P. v. Head

Filed 2/3/10 P. v. Head CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed as modified.

In this case Kerry Lee Head was convicted of raping his former wife. At his trial the prosecution called his best friend as a hostile witness because she had told investigators Head had admitted forcing his former wife to have sex with him. On appeal Head argues out-of-court statements made by his best friend to jurors during a break in the trial constituted prejudicial misconduct and require reversal of his conviction. We affirm.

Although such contact between a witness and jurors is improper, here the record fully supports the trial court's determination Head was not prejudiced by the witness's out-of-court statements. First, the statements the witness made, to the effect she did not believe jurors were allowed to stand in the hall during breaks and a "woman judge" was "all I need," did not in any fashion reach the merits of the case against Head or materially impact the witness's own credibility. Second, the trial court instructed the jury to disregard the witness's out-of-court statements. Because the witness's statements were relatively benign, we have no difficulty concluding the jury followed the trial court's instructions to disregard them. Thus the record rebuts any presumption of prejudice and we therefore affirm the judgment of conviction.

PROCEDURAL HISTORY

Head was charged with forcible rape, forcible oral copulation, residential burglary, making a criminal threat, and two counts of disobeying a court order. (See Pen. Code,[1]  261, subd. (a)(2), 288a, subd. (c)(2), 459, 422, 273.6, subd. (a).) The jury found Head guilty of rape, oral copulation, and both counts of violating a court order. Head was sentenced to consecutive three-year terms on the rape and oral copulation convictions and to time served on the convictions for violating a court order. In addition, he was ordered to pay his former wife $3,718.17 in restitution and to have no contact with her.

FACTUAL BACKGROUND

Head and his former wife were married in 1998 and have one child, who was born in 2000. Head's former wife left him in 2005 because of his possessive and obsessive behavior. In exchange for signing dissolution documents, which included custody and support arrangements, Head demanded that his former wife have sex with him "one more time." Although Head's former wife never intended to honor his demand, she agreed that she would have sex with him so that he would sign the dissolution documents.

Following their separation, Head repeatedly attempted to contact his former wife, and in 2007 she obtained a restraining order against him. Head's former wife also arranged for Head to pick up their child for scheduled visitation at a sheriff's station because of her fears of him.

On July 19, 2007, Head broke into his former wife's home and told her he was there to collect on the promise she had made when he signed the dissolution documents. By using threats of physical harm, Head then orally copulated his former wife and raped her. Following the sexual assaults, Head's former wife was able to escape and drive to the sheriff's station.

During the course of investigating the assault on his former wife, a sheriff's detective obtained a recorded statement from Head's best friend Raquel Fuller. Fuller told the detective that after assaulting his former wife, Head came to Fuller's home and told Fuller that he had used a key to get into his former wife's home and that he had forced her to have sex with him.

At the time of trial, the prosecution subpoened Fuller and planned to call her as a hostile witness. While Fuller was in the hallway outside the courtroom where Head was on trial, she began a conversation with some of the jurors who were waiting for the trial to reconvene. According to juror No. 3, Fuller told the jurors "she couldn't believe they let jurors stand out in the hall. Then she asked if the judge was a woman, which I acknowledged, and she said something to the effect of, quote, that's all I need, quote. After that, there was no further conversation."

Shortly thereafter Fuller was called to the stand. Fuller testified she is Head's best friend, that she did not want to be in court, and would not have been there in the absence of the prosecution subpoena. Fuller testified that on the evening of the assault, Head came to her home at about 3:00 a.m., but that she had no recollection that Head had told her he had forced his former wife to have sex with him. Fuller testified that on the evening of the assault she had been drinking heavily and was pretty drunk by the time Head arrived. In light of Fuller's testimony, the trial court permitted the prosecution to play the recorded statement she had provided to the sheriff's detective.

Following a break in the cross-examination of Fuller, juror No. 3 advised the trial court about Fuller's earlier statement to him and the other jurors. Although both the trial court and Head's counsel agreed Fuller's statements were not a matter of great concern, at counsel's request the trial court questioned juror No. 3 in chambers about Fuller's statement. Juror No. 3 confirmed he had fully disclosed what Fuller had said and that Fuller's statement's in the hallway did not impact his evaluation of Fuller's credibility. The court then admonished the jury to disregard what Fuller said in the hallway.

DISCUSSION

I

On appeal Head contends Fuller's out-of-court statements unfairly prejudiced the jury and require reversal. We disagree and affirm.

Although the jury's discussion with Fuller was inadvertent and occurred through no fault of the jurors, such receipt of information outside the court proceeding is " 'misconduct' and creates a presumption of prejudice which, if not rebutted, requires a new trial. [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 994.) On the other hand, " ' "whether a defendant has been injured by jury misconduct in receiving evidence outside of court necessarily depends upon whether the jury's impartiality has been adversely affected, whether the prosecutor's burden of proof has been lightened and whether any asserted defense has been contradicted. If the answer to any of these questions is in the affirmative, the defendant has been prejudiced and the conviction must be reversed. [S]ince jury misconduct is not per se reversible, if a review of the entire record demonstrates that the appellant has suffered no prejudice from the misconduct a reversal is not compelled." [Citation.]' [Citation.]" (Ibid., italics added.)

As the Attorney General points out, the jurors' view of Fuller as a witness could not have been altered in favor of the prosecution by her hallway statements. On their face Fuller's statements had no direct bearing on her own testimony or on Head's guilt or innocence. With respect to her credibility as a witness at trial as opposed to the credibility of her recorded statement, it is difficult to accept Head's argument that the unhappiness she expressed to the jurors in the hallway had any influence on which version of events the jury accepted. Not only is her unhappiness logically unrelated to her credibility, she made her unhappiness known on the stand as well as in the hallway. In this regard we believe the Attorney General is correct in suggesting Fuller's credibility was probably impacted far more by the conflict between her statement that she had been drinking heavily on the evening of the assault and her earlier ability to nonetheless give the sheriff's detective a fairly detailed account of what Head told her.

In addition to the benign nature of Fuller's statements, we also note the trial court admonished the jury to disregard the statements. We of course presume " 'that jurors observe such instructions.' " (Zapien, supra, 4 Cal.4th at p. 996.)

In sum, given the relatively harmless nature of Fuller's comments and the trial court's admonition, the trial court could reasonably conclude the presumption of prejudice had been rebutted.

II

The trial court denied Head's request for probation, and at the time of trial his former wife had already obtained a permanent protective order from the family law court. In light of these circumstances, Head argues that the trial court had no power to order that he have no contact with her. The Attorney General conceded that the trial court erred in making the no-contact order.

DISPOSITION

The no-contact order of the trial court is stricken and the judgment as modified is affirmed.

BENKE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

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[1] All further statutory references are to the Penal Code unless otherwise specified.