P. v. Smith
Filed 4/18/13 P. v. Smith 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.
ANDRE DELOINE SMITH,
Defendant and Appellant.
D061801
(Super. Ct.
No. SCD219244)
APPEAL from
an order of the Superior Court
of
County, Desiree A. Bruce-Lyle, Judge. Affirmed.
The issue
in this case is whether the trial court abused its discretion, on remand from
an earlier appeal, by denying defendant an evidentiary
hearing on his motion for a new trial based on juror misconduct. We find no abuse of discretion and
accordingly, affirm the order.
BACKGROUND
name="_ftnref1" title="">[1]
A jury
convicted Andre Deloine Smith of carrying
a concealed dirk or dagger. (Former
Pen. Code, § 12020, subd. (a)(4).)
The evidence showed that on the evening of February 28, 2009, a police officer was investigating a
matter and Smith aggressively demanded the officer's badge number. Smith threw his hands up in the air and he
had nothing in his hands. The officer
ordered Smith to stay back at least twice, but Smith continued to walk toward
the officer. After receiving a final
warning to stay back, Smith responded with an obscenity, while placing his left
hand at his side. The officer saw Smith
"fumbling his hand around" near his waistband and almost immediately
thereafter, the officer heard a "loud clank" on the ground. The officer saw a knife with a blade that was
approximately three and a half inches long and Smith offered, "
'Yeah. You're right, Officer. I dropped the knife. You got me.' " Smith did not testify at trial.
After the
jury was released, Smith filed a petition to unseal juror identifying
information in an attempt to obtain juror affidavits to support a motion for
new trial based on juror misconduct.
(Code Civ. Proc., § 237, subd. (b).) The court denied the petition. The court suspended imposition of sentence
for three years and placed Smith on summary probation.
Smith
appealed, contending the trial court abused its discretion by denying his
petition. This court agreed, finding
good cause for the release of the juror identifying information. In support of the motion, Smith's counsel
filed a declaration that stated counsel for both sides had met with Juror No.
10 after trial, and Juror No. 10 revealed that the "entire jury
panel" based its conviction on Smith's failure to testify. We concluded Juror No. 10's statement
"clearly suggests the possibility that one or more jurors discussed
Smith's failure to testify during deliberations," and thus the
"statement . . . provides a basis for permitting Smith
to investigate whether the jury in fact discussed the improper subject of
Smith's failure to testify. . . . If the jury did in fact
discuss Smith's failure to testify, evidence of such a discussion would be
admissible to impeach the verdict, pursuant to Evidence Code section
1150." We conditionally vacated the
judgment and ordered a limited remand.
We directed the trial court to disclose juror identifying information to
Smith's counsel and depending upon the results of counsel's investigation and
upon his subsequent motions (if any), to take such further action as may be
necessary.
On remand,
the trial court released identifying information on jurors, including Juror No.
12.
motion for a new trial based on jury misconduct. The motion was not supported by any sworn
juror affidavit. Rather, Smith presented
a statement by counsel's investigator, to the effect that he had interviewed
Juror No. 12, and Juror No. 12 stated he did not have full recall of the
deliberations, but he did recall that the jury had concerns that Smith did not
testify, did not defend himself, and did not talk about what happened. Juror No. 12, however, denied that the jury
based its decision on Smith's silence.
The
prosecution opposed the motion, arguing the investigator's statement was
inadmissible hearsay, and a sworn juror affidavit is a prerequisite to an
evidentiary hearing on the issue of juror misconduct. In reply, Smith presented a declaration by
the investigator, which reiterated the information in his statement. The prosecution also objected to the declaration
as inadmissible hearsay.
At a
hearing, Smith's counsel represented she was unable to submit a sworn affidavit
from Juror No. 12, because after talking with the investigator and being
presented with a proposed affidavit, he refused to sign it. Counsel advised the court as follows: Juror No. 12 "asked if I could e-mail
him the declaration before he signed it.
I said that's fine. And he was
concerned. His wife is a lawyer. And I guess he was concerned that he might be
facing charges. I did make it clear he
is not facing any charges. That's not
what is going on. [¶] And I sent him a declaration that I had
written up, essentially what the court has in front of
[it] . . . . And
[Juror No. 12] e-mailed me back. And he
said¾a
long list, basically backtracked on every
statement that he made. He said that
he felt that his statements were taken out of context. He felt that modifications needed to be
made. He asked me to delete certain
portions and to send it to him again."
(Italics added.)
Counsel
added, "I deleted those portions. I
sent it to [Juror No. 12] again.
[¶] He responded that he didn't
want to sign anything and that he would rather just come into court and testify
in his own words. [¶] I did subpoena him to be here today. He was outside the door at 1:30 when I was here earlier. His wife was here. I believe that he is still out there, though
I didn't check as I was trying to get back into this court as soon as
possible. [¶] So that is why I submitted a declaration on
behalf of my investigator." Counsel
conceded that the modified declaration she sent to Juror No. 12 "really
didn't say much at all, because . . . he had indicated he
wasn't willing to sign much."
The court
disallowed the investigator's declaration as inadmissible hearsay. The court found that a sworn juror affidavit
was required to make a prima facie case for an evidentiary hearing and thus it
denied Smith a hearing. It also denied
his motion for a new trial. The court
reinstated the original judgment.
DISCUSSION
Smith does not dispute that the
investigator's declaration was inadmissible hearsay. It is settled that " 'a jury verdict may
not be impeached by hearsay affidavits.' "
(People v. Williams (1988) 45
Cal.3d 1268, 1318-1319; People v. Avila (2006)
38 Cal.4th 491, 605.)
Rather,
Smith contends that when, as here, a juror is available to give live testimony
in lieu of a sworn affidavit, an affidavit is not a prerequisite of an
evidentiary hearing. " 'We review
for abuse of discretion the trial court's denial of defendant's
postverdict request for an
jury misconduct.' " (
604.)
In
(Hedgecock), the California Supreme
Court held "it is within the discretion of a trial court to conduct an
evidentiary hearing to determine the truth or falsity of allegations of jury
misconduct, and to permit the parties to call jurors to testify at such a
hearing. This does not mean, however,
that a trial court must hold an evidentiary hearing in every instance of
alleged jury misconduct. The hearing
should not be used as a 'fishing expedition' to search for possible misconduct,
but should be held only when the defense has come forward with evidence demonstrating
a strong possibility that prejudicial misconduct has occurred. Even with such a showing, an evidentiary
hearing will generally be unnecessary unless the parties' evidence presents a
material conflict that can only be resolved at such a hearing." (Id. at
p. 419, fn. omitted.)
In
new trial was supported by sworn affidavits indicating juror misconduct. The prosecution submitted counter-affidavits
denying any juror misconduct. The high
court held that under that circumstance, the trial court abused its discretion
by finding it was unauthorized to hold an evidentiary hearing. (Hedgecock,
Here, the
trial court relied on People v. Cox (1991)
53 Cal.3d 618 (Cox). In Cox,
a juror declined to sign under penalty of perjury a declaration that
ostensibly included statements she made to a defense investigator. The high court "declin[ed] to extend the
holding in Hedgecock to situations in
which the defendant merely seeks to place unsworn statements under oath by calling
upon reluctant jurors to reiterate those statements from the witness
stand." (Cox, at p. 698.)
statutory, or decisional imperative supporting such an extension. A criminal defendant has neither a guaranty
of posttrial access to jurors nor a right to question them about their guilt or
penalty verdict. . . . [¶] Second, requiring testimony under such
circumstances is tantamount to the type of 'fishing expedition' condemned in
and, at least on a preliminary basis, sign an affidavit or not. Unless the reticence results from
impermissible interference by the court or prosecutor, the reasons therefor
should not be subject to further inquiry."
(Cox, at pp. 698-699.)
power to the losing attorney would open the door to harassment of jurors
and . . . ultimately damage the jury process and the
administration of justice.' [Citation.] In the civil context, we have also recognized
that 'permitting counsel for the losing party to interrogate unwilling trial
jurors touches the integrity of our venerable jury process.
. . . [O]nce aware that after sitting through a lengthy
trial he himself may be placed on trial, only the most courageous prospective
juror will not seek excuse from service.'
[Citations.] Although in
to examination under specified circumstances, the justifiable concern for juror
prerogatives cautions against an extension of that rule to the instant
facts." (Cox, supra, 53 Cal.3d at p. 699.)
Additionally, the court noted, "jurors might well completely refuse
to talk with defense counsel or investigators if they anticipated being called
into court for subsequently declining to acknowledge their statements under
oath." (Ibid.)
Likewise,
we conclude under the facts here that the court's ruling was proper. The presentation of competent
evidentiary hearing on jury misconduct.
(Hedgecock,
Another ruling would subject jurors to being dragged into court for
fishing expeditions. Here, certainly,
defense counsel's questioning of Juror No. 12 would have been a fishing
expedition. When presented with a
proposed declaration, Juror No. 12 "backtracked" on his supposed
statements to the investigator and claimed the investigator took his statements
out of context. Defense counsel modified
the declaration, but Juror No. 12 was still unwilling to sign it. Counsel conceded the modified version had
little information in it, which does not suggest a strong possibility of
prejudicial jury misconduct. As
is ordinarily warranted only to resolve a conflict
in sworn affidavits, and no conflict existed here because there were no
sworn affidavits. (Ibid.)
Further,
Smith submits that Juror No. 12 showed up to voluntarily testify at an evidentiary hearing, but defense counsel
refused to sign an affidavit because he feared implicating himself. The court could reasonably find he was a
reluctant juror. Requiring Juror No. 12
to testify regarding an unsworn statement is the type of juror harassment
of discretion.
DISPOSITION
The order
is affirmed.
McCONNELL,
P. J.
WE CONCUR:
BENKE, J.
IRION, J.
name="_ftn1" title="">[1] For convenience, we recite facts from the earlier appeal in
this case. (People v. Smith (May 11, 2011, D056551) [nonpub. opn.].)
name="_ftn2" title="">[2] The parties agree Juror No. 12 is at issue in this appeal,
not Juror No. 10.
