange they had, in which Detective Schaller
simply attempted to avoid talking to the jurors about the case without
appearing rude. This version of events
is not only supported by the affidavits and testimony of juror No. 8 and
Detective Schaller, it is also consistent with other circumstances in the
record. First, we note that at the time
of trial Detective Schaller had been a law enforcement officer for more than 14
years and he was certainly aware jurors are not allowed to receive any information
about a case outside of court. It is
also consistent with the fact that none of the participants in the conversation
chose to report it to the court either at the time it happened or during the
course of deliberations.
In
accepting juror No. 8's and Detective Schaller's version of what occurred, the
trial court expressly rejected juror No. 9's version of events. This finding is
also fully supported by the record. As
the trial court noted, the embellishments juror No. 9 added to his version of
events when called to testify undermined his credibility. Moreover, there was a direct conflict between
juror No. 9's portrayal of what occurred at the elevator and his conduct both
before and after deliberations commenced.
While juror No. 9 testified the conversation he witnessed was fairly
intense, he did not attempt to report it to the court and when juror No. 8
mentioned it to the other jurors, juror No. 9 was surprised that it was brought
up and attempted to minimize its importance.
In sum, the trial court's credibility findings are supported by
substantial evidence in the record and accordingly are binding on us. (People
v. Gamache, supra, 48 Cal.4th at pp. 396-397.)
Accepting,
as we must, the trial court's determination of what occurred, we agree with the
trial court Cogswell was not prejudiced by the brief contact Detective Schaller
had with the jurors. Such largely
innocuous contact between jurors and witnesses are to be expected in busy and
oftentimes overcrowded courthouses.
Unless we are to require that jurors be sequestered in all cases, we
must rely on the good judgment and good faith of witnesses and jurors and
expect that, when such contact occurs, they will strictly limit any information
the jurors receive. Here, the record
shows Detective Schaller did not in fact share any information about the case
with the jurors, and although subject to dispute, did not imply that he had any
such information, and that the jurors treated the contact as
inconsequential. Under these
circumstances, the trial court did not abuse its discretion in denying
Cogswell's motion for a new trial.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER,
J.
AARON,
J.
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[1]
All further statutory references
are to the Penal Code unless otherwise specified.
[2]
We repeat without substantial
change the description of the relevant facts which was set forth in our initial
opinion.
