P. v. Lavender
Filed 7/10/12 P. v. Lavender CA4/1
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.
FLOYD LAVENDER et al.,
Defendants
and Appellants.
D057655
D057686
(Super. Ct. Nos. JCF21566,
JCF21567)
APPEAL from
a judgment of the Superior Court
of
County, Donal B. Donnelly, Judge. Reversed.
A jury
convicted defendants Floyd Lavender and Michael Gaines of the kidnapping (Pen.
Code,
§ 207, subd. (a)) and first degree
murder (§ 187, subd. (a)) of Courtney Bowser, and the torture
(§ 206) of Bowser and two other victims (Kristen Martin and Michael
Hughes) during the same alleged crime spree.
The court sentenced each defendant to an indeterminate term of 25 years
to life on the murder charge and a consecutive five-year determinate term for
the kidnapping conviction. The court also sentenced each defendant to
three life terms on the torture counts, to run concurrently with each other but
consecutive to the term for the murder conviction.
On appeal,
defendants argue there was insufficient evidence to support the convictions,
and there were a host of other errors, including the claim the jury engaged in
prejudicial misconduct, because the jurors discussed during deliberations the
adverse inference to be drawn from fact the defendants did not testify on their
own behalf, and it was therefore error to deny their new trial motion based on
juror misconduct. They also assert (1)
the pretrial identification procedures were unduly suggestive and therefore
tainted the in-court identifications; (2) the court erroneously instructed the
jury under CALCRIM No. 315 that a witness's level of confidence in his or her
identification is a factor to be weighed when assessing the accuracy of that
identification; (3) the court erroneously admitted expert testimony that relied
on hearsay in violation of Crawford v.
Washington (2004) 541 U.S. 36 and Melendez-Diaz
v. Massachusetts (2009) 557 U.S. 305; (4) the
prosecutor engaged in acts of misconduct during closing argument, including
adverting to defendants' failure to testify; and (5) because of the weakness of
the evidence, these errors and misconduct should warrant a finding that there
was cumulative error that rendered defendants' trial
We
conclude that, although there is sufficient evidence from which
guilty, the misconduct by this jury
in discussing the adverse inference to be drawn from defendants' failure
to testify was presumptively prejudicial, and the record in this case is
inadequate to rebut that presumption.
Accordingly, we reverse the judgment and remand the matter for a new
trial.
FACTUAL
BACKGROUND
In late
August 2003, Bowser's lifeless body was found in an irrigation canal in Imperial
County, California, although it
remained unidentified for two and one-half years. The prosecution's theory of how she died, and
the identities of the persons responsible for placing her body into the canal,
was diametrically opposed to the defense theory of events. The prosecution, relying largely on the
testimony of a group of methamphetamine users (including Martin and Hughes)
with Bowser when she was last seen alive, alleged defendants became enraged
when one of the methamphetamine users stole valuable checks belonging to
defendants, and that they tortured Bowser, Martin and Hughes (and ultimately
murdered Bowser) in an effort to recover the checks.
In
contrast, the defense argued Bowser had engaged in a multiple-day
methamphetamine party with the prosecution's principal percipient witnesses,
and then died from a drug overdose, and these witnesses then panicked and
disposed of her body. The defense argued
the numerous discrepancies (both internally and when compared to other
evidence) in the versions given by prosecution witnesses showed that the
methamphetamine party participants, who had remained silent for many years
about Bowser's disappearance, waited until her body was identified to concoct a
story designed to scapegoat the two African-American defendants for Bowser's
death.
A. Prosecution Version
The Methamphetamine
Party
While
residing at Juvenile Hall, Martin met Hughes and they became friends. Martin also met Thayne Tolces at Juvenile
Hall. Tolces and Hughes were longtime
friends. Hughes was released from Juvenile
Hall on August 2, 2003, Tolces was released from Juvenile Hall three days
later, and Martin was released from Juvenile Hall on August 14, 2003.
Martin
visited Hughes and Tolces (either the day Martin was released from Juvenile
Hall or the following day) at an apartment in Palm Desert, California, where
Hughes and Tolces were living. They
decided to visit Angela Vereen at her apartment. When they arrived at Vereen's apartment,
Bowser was already there. Vereen
supplied the group with methamphetamine.
Hughes believed they spent the better part of the next four days
playing video games and consuming methamphetamine.
The Theft and
Defendants' Involvement
At some
point, Vereen noticed that some "blank" American Express traveler's
checks, which she had left on her desk, were missing.
Vereen a few days earlier.
name="_ftnref5" title="">[5] Vereen immediately called Gaines to report
the suspected theft. Defendants were
angry because a "high-powered" person from Los Angeles was coming to
get the checks, and if the checks could not be produced, they would be
"capped." Vereen suspected one
of the meth users might have taken the checks.
and told Hughes that he, Tolces and Martin needed to return to her apartment
right away.
title="">[7]
As Hughes
and Tolces were climbing the stairs towards Vereen's apartment, Vereen was
yelling at them, saying, "You guys fucked up. . . . Where are the checks at?" and
"[Gaines is] coming over [here right] now so you guys messed up." Hughes got apprehensive and returned to his
own apartment, but Tolces decided he would stay to talk with Vereen to assure
her he had not taken anything. While
Tolces was still at the bottom of the stairs, Gaines arrived and they walked up
together and entered Vereen's apartment.
inside the apartment when he and Gaines walked inside. Lavender arrived soon after.
After some
discussion, Gaines obtained a gun and then took Tolces to look for Bowser. They went to an apartment occupied by
"Renn," a former boyfriend of Bowser, who told them Bowser might be
at a nearby apartment. Tolces and Gaines
went to that apartment and Gaines knocked or kicked the door open, brandished
his gun, and took Bowser from the apartment.
They then returned to, and left Bowser at, Vereen's apartment.
Hughes. Tolces attracted Hughes's
attention by tossing a small rock against a window of Hughes's apartment. When Hughes looked out, he saw Gaines holding
a gun and heard Gaines order him to come downstairs. Gaines threatened to kill him and his (Hughes')
mother if he did not comply. Hughes came
outside but was reluctant to go with them.
Tolces was able to persuade Hughes to accompany them, and they got into
a black car driven by Gaines.
name="_ftnref11" title="">[11]
On the
drive back to Vereen's apartment, Hughes and Tolces asked Gaines what was going
on, but Gaines told them to "shut the fuck up" or he would "hit
[them] with his gun," and periodically told them they were "going to
get what [they] had coming [to them]."
Gaines also said Tolces was "going to die tonight," and would
be digging his own grave.
As soon as
they arrived at Vereen's apartment, Gaines pushed Hughes inside where Vereen
began hitting, punching and kicking him.
Gaines and Vereen then stood Hughes up and escorted him and Tolces into
a back bedroom. Eventually, all four
targets of defendants' inquisition (Hughes, Martin, Tolces and Bowser) were
taken to the back bedroom with Lavender, Gaines and Vereen, and the physical
abuse began in earnest.
name="_ftnref12" title="">[12]
Vereen
slapped Hughes, grabbed him by the ears and shook him, trying to force him to
reveal the location of the checks. While
in the back bedroom, Gaines and Lavender heated up spoons, knives and forks
with a lighter, and used these heated instruments to burn Bowser's breasts, and
also burned Martin's forehead. They also
stuck the tines of the fork into Bowser's legs.
Both Martin and Bowser were screaming.
Martin also
testified that, after being burned with the heated utensils, Lavender took the
girls into a bathroom and handcuffed
them over the shower rod. Lavender then
used a pair of scissors to cut Martin's shirt from the bottom up, cutting
through her bra and exposing her breasts.
Lavender did the same thing to Bowser, and also pulled down Bowser's
pants. While rubbing the scissors
against them, Lavender told them that if they did not reveal the location of
the checks, he was "going to put the scissors up [them]." At some point, either Gaines or Lavender also
threatened that they would take the girls out to the desert and "make
[them] dig [their] own hole."
Gaines was
also busy trying to extract the information from the boys in the living
room. At one point, Gaines threw a knife
at Tolces. Gaines also struck Hughes in
the face or forehead with his gun. At
some point during the ordeal, which Hughes estimated lasted from 8:00 or 9:00
p.m. until 6:00 a.m., Gaines also grabbed a hammer and chisel and threatened to
hit Hughes if he did not reveal the location of the checks. He then forced Hughes to the floor and began
to tap the end of the chisel on Hughes's ear.
Gaines then used the hammer to pound the flat end of some nails against
Hughes's head. By this time, the girls
had been brought back into the living room and were handcuffed together. Bowser had no clothes on and Martin was
wearing only the shirt and bra that had been cut open. As Gaines was about to again use the hammer
and nail on Hughes, Bowser blurted out that she had taken the checks and said
she had given them to a friend of Tolces.
Gaines,
Lavender and Vereen began punching and slapping Bowser, and told her she was
going to die. Bowser was screaming for
her life. Next, either Gaines or
Lavender began to shave Bowser's head with some clippers, which were pulling
her hair out and causing her to bleed.
They then forced Tolces to take over shaving her head. He shaved a sizeable amount of hair from her
head before he stopped, and her skin was ripped at the hairline.
Around
daybreak, Gaines and Lavender wrapped something around the still sobbing Bowser
and led her in handcuffs from the apartment.
This was the last time any of the witnesses saw Bowser.
next morning, Gaines (referring to Bowser) told Vereen that the "girl is
in a canal with a bag over her head barely breathing." Vereen did not take the remark seriously and
thought Bowser had simply run away.
It appears
neither Vereen nor any of the others elected to make any contemporaneous
reports to police of the abuse or the abduction. During this all-night series of events, there
was no evidence any neighboring apartment dweller complained or reported
anything unusual.
Discovery of the
Body
Around 3:00
a.m. on August 20, 2003, Bowser's lifeless body was discovered in an irrigation
ditch in Imperial County. However, her
body was not identified until February 2006.
The autopsy
by Dr. Garber was performed the day after discovery of Bowser's body. He believed the body had been in the ditch no
more than one or two days before it was discovered. He concluded, based on the condition of the
body, that she had been alive when she was placed in the water, had struggled
while being held, and had died of drowning.
However, he found no pathognomic evidence of drowning, i.e. no
indicators that permitted him to say absolutely that drowning was the cause of
death. For example, he did not find
water or foam or frothy liquids in any of the airways, but he attributed the
absence of these materials to the level of decomposition of the body. His opinion as to the cause of death was
premised on the fact that she (1) was found in a body of water, (2) had
emergent wrinkling or changes on her hands and feet, and (3) had a hemorrhage
in her middle ears. However, he agreed
the hemorrhage in her middle ears did not preclude other causes of death.
Dr. Garber
characterized drowning as "a diagnosis of exclusion," which means the
pathologist rules out other causes of death (such as strangulation or natural
causes) before concluding that drowning was the actual cause of death. One of the exclusions was whether
intoxication played a role in the death, and he testified he awaited the
results of toxicology tests before reaching his conclusion that drowning was
the cause of death. He acknowledged a
toxicology report showed some levels of gamma hydroxybutyric acid (GHB, a
so-called "date rape" drug), but he stated that GHB is normally
present in the body and was at normal postmortem levels. He excluded drug overdose as the cause of
death based on the toxicology reports and his discussions with the
toxicologist.
He could
not determine whether the body exhibited any burns or abrasions because of the
level of decomposition of the body, but there was bruising present. The photographs of the body showed no signs
any of Bowser's hair had been shaved, and the autopsy report contained no
mention that Dr. Garber observed any shaving of Bowser's hair.
B. The Defense Case
The parties
stipulated that Hughes, Tolces and Martin were all released from Juvenile Hall
between August 2, 2003, and August 14, 2003.
Another actor in defendants' scenario, Joshua Thibideaux, was
incarcerated in Juvenile Hall during the same time frame. On October 23, 2007, over a year and one-half
after police identified the body as Bowser, Thibideaux gave a statement to
police that was read to the jury.
Although he was released on the same day that Bowser's body was found,
Thibideaux's statement to police claimed he was at the apartment during the
inquisition and torture of his fellow Juvenile Hall inmates. He prefaced his story by saying, "you
gotta understand like small details like what we were doing and stuff I don't
really remember but I remember huge things," but then related a
description of events that tracked many of the salient aspects of the story
conveyed by those fellow Juvenile Hall inmates.
Specifically, he described the triggering events―that Hughes,
Tolces and Bowser
name="_ftnref15" title="">[15]
planned to and did steal the checks belonging to defendants―and that when
the theft was discovered, Hughes, Tolces, Bowser and Thibideaux went to
Vereen's apartment where defendants were waiting; when the group arrived,
defendants struck Hughes and tortured Bowser with heated implements to get the
checks back. When the detective asked if
another victim had been present, Thibideaux agreed a "Mary" was
present, but initially denied any recollection that Martin was present because
she was Thibideaux's "ex-girlfriend [and] I'm pretty sure I'd know if she
was in there." However, when police
told Thibideaux that Martin claimed to have been one of the victims, Thibideaux
eventually agreed Martin was there because "[i]f she said she was there,
she probably has a better memory than I do." Thibideaux went on to describe defendants
tying up of Martin and Bowser and torture of the naked girls, and defendants'
pistol whipping and use of a hammer to torture Hughes. However, the following day, police confronted
Thibideaux with the impossibility of his being present at Vereen's apartment
because Thibideaux's incarceration at Juvenile Hall did not end until hours
after Bowser's body had already been found.
The body,
found in Imperial County, was finally identified as Bowser in February
2006. By that time, Hughes had moved
from Palm Desert (located in Riverside County where all the events had
transpired) and was living in Michigan.
Ms. Fowler (an investigator with Imperial County) called Hughes at his
new home and identified herself as an investigator with Imperial County, but
did not otherwise state the reason she was calling. Although Hughes had no apparent connection to
Imperial County and was not told the reason for her call, he nevertheless
immediately responded, "I'm glad you called. I've been wanting to tell somebody about
this."
title="">[16]
The defense
forensic pathologist, Dr Bonnell, reviewed numerous documents on which he
relied for his opinions.
name="_ftnref17" title="">[17] He would not have concluded Bowser's death
was due to drowning because there was no "foamy edema" (water in the
lungs) or water in the stomach, and the factors on which Dr. Garber relied
(skin wrinkling and middle ear hemorrhaging) are present any time a body is
immersed in water for a sufficient length of time, even if that immersion is
post mortem. He also reviewed the
autopsy and other photographs and found no evidence Bowser had been stabbed
with a fork, or had any burn marks, or that any hair had been shaved from her
head.
Dr. Bonnell
agreed with Dr. Garber that drowning was a diagnosis of exclusion, requiring
the pathologist to rule out other causes (such as preexisting conditions or
drugs) that might explain the death. Dr.
Bonnell explained that, because he could not rule out toxicology as the cause
of death, he could not conclude drowning was the actual cause of Bowser's
death. He explained that toxicology
reports showed an elevated level of GHB in Bowser's vitreous fluids of 54.4 milligrams
per liter. That amount was well above
the 1 milligram per liter considered a normal therapeutic level, and studies
had shown that anything above 7 milligrams per liter is attributable to
administrated GHB rather than the amount of GHB produced by the body after
death. Accordingly, Dr. Bonnell
concluded Bowser had ingested GHB sometime before her death. Dr. Bonnell also noted that GHB is a
respiratory depressant, and any levels above 50 milligrams per liter in the
blood is normally considered toxic and anything above 700 milligrams is lethal
in and of itself.
Dr. Bonnell
stated he could not determine the amount of GHB Bowser had ingested because the
body metabolizes GHB and therefore the residual levels decrease over time. An excessive dose can render the user
unconscious, and he concluded there was a strong possibility Bowser overdosed
on GHB but could not prove it.
Dr. Bonnell
also testified Bowser had been dead between six and 12 hours before her body
was discovered, and that her body had been in the water for only about an hour
when it was discovered. This opinion was
based in part on a witness's account of how the body was discovered,
and in part because there was no sunburn or severe decomposition that would
suggest the body had been exposed to the extreme summer heat and sun associated
with the desert in the summer. He
believed Bowser was already dead when placed into the water because the scrape
on her left upper chest showed no "vital reaction" and therefore was
a postmortem scrape.
C. Rebuttal and Surrebuttal
The
rebuttal and surrebuttal presentations were limited to scientific witness
testimony. The prosecution witness, Mr.
Anderson, is a toxicologist experienced with GHB. He testified that GHB levels of 54 milligrams
per liter is insufficient to be the sole cause of death, and when levels are
that low, "you better look for another contributing cause of
death." He conceded the test
results strongly suggested Bowser had consumed GHB, but it was not a
"substantial" ingestion. However,
he agreed GHB has a very short half-life of between 20 and 60 minutes, so
Bowser's GHB levels could have been twice that level just 20 to 30 minutes
before her death. He agreed there were
studies that attributed death to levels below 54, but he disagreed with those
conclusions and stated the data had been misinterpreted.
Dr.
Bonnell, testifying in surrebuttal, reaffirmed that any GHB levels above 7 show
the decedent ingested GHB, and studies have indicated a minimum level to be 55
or 60 milligrams, while some studies have suggested toxicity can begin as low
as 20, and the variation was likely attributable to the different body masses
and metabolation rates of the subjects.
He also noted that, because the half-life of GHB can be as fast as 18
minutes, a reading of 54 at the time of Bowser's death could mean her GHB
levels were over 400 a little over an hour before her death if Bowser was a
"fast metabolizer," and her body would have continued to metabolize
the GHB even if she had lapsed into a coma.
ANALYSIS
A. The Jury Misconduct Claim
Defendants
contend the trial court erred when it denied their motion for a new trial based
on jury misconduct because it erroneously restricted the evidence presented in
support of the motion, failed to conduct a Hedgecock
hearing to resolve the disputed issue of whether the jury's misconduct was
substantial rather than fleeting, and concluded the presumption of prejudice
had been sufficiently rebutted.
The Motions
Gaines
filed a motion for new trial, in which Lavender joined, alleging jury
misconduct. They argued the jury
improperly discussed and considered during their deliberations defendants'
failure to testify, which was likely encouraged by the Griffin
name="_ftnref20" title="">[20]
error committed by the prosecutor during her rebuttal closing argument. Defendants supported the motion with
declarations from three jurors. Juror
No. 10 averred that, "There was no testimony from the defendants and we
discussed this fact during the deliberations and openly talked about why they
did not testify and that this fact made them appear guilty to us. [¶]
There was not enough testimony from defendants' witnesses. The jury discussed that the defendants should
have provided more witnesses, including themselves, to testify on their
behalf." Declarations from two
other jurors confirmed there were discussions concerning defendants' failure to
testify. The prosecution filed
opposition to the motion, including two declarations from two of defendants'
declarants (the "clarifying" declarations),
and a declaration from the foreperson averring there was a single reference to
their failure to testify and that it was immediately quashed by his
admonishment.
In reply,
Gaines filed a declaration from the investigator who interviewed the jurors to
obtain their original declarations, and provided proposed testimony to buttress
the extent of the jury's discussions about defendants' failure to testify, and
to undermine the clarifying declarations of Juror Nos. 4 and 9 filed by the
prosecution. The investigator stated he
read Juror No. 4's clarifying declaration and averred "[t]his is
. . . not what he told me . . . . [Juror No. 4] told me that the defendants not
testifying was discussed for some period
of time and was more than a mere mentioning of that fact. He also told me that the jury discussed that
if they were really innocent they would have testified. He never said that [the foreperson] or any
other juror admonished them to stop talking about that or that they could not consider
this in their deliberations." (Italics
added.) The investigator also stated
that he read Juror No. 9's clarifying declaration and averred "[t]his is
not what she told me when I first interviewed her. [Juror No. 9] told me that several jurors
discussed the fact that the defendants did not testify. She did say that at some later point in time that a juror said that they should not
discuss that. She never told me that the
foreperson immediately put a stop to that discussion." (Italics added.) Finally, the investigator described his interview
with another juror (M.G.), who told the investigator the jury discussed
defendants' failure to testify and the adverse inference drawn from their
silence.
title="">[22]
The trial
court, recognizing the delicate and fine line separating admissible evidence of
objective facts occurring in the jury room and inadmissible evidence of
subjective reasoning processes of jurors (see, e.g., People v. Cissna (2010) 182 Cal.App.4th 1105, 1116 (
as follows:
(1) Juror No. 9's statement in her original declaration
that "[s]everal jurors also discussed the fact that the Defendants did not
testify in this case" was admitted.
The court excluded the balance of her original declaration as reflecting
thought processes of the jury.
(2) Juror No. 4's statement in his original declaration
that "the fact that the defendants did not testify was discussed at length
during the deliberations" was admitted.
The court excluded his statements that these discussions "played a
large part in our decision" and that "[w]e discussed the fact that if
the defendants were innocent then they should've testified" as reflecting
thought processes of the jury.
(3) Juror No. 10's statement in his declaration that
"[t]here was no testimony from the defendants and we discussed this fact
during the deliberations" was admitted.
The court excluded the balance of the declaration, including the
statements that the jury "openly talked about why they did not testify and
that this fact made them appear guilty to us" and the statement that
"[t]he jurors discussed that the defendants should have provided more
witnesses, including themselves, to testify on their behalf" as reflecting
thought processes of the jury.
(4) The court excluded the entirety of the
investigator's declaration as hearsay, irrelevant, and a "violation of
Evidence Code section [1150]."
The trial
court, applying the same distinction between admissible evidence of objective
facts and inadmissible evidence of the subjective reasoning processes of
jurors, ruled on the prosecution evidence as follows:
(1) Juror No. 9's statement in her clarifying
declaration that "[t]he only discussion that occurred during deliberations
regarding the defendants not testifying is when one of the jurors mentioned
it. The foreperson immediately
admonished that juror that we could not consider that issue. Several other jurors then also repeated that
it was an issue that we could not consider" was admitted. The court excluded the balance of her
original declaration as reflecting thought processes of the jury, or as
irrelevant or hearsay.
(2) Juror No. 4's statement in his clarifying
declaration that "[t]he only discussion that occurred during deliberations
regarding the defendants' not testifying is when a juror mentioned it. The foreperson immediately told the juror
that we could not consider that issue" was admitted.
(3) Juror No. 12's statement that "[t]he only
discussion that occurred during deliberations regarding the defendants not
testifying is when one of the jurors mentioned it. I immediately admonished that juror that we
could not consider that issue. I
specifically recall that Juror No. 11 . . . also stated that we were
not to consider that issue and must follow the instructions" was
admitted. The court excluded the balance
of Juror No. 12's declaration.
name="_ftnref23" title="">[23]
On this
record, the court found misconduct did occur.
However, the court found the presumption of prejudice had been rebutted
by the prosecution's showing that no actual prejudice occurred, because the
foreperson's admonition cured the misconduct.
The court also found there was insufficient basis for ordering a
clearly defined and specific disputes on material issues relating to the
misconduct, and a hearing would present a danger of inquiring into the thought
processes of the jurors.
Legal Principles
impartial jury. (In re
Hamilton (1999) 20 Cal.4th 273, 293.)
"An impartial jury is one in which no member
has been improperly influenced [citations] and every member is
' "capable and willing to decide the case solely on the evidence
before it [citations]." ' "
(Id. at p. 294.)
"Prejudicial jury misconduct
constitutes grounds for a new trial."
(People v. Blackwell (1987)
191 Cal.App.3d 925, 929.) In general,
jurors commit misconduct when they directly violate the oaths, duties, and
admonitions imposed on them. (
294.)
It is well
established that
a trial court's instruction not to discuss the defendant's failure to
testify. (People v. Leonard (2007) 40 Cal.4th 1370, 1425 (Leonard).)
"This misconduct gives rise to a presumption of prejudice, which
'may be rebutted . . . by a reviewing court's determination, upon [an
examination of] the entire record, that there is no substantial likelihood that
the [defendant] suffered actual harm.' " (Ibid.)
Procedural
Framework
"When a defendant moves for a
new trial based on jury misconduct,
the trial court undertakes a three-part
inquiry. 'First, the court must
determine whether the evidence presented for its consideration is
admissible. . . .
[¶] Once the court finds the
evidence is admissible, it must then consider whether the facts establish misconduct
[¶] Finally, if misconduct
is found to have occurred, the court must determine whether the
v. Sanchez (1998) 62 Cal.App.4th 460, 475.)
This court
recently explained that, when challenging the validity of a verdict based on
juror misconduct, the first step requires a defendant to "present evidence
of overt acts or statements that are objectively ascertainable by sight,
hearing, or the other senses." (
1116.) We also cautioned that "[n]o
evidence may be presented concerning the subjective reasoning processes of a
juror that can neither be corroborated nor
disproved . . . ."
(Ibid.) Thus, the first step requires the court to
cull admissible evidence of overt conduct from inadmissible evidence purporting
to describe the subjective reasoning processes of the juror or jury.
In the
second step, the court must examine the admissible evidence assembled during
the first step to determine whether misconduct occurred. Where the admissible evidence raises a strong
possibility that misconduct has occurred, the trial court also has discretion
to determine whether to conduct an evidentiary hearing to resolve factual
disputes raised by the claim of juror misconduct. (People
v. Avila (2006) 38 Cal.4th 491, 604.)
A defendant is not entitled to an evidentiary hearing "as a matter
of right. Such a hearing should be held
only when the court concludes an evidentiary hearing is 'necessary to resolve
material, disputed issues of fact.'
[Citation.] 'The hearing
. . . should be held only when the defense has come forward with
evidence demonstrating a strong possibility that prejudicial misconduct has
occurred. Even
such a
hearing will generally be unnecessary unless the parties' evidence presents a
material conflict that can only be resolved at such a
hearing.' " (
If the
court determines there was misconduct, it must then turn to the final step of
determining prejudice. As to the last
step, our Supreme Court has explained that "[m]isconduct by a juror
. . . usually raises a rebuttable 'presumption' of prejudice.
[Citations.]
by statute from establishing the actual prejudicial effect of the incident under
scrutiny [citations] and accommodates the fact that the external circumstances
of the incident are often themselves reliable indicators of underlying bias
[citation]. [¶]
overturned for jury misconduct or irregularity ' " 'is resolved
by reference to the substantial likelihood test, an objective
standard.' " ' [Citations.]
Any presumption of prejudice is rebutted, and the verdict will not be
disturbed, if the entire record in the particular case, including the nature of
the misconduct or other event, and the surrounding circumstances, indicates
there is no reasonable probability of prejudice." (In re
Hamilton, supra, 20 Cal.4th at pp. 295-296.)
Our
Supreme Court in In re Carpenter
(1995) 9 Cal.4th 634, after noting a verdict will be set aside if there appears
to be a substantial likelihood of juror bias, expanded on the relevant inquiry
by explaining that juror bias:
"can
appear in two different ways. First, we
will find bias if the [improper conduct], judged objectively, is inherently and
substantially likely to have influenced the juror. [Citations.]
Second, we look to the nature of the misconduct and the surrounding
circumstances to determine whether it is substantially likely the juror was
actually biased against the defendant.
[Citation.] The judgment must be
set aside if the court finds prejudice under either test.
"The
first of these tests is analogous to the general standard for harmless-error
analysis under California law. Under this standard, a finding of 'inherently'
likely bias is required when, but only when, the [improper conduct] was so
prejudicial in context that its erroneous introduction in the trial itself
would have warranted reversal of the judgment.
Application of this 'inherent prejudice' test obviously depends upon a
review of the trial record to determine the prejudicial effect of the [improper
conduct].
"But a
finding that the [improper conduct] was 'harmless' by appellate standards, and
thus not 'inherently' biasing, does not end the inquiry. Ultimately, the test for determining whether juror misconduct likely
resulted in actual bias is 'different from, and indeed less tolerant than,'
normal harmless error analysis, for if it appears substantially likely that a
juror is actually biased, we must set aside the verdict, no matter how
convinced we might be that an unbiased jury would have reached the same
verdict. [Citation.] A biased adjudicator is one of the few
'structural defects in the constitution of the trial mechanism, which defy
analysis by "harmless-error" standards.' [Citations.]
as to cause 'inherent' bias under the first test, the totality of the
circumstances surrounding the misconduct
still be examined to determine objectively whether a substantial likelihood of
actual bias nonetheless arose. Under
this second, or 'circumstantial,' test, the trial record is not a dispositive
consideration, but neither is it irrelevant.
All pertinent portions of the entire record, including the trial record,
must be considered. 'The presumption of
prejudice may be rebutted, inter alia, by a reviewing court's determination, upon
examining the entire record, that there is no substantial likelihood that
the complaining party suffered actual harm.' " (In re
Carpenter, supra, 9 Cal.4th at pp. 653-654, first and second italics
added.)
Whether
prejudice arose from juror misconduct is a mixed question of law and fact. "On appeal from a ruling denying a new trial motion
supported by substantial evidence, and exercise our independent judgment on the
issue of whether prejudice arose from the misconduct . . . ." (Cissna, supra, 182 Cal.App.4th at p.
1117.)
As a
preliminary matter, we conclude the court erred when it excluded, and therefore
did not weigh, certain evidence relevant to showing the scope of the
misconduct. Although the court admitted Juror
No. 4's statement (in his original declaration) that "the fact that the
defendants did not testify was discussed at length during the
deliberations," it excluded his statements that these discussions
"played a large part in our decision" and that "[w]e discussed
the fact that if the [defendants] were innocent then they should've
testified." The latter statement
clearly represented "statements that are
objectively ascertainable by sight, hearing, or the other senses" (
p. 1116), and should have been admitted.
The former statement, while arguably describing the "subjective
reasoning processes" of the jury, is at least equally capable of an
interpretation that described the quantitative
level at which the failure to testify was involved in the jury's discussions,
admissible as objectively ascertainable conduct.
Although
the court admitted Juror No. 10's statement that "[t]here was no
testimony from the defendants and we discussed this fact during the
deliberations," it excluded the balance of the declaration. While most of the balance of Juror No. 10's
statement was inadmissible, the court excluded two statements (e.g. that the
jury "openly talked about why they did not testify and that this fact made
them appear guilty to us" and that "[t]he jurors discussed that the
defendants should have provided more witnesses, including themselves, to
testify on their behalf")
hearing, or the other senses" (Cissna,
supra, 182 Cal.App.4th at p. 1116), and should have been admitted.
Finally,
the court entirely excluded the investigator's declaration, concluding
it was hearsay.
Certainly, unsworn hearsay is
incompetent to prove misconduct (People
v. Dykes (2009) 46 Cal.4th 731, 810-811), but the investigator's
declaration was submitted under penalty of perjury, and therefore is distinct
from the information considered in Dykes. We agree the investigator's averments as to
what he was told by juror M.G. was inadmissible hearsay, because it was offered
for the truth of the matters asserted, i.e. that the jury discussed defendants'
failure to testify during their deliberations and "the jury said during
deliberations that if they were really innocent then they should have testified
and told us they were innocent."
However, the investigator's testimony, offered to impeach the clarifying
declarations submitted by Juror Nos. 4 and 9, was not inadmissible hearsay because
it was offered as prior inconsistent statements by those jurors, which at a
minimum made the statements admissible under Evidence Code section 1202.
668.)
Analysis
of Second Step
The state
of the admissible evidence before the trial court showed the jury, in violation
of the court's instructions and the defendants' rights, discussed the
defendants' failure to testify and the adverse inference to be drawn from that
fact. The trial court found, and the
People acknowledge, "[b]y discussing the fact that [defendants] had not
testified, [the] jurors committed misconduct
People also concede " ' "[t]his misconduct gives rise to a
presumption of prejudice, which 'may be
rebutted' " ' " (quoting People v. Loker (2008) 44 Cal.4th 691, 749 (Loker)). Because the
People's concessions appear consonant with applicable law (see
p. 1425), we accept these concessions and therefore turn to the issue of
whether the presumption of prejudice has been rebutted. (Ibid.; accord, People v. Hord (1993) 15 Cal.App.4th 711, 725 (Hord).)
Our
independent review of the entire record convinces us the presumption of
prejudice has not been rebutted because the evidence does not show there was no
substantial likelihood defendants suffered actual harm as a result of the
evidence connecting defendants to Bowser's death at all, and even the forensic evidence and opinions concerning the
cause of her death were sharply conflicting and approaching equipoise. Because of this dearth of forensic
certainties, the jury was required to assess defendants' guilt or innocence by
deciding whether it believed the prosecution's version of what transpired, or
whether it instead gave sufficient credit to the defense theory of what
happened as to raise a reasonable doubt as to the prosecution's version.
The
prosecution's version rested entirely on the testimonies of the prosecution's
four witnesses whose testimonies (at best) were inconsistent in numerous
details among the four witnesses' versions and (at worst) were inconsistent
with the forensic evidence.
to some degree (and according to one juror's declaration discussed to an extensive
degree) that its credibility calculus would be influenced by defendants'
failure to testify in their own defense.
In Cissna, supra, 182
Cal.App.4th 1105, this court considered an analogous claim of misconduct. In Cissna,
a juror extensively discussed the case with an outsider, and one of the topics
of their conversations was "the implications to be drawn from the fact
defendant would not likely be testifying . . . ." (Id.
at p. 1119.) This court, noting the
nature of the case (charges of continuous sexual molestation against a victim
under the age of 14) made the credibility of the prosecution's witness of
pivotal importance, observed:
"[T]he
fact that Juror D. and G. discussed the import of defendant's decision not to
testify demonstrates that this outside influence was directed to a critical
issue and one that was potentially highly detrimental to the defense.
As is true in all criminal trials, the jury was instructed that it is
not permitted to consider or discuss the fact that defendant exercised his
testify. [Citation.] This
the jury from drawing adverse inferences against the defendant in violation of
the constitutional right not to incriminate oneself. [Citation.]
In some cases the courts have found comments about a defendant's failure
to testify to be nonprejudicial misconduct.
[Citing Hord, supra, 15
Cal.App.4th 711, Leonard, supra, 40
Cal.4th 1370 and Loker, supra, 44
Cal.4th 691.]
circumstances of this case show the discussion of defendant's decision not to
testify carried a high potential of prejudice to the defense. In the absence of physical evidence, sexual
molestation cases inevitably turn largely on the jury's evaluation of the
victim's credibility. A defendant is entitled to have all 12 jurors make this
evaluation without considering whether the defendant took the stand to deny the
accusations. The defendant's silence
should not be a factor adding to any inferences that the victim is telling the
truth. The fact that Juror D. discussed
defendant's silence with G. reflects that Juror D. considered this
factor. . . . This improper
influence obviated the defendant's constitutional right not to have his silence
play any role in his conviction." (
Here, as
in Cissna, there was no physical
evidence remotely connecting defendants to Bowser. Accordingly, as in Cissna, the entire case turned on the credibility of witnesses
whose versions were at best internally inconsistent in many particulars. Under the facts of this case, we cannot
conclude the jury's discussion of defendants' failure to testify, which
"presumptively establish[ed] prejudicial jury misconduct" (
893, 908-909), did not warrant a new trial because we cannot conclude
" 'upon examining the entire record, that there is no
substantial likelihood that [defendants] suffered actual harm [from the
misconduct].' " (
654.)
The
People, relying on Leonard and
prejudice was rebutted because the jury foreman's declaration averred that
there was a single comment about the defendants' failure to testify and that he
immediately reminded the jury that it could not consider their failure to
testify. Even assuming the foreman's
declaration did not create the necessity for a Hedgecock hearing, the actions below differ markedly from the
actions considered in Leonard and
the conduct in Cissna and
For example, in Leonard, the
offending conduct was limited to comments (made during the penalty phase
deliberations) by jurors that they " 'would have liked for
[defendant] to testify during the penalty phase so that we could better
understand why he killed six people, and whether he was truly remorseful
. . .' [and] understand the extent of his
impairment.' " (
Leonard, concluding this was
not prejudicial misconduct, reasoned:
"[T]he
purpose of the rule prohibiting jury discussion of a defendant's failure to
testify is to prevent the jury from
drawing adverse inferences against the defendant, in violation of the
constitutional right not to incriminate oneself. Here, the comments on defendant's failure to
testify mentioned in defendant's new trial motion merely expressed regret that
defendant had not testified, because such testimony might have assisted the
jurors in understanding him better. In
the words of the trial court: 'I think that wanting to hear defendants testify
is natural. We do the best we can to
deter jurors from speculating and from drawing negative inferences, but
have testified is not the same as punishing the Defendant for not
testifying. It is not the same as
drawing negative inferences from the absence of testimony.' " (Id.
at p. 1425.)
Similarly,
in Loker, the defendant's failure to
testify was " 'mentioned only briefly' " and only in the
context of the penalty phase (Loker,
and Loker (following
prejudice was rebutted because the offending conduct was brief and relatively
innocuous. (Loker, at pp. 748-749.)
Here, in
contrast, the evidence showed the discussions, in addition to being more
extensive than in Leonard or
precisely the type of inference not
present in Leonard or
their failure to testify. That distinction
was recognized by the Hord court when
it considered a claim of misconduct. The
declarations from the jurors in Hord
stated there was a "comment" or it was "discussed" that the
defendant did not testify. (
pp. 721-722.) Hord stated:
"Here,
during deliberations there was a comment or comments made about defendant's not
testifying and a comment regarding defendant's sentence. Although these matters
were not to be discussed, the discussion was very different than when a juror
performs experiments or brings in new law or facts into deliberations. The jury
was obviously well aware here that defendant did not testify and equally aware
that he would be punished if the jury found him to be guilty. Thus the comments
did not interject any new material into deliberations that was not already
known by the jury from the trial itself. Transitory comments of wonderment and
curiosity, although
innocuous, particularly when a comment stands alone without any further
discussion. . . ."
"When
comments go beyond natural curiosity and their content suggests inferences from
forbidden areas, the chance of prejudice increases. For example, if a juror were to say, 'The
defendant didn't testify so he is guilty,' . . . the comments go
beyond mere curiosity and lean more toward a juror's drawing inappropriate
inferences from areas which are off limits.
Such comments are more likely to influence that juror and other jurors.
"In [the
juror's] initial declaration, he recited a juror's oblique remark about a party
not saying anything to protect himself. Although this comment may have carried
a greater potential for prejudice than a mere statement of curiosity, in light
of the record before us it does not require reversal. It does not appear that there was a lengthy
discussion . . . .
The comments did not involve extra record material but were regarding
matters already obvious to the jurors.
More importantly, the foreperson admonished his fellow jurors and
reminded them they could not consider defendant's not testifying during
deliberations." (
727-728.)
Here,
unlike the situations in Hord, Leonard and
failure to testify was not limited to expressions of regret or curiosity, but
instead was expressly linked to the adverse inference of guilt to be drawn from
the failure to testify.
words, when such comments arise in the jury room, "the chance of prejudice
increases . . . [because] the comments go beyond mere curiosity and
lean more toward a juror's drawing inappropriate inferences from areas which
are off limits. Such comments are more
likely to influence that juror and other jurors." (Hord, supra, 15
Cal.App.4th at p. 728.)
We
conclude that, because the evidentiary landscape in this case turned entirely
on close and substantial credibility assessments, and a "defendant is
entitled to have all 12 jurors make this evaluation without considering whether
the defendant took the stand to deny the accusations [and] [t]he
factor adding to any inferences that the victim is telling the truth" (
1121), the presumption of prejudice from the misconduct has not been
rebutted. Accordingly, we reverse the
convictions and remand the case for a new trial.
B. The Sufficiency of the Evidence Claims
Defendants
contend the evidence was insufficient to support any of the convictions, and
alternatively the evidence was insufficient to support the torture convictions.
Legal Standards
When we
review a challenge to the sufficiency of the evidence to support a verdict, we
review all of the evidence most favorably to the verdict. We draw all reasonable inferences in support
of the verdict, but do not make credibility judgments or reweigh the
evidence. The question we must decide is
whether there is sufficient, substantial evidence from which a reasonable jury
could find the charge proved beyond a reasonable doubt. (People
v. Johnson (1980) 26 Cal.3d 557, 576.)
" 'Circumstantial
evidence
may be sufficient to connect a defendant with the crime and to prove his guilt
beyond a reasonable doubt.' "
(People v. Bloyd (1987) 43
Cal.3d 333, 347.)
" ' "Although it is the duty of the jury to acquit a
defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court[,] which must be convinced
of the defendant's guilt beyond a reasonable doubt" ' " (
11), and we may neither reweigh the evidence nor
reevaluate a witness's credibility. (People
v. Guerra (2006) 37 Cal.4th 1067, 1129.) Where the
circumstances reasonably justify the trier of fact's findings, the reviewing
court's opinion that the circumstances might also reasonably be reconciled with
a contrary finding does not warrant a reversal of the judgment. (People
v. Stanley (1995) 10 Cal.4th 764, 793.)
The
Global Argument
Defendants
first argue that all of the convictions lack
was too speculative and rested on patently unbelievable testimony. Although there were numerous contradictions
among the witnesses, a trier of fact could have found rational explanations for
resolving the discrepancies, including the passage of time, the traumatic
impact of the events, or the fact the witnesses' ability to perceive and recall
had been hampered by their drug-induced fog.
We cannot conclude the evidence was so inherently improbable that it
could not support a conviction.
We
are not persuaded the case was so speculative that there was insufficient
evidence to support the convictions.
Defendants argue, for example, that how and by whom Bowser was placed in
the canal was necessarily speculative.
However, if the trier of fact accepted that defendants (after
threatening they would take Bowser and Martin out to the desert a "make
[them] dig [their] own hole") in fact took Bowser with them around 6:00
a.m., and that her body was discovered around 3:00 a.m. the next morning, the
trier of fact could infer that they followed through on their threat to kill
Bowser, particularly if the jury further credited Vereen's testimony that
Gaines told Vereen the next day that the "girl is in a canal with a bag
over her head barely breathing." We
cannot conclude as a matter of law that the evidence is insufficient to support
the convictions.
The
Torture Argument
Defendants
alternatively argue that, even assuming the evidence supported the kidnapping
and murder charges, there was no substantial evidence supporting the torture
convictions because there was no evidence any of the victims suffered the
requisite level of bodily injury required for a torture count under section
206.
"[T]orture
has two elements: (1) a person inflicted great bodily injury upon the person of
another, and (2) the person inflicting the injury did so with specific intent
to cause cruel and extreme pain and suffering for the purpose of revenge,
extortion, persuasion, or for any sadistic purpose." (People
v. Baker (2002) 98 Cal.App.4th 1217, 1223.)
Defendants do not contest the sufficiency of the evidence on the intent
element, but instead argue there was no evidence any of the victims suffered
the requisite level of bodily injury.
However, as this court reaffirmed in People
v. Pre (2004) 117 Cal.App.4th 413, 420, "[s]ection 206 does not
require permanent, disabling, or disfiguring injuries; '[s]ection 206 only
requires "great bodily injury as defined in Section 12022.7"
. . . . "Abrasions,
lacerations and bruising can constitute great bodily
injury." ' " As to
Bowser, Dr. Garber observed her body had bruising present. As to Martin, she testified defendants burned
her forehead with heated utensils. As to
Hughes, he testified he was struck in the head with a gun butt with sufficient
force that he still had a scar, that defendants also used a chisel and the flat
end of nails pounded with a hammer to inflict such pain that he got dizzy and
almost blacked out, and that he was "covered in blood" in the
aftermath of their torture.
We cannot conclude as a matter of law that a jury could not
have found the level of physical harm inflicted by defendants satisfied
the requirements for conviction under section 206.
DISPOSITION
The
convictions are reversed and the matter is remanded for a new trial.
McDONALD, J.
WE CONCUR:
NARES, Acting P. J.
AARON, J.
name="_ftn1" title="">[1] All further
statutory references are to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] Because we reverse because of juror misconduct, we do not
address the balance of defendants' claims of error except for their claims of
insufficient evidence, because these claims, if successful, would bar retrial
under double jeopardy principles. (See, e.g., People v. Seel (2004)
34 Cal.4th 535, 550.)
