P. v. Potts








Filed 10/24/11 P. v. Potts CA3





NOT TO BE PUBLISHED




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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----

THE PEOPLE, Plaintiff and Respondent, v. RICHARD POTTS, Defendant and Appellant.

C061855 (Super. Ct. No. SF104529A)

Two jet skiers discovered the body of Jessyca Arro on the shoreline of the San Joaquin Delta. An amended information charged defendant Richard Potts with murder, escape, attempted carjacking, false imprisonment, and battery. A jury found defendant guilty on all counts. The court sentenced defendant to life in prison without the possibility of parole.
Defendant acknowledges, consistent with DNA evidence, that he had sex with the victim, that the sexual encounter occurred in the vicinity of where her body was found, and that the victim used his phone to call her mother and her boyfriend on the morning in question. He denies that he had anything to do with her murder. His only contentions on appeal relate to a fracas that broke out in an adjacent courtroom where a defendant on trial for murder attacked and stabbed a judge before being shot and killed by an investigating officer in that case. Defendant argues the trial court erred in not granting his motion for a new trial based on the prejudicial impact of the violence in the adjacent courtroom. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On June 17, 2006, at about 4:00 p.m., two jet skiers discovered a body, later identified as 18-year-old Jessyca Arro. They flagged down two sheriff’s deputies on a boat. Arro, clad only in a blood soaked T-shirt and denim skirt, died due to drowning and blunt force trauma to the head and face.
An amended information charged defendant with murder, escape, attempted carjacking, false imprisonment, and battery. (Pen. Code, §§ 187, 4532, subd. (b), 664/215, subd. (a), 236 & 242.) The information also alleged special circumstances for murder committed during a rape and kidnapping, and prior convictions for voluntary manslaughter and evading police that constituted two prior prison terms within five years of the present offense. (Pen. Code, §§ 190.2, subds. (a)(17)(B), (C), 192, 667, 667.5 & 1170.12; Veh. Code, § 2800.2.)
A jury trial followed.

The Murder

The afternoon and evening before the discovery of her body, Arro drank with family and friends at a park and then at a vacant lot near her house. Later that evening Arro and a friend, Samantha Altieri, accompanied by Jeff Powers and Steve Lindsey, went to a house the Altieri family was remodeling, stopping first to buy beer and condoms. Arro and Powers had sex that night. They both left the house in the early morning hours; Arro said she wanted a ride to her boyfriend John Berdot’s house. Lindsey, who had driven, refused to give Arro and Powers rides until the morning because he had been drinking.
Powers walked home. Arro went into the backyard to smoke a cigarette. Arro had Altieri’s cell phone. No one saw Arro alive again.
When Arro’s body was found, it appeared to have been tethered to some rocks by a shoelace, and a large rock had been stuffed into her shirt. The shoelace had been tightly affixed to her wrist while Arro was still alive. Arro had last been seen wearing a denim skirt, black tank top, and black tennis shoes. When her body was discovered, it was clad in a denim skirt and inside out red T-shirt. A red baseball cap was found near the body.
A shoelace was found close to a nearby irrigation ditch. Arro’s shoes, without laces, were also found near the ditch. The shoes appeared to have come off as someone was “climbing out of a freshly dug irrigation canal.” Nearby were marks consistent with someone sliding down the sides of the canal, two socks, and a piece of electrical tape with hair on it. The hair had characteristics consistent with Arro’s hair.

Incriminating Evidence

Defendant was initially linked to the murder by a major genetic profile from DNA obtained on a vaginal swab taken from Arro’s body. Defendant denied knowing Arro or having any involvement with the murder. Both Powers and Berdot testified they used condoms when having sex with Arro.
The DNA evidence was not the only evidence implicating defendant. Arro often walked to her boyfriend Berdot’s house, a route which passed the apartment where defendant lived. Arro’s mother testified her daughter was comfortable walking the streets alone.
In addition, defendant’s cell phone records revealed that from early to midmorning of the murder, he received four unanswered calls that utilized towers near where Arro’s body was found. Defendant also made a call to Arro’s mother and her boyfriend that morning, calls which also used the tower near the murder scene. Neither Arro’s mother nor her boyfriend remembered receiving the calls.
The jury heard a telephone call between defendant and his girlfriend, Malecia Holt, recorded while he was confined. Holt asked defendant about scratches on the backs of his arms as well as his black eye, which she saw the day Arro’s body was found. At the time, defendant told Holt he had been in a fight. However, during the phone call, defendant denied having a black eye or scratches and reminded Holt their phone call was probably being recorded. He told Holt she was “tripping” and Holt replied, “I didn’t tell the cops that but I remember that.” Holt also told defendant, “I know you knew something about [Arro’s death] because you were standing in there when we were talking about it.”
Bridget Witbeck, another girlfriend of defendant, testified defendant had a scratch on his arm in June 2006. He told her he got it working on his car.

Defendant Escapes

While being transported from the courthouse back to prison, defendant and another inmate freed themselves from their leg restraints and handcuffs and escaped. Defendant hit a district attorney’s investigator in the head, knocking him to the ground.
Defendant then grabbed the door of a passing car, hanging on as it sped down the street. After the car crashed and the motorist ran away, defendant got into the driver’s seat and tried to accelerate before guards pulled him from the car.

Defense Case

Defendant did not challenge the DNA evidence or the cell phone records. Instead, defendant pointed to Arro’s jealous boyfriend, Berdot, as the perpetrator.
Defendant raised questions about the timing of Arro’s death, based on tidal activity. A civil engineer testified that high tide near where the body was found occurred at 10:25 the morning after the events surrounding the murder, and low tide about 5:35 a.m. Defendant argued the rising tide reached the victim’s head about 9:15 a.m. and that she must have drowned after that time. According to defendant, Berdot killed Arro because he was angry she was with someone else.
Defendant also questioned Berdot’s denial of receiving a call from Arro prior to the murder. In addition, defendant raised questions about Berdot’s alibi.
Holt’s uncle testified he spent the weekend of the murder at Holt and defendant’s residence. He saw defendant shirtless and saw no scratches.
A fingerprint examiner did not find any of Arro’s fingerprints in defendant’s car. A search of two other cars belonging to defendant yielded no evidence connected to Arro.

Trial Disturbance

Shortly after defense counsel began closing argument, the trial court announced a recess due to “some kind of a disturbance in the hallway.” The court directed the jurors to go into the jury room, close the door, and stay there.
It developed that David Paradiso, who was on trial for murder in the adjacent courtroom, assaulted the trial judge, stabbing her several times. During the attack, an investigative officer in the case shot and killed Paradiso.
The following day the court, outside the presence of the jury, spoke with counsel about what had happened: “[T]here was an event in the courthouse of which was a considerable significance, in the courtroom next door to us, we’re in Department 22. In Department 21 there was another murder trial going on, the defendant in that case was apparently testifying on the witness stand, and unknown to everyone, had secreted a stabbing instrument on his person and had attacked the judge in that courtroom and stabbing [sic] her a couple times. Fortunately she was not badly injured, but she did suffer a couple of stabbing wounds.
“The security personnel in the courtroom tried to stop the defendant in that case, and then one of the investigating officers jumped up and shot the defendant in that case and he subsequently died. And so there was an explosion that was audible here in our courtroom at the time, we didn’t know what had happened, and of course everyone panicked and thought perhaps we’re under some kind of attack also. And so there was a considerable amount of confusion, and I had to stop the trial, or recess the trial, send the jury out of the courtroom, and then subsequently sent them home for the day. And I did advise them that they shouldn’t allow any of this to influence them, and that they shouldn’t pay any attention to the news broadcast. Well, there’s been so much in the news it would be impossible for the jury not to have known what’s going on here, so there’s no [way] we can make a secret of that. So I’m sure all the jurors by now have heard the general story about this . . . that the headlines are all the judge was attacked and stabbed in the courtroom and that the security personnel shoot [sic] and killed the assailant.
“So that all happened within 15 feet of this courtroom during the day in the courthouse. And so if it’s another example of why it is necessary, I think, for the trial courts to take extreme measures to ensure security. And we do everything we can here to try to protect people’s safety, and I think all the courts, including this court, are very concerned about that. And this is another reason, another case that proves the rule that we should take extraordinary measures to try to protect everyone. So one issue.
“The next issue, of course, had been brought up in chambers here by defense counsel, and I don’t know if you want to say anything more, Mr. Bullard, about this. Mr. Bullard had asked the court to voir dire jurors individually here about what, if any, influence this whole event might have on their ability to be objective and impartial in this case.”
Defense counsel noted that, during the incident, the bailiff ran out of the courtroom. Panic ensued as the commotion continued in the hallway, which was taped off as a crime scene. The hallway filled with police officers. As the jurors were escorted out the back door, they could see everything that was going on. One of the alternate jurors participated in a televised interview about the incident.
Defense counsel stated: “So I think that they [the jury] were exposed to quite a bit right here in the courthouse. I’m assuming that like everybody else they were . . . watching television and finding out the details of what happened yesterday from all the television reports. So my concern is that whatever they may have seen yesterday or seen here at the courthouse or seen on television may have some adverse effect on how they view Mr. Potts, so I am concerned about that. I had asked the Court if the Court would please voir dire the jurors individually, find out if anything they saw yesterday at the courthouse or on television had any effect on them as far as their ability to be fair in this case. And in particular . . . whether they have any concerns about being here in the courtroom with Mr. Potts.” The court stated it was inclined to grant the request.
The prosecutor stated she had not heard the gunshots but did hear a commotion in the hallway. The court stated it heard what sounded like “someone dropped a heavy load out in the hallway,” while officers in the courtroom recognized it might be a gunshot. The court continued: “But there’s no question that it created a considerable amount of concern among everybody in the courtroom, including all the jurors. And the other thing I should note too, that I told the jurors to go in the jury room and lock the doors from the inside and don’t answer unless they were sure who it was that was on the other side of the door. And, by golly, they took me exactly at my word. We had a hard time getting the door open later on, and so they aren’t stupid. And then we did have them escorted out of the courthouse down the back stairs by other unrelated bailiffs and had to send them back up because no one was being allowed out of the courthouse, so they had to sit in the jury room for another few minutes, it wasn’t that long. And then finally, whoever was in charge by that time changed their minds and they let the jurors go. [¶] So they weren’t here for that long, but they did go up and down a couple of times. In any event, the whole bottom line here is I agree that we probably need to ask them whether or not this will influence their decision in any way, so let’s just go ahead and get it over with.”
The court then questioned each juror individually. The court asked if they could disregard what had occurred. All jurors assured the court that they would not let the events discussed influence their consideration of defendant’s case.
Following the questioning, the court asked the parties if they had any comments. Defense counsel stated he could think of none and informed the court he was ready to resume closing argument. The jurors returned to the courtroom, and the court instructed that they should ignore what took place the previous day and not let it influence their deliberations.
Following the jury verdict, defendant moved for a new trial, arguing the violence in the adjacent courtroom was “so prejudicial that it requires a new trial.” Defense counsel argued the shooting gave the unfair appearance that a defendant in a murder trial is dangerous and that, as a result, the jurors must not take any chances with reasonable doubt in convicting defendant. Included with the motion were declarations from defense counsel and another public defender describing the chaos surrounding the incident and the numerous media stories that followed.
The court denied the motion. The court noted the incident was “extraordinary” and led the court to question each juror about the impact of the event. The court concluded, “we have to trust in our jurors. They all told us that it would not influence their decision. They understand it had nothing to do with this particular case, they indicated they could go about their duties in a dispassionate way.” The court found the jurors sincere and concluded they conducted their deliberations objectively.

Discussion

Every defendant possesses the right to a trial by unbiased, impartial jurors under the Sixth Amendment to the United States Constitution. Due process requires a jury both capable and willing to decide the case before it solely on the evidence at trial, free from outside influences, and able to resist the pressures of extrinsic matters. To ensure such an unbiased jury, the trial court must be vigilant to prevent prejudicial occurrences and to determine the effect of such an occurrence should it happen. (People v. Leonard (2007) 40 Cal.4th 1370, 1414; Smith v. Phillips (1982) 455 U.S. 209, 216-217 [71 L.Ed.2d 78, 85-86].)
“Juror bias does not require that a juror bear animosity towards the defendant. Rather, juror bias exists if there is a substantial likelihood that a juror’s verdict was based on an improper outside influence, rather than on the evidence and instructions presented at trial, and the nature of the influence was detrimental to the defendant.” (People v. Cissna (2010) 182 Cal.App.4th 1105, 1116.)
Here, we must consider whether the shooting in the adjacent courtroom was “so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial.” (Holbrook v. Flynn (1986) 475 U.S. 560, 572 [89 L.Ed.2d 525, 537] (Holbrook).) In Holbrook, the Supreme Court held that the defendant was not denied a fair trial when, during trial, the usual security force was supplemented by four uniformed state troopers. The troopers sat in the front row of the spectator section. (Id. at p. 562 [89 L.Ed.2d at p. 530].)
Holbrook noted: “To be sure, it is possible that the sight of a security force within the courtroom might under certain conditions ‘create the impression in the minds of the jury that the defendant is dangerous or untrustworthy.’ [Citations.]” (Holbrook, supra, 475 U.S. at p. 569 [89 L.Ed.2d at p. 535].) Defendant argues that if the presence of security personnel in a courtroom may create the impression in the minds of the jury that the defendant is dangerous and untrustworthy, then certainly a violent incident in an adjoining courtroom could create an even more negative impression.
Defendant also argues the violence in the adjoining courtroom strongly suggested “obvious and plausibly potential parallels” with defendant and his case. Defendant notes that both he and the other defendant, Paradiso, were in their late 20’s and on trial for kidnapping and murdering a young woman. Paradiso attacked a judge; defendant violently escaped from the courthouse. These similarities, along with the violent nature of the incident, “created a substantial likelihood of engendering prejudice.”
Although defendant acknowledges that the jurors assured the trial court they could remain impartial despite the incident, he argues some “biasing events” are inherently prejudicial. In Holbrook, the Supreme Court found the First Circuit Court of Appeals correctly determined that the trial court’s assessment of jurors’ states of mind is not always dispositive. The court stated: “Even though a practice may be inherently prejudicial, jurors will not necessarily be fully conscious of the effect it will have on their attitude toward the accused. . . . Whenever a courtroom arrangement is challenged as inherently prejudicial, therefore, the question must be not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether ‘an acceptable risk is presented of impermissible factors coming into play,’ [citation].” (Holbrook, supra, 475 U.S. at p. 570 [89 L.Ed.2d at p. 535].)
Indisputably, the horrific violence in the adjoining courtroom made an impression on the court and the jury. However, we cannot find it so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial. The extraordinary incident did not implicate defendant; he had no connection to the defendant who attacked the trial judge. While the jurors may have felt unsafe during the incident, there is no reason to believe they blamed defendant or transferred any fear or hostility to him.
Defendant argues several jurors, meeting with attorneys following the verdict, asked defense counsel if he was afraid defendant might harm him. These comments, defendant suggests, reveal the jurors were unconscious of the effect the incident had on them. However, such comments do not necessarily stem from the outburst during closing arguments, but rather could reflect the jurors’ concerns given the brutal nature of defendant’s crime and his failed escape attempt. Moreover, none of the jurors, when questioned by the trial court following the incident, voiced any concern about their personal safety with defendant in the courtroom.
While we agree the violence and shooting in the adjoining courtroom were traumatic, the lack of a connection to defendant and the crimes he was charged with does not make this singular incident per se prejudicial. The trial court acted within its discretion in denying the new trial motion following its careful voir dire of the jury.
In the alternative, defendant argues defense counsel rendered ineffective assistance of counsel by failing to immediately request a mistrial instead of making the motion following the verdict. To establish ineffective assistance, defendant must show defense counsel’s representation fell below an objective standard of reasonableness and that such deficiencies in representation prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)
We cannot find defense counsel performed ineffectively. Following the incident, the trial court immediately questioned the jury and elicited no worrisome or potentially prejudicial responses. Defense counsel could reasonably believe the jury had not been so traumatized by the events that defendant would benefit from a new jury.
Nor was defendant prejudiced by defense counsel’s making the motion following the verdict. The trial court found the jurors genuinely believed they could put aside the events in the adjoining courtroom and impartially assess the evidence in defendant’s case. The timing of the new trial motion would not have had any impact on the trial court’s ruling on that motion.

DISPOSITION

The judgment is affirmed.



RAYE , P. J.



We concur:



ROBIE , J.



MAURO , J.

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