Court: Superior County: Los Angeles Judge: Charles E. Horan Super. Ct. No. BA105846
The opinion of the court was delivered by: Corrigan, J.
A jury convicted co-defendants Michael Allen and Cleamon Johnson of the first degree murders of Peyton Beroit and Donald Loggins, with multiple-murder special-circumstance findings as to both. After Allen waived his right to a jury trial, the court found that he had previously been convicted of first degree murder.*fn1 The jury returned verdicts of death for both defendants.
During guilt phase deliberations, two jurors reported their concern that another juror had made up his mind before the case was submitted to the jury. After speaking with all panel members, the court discharged that juror for having prejudged the case, and for having relied on evidence not presented at trial. Based on this record, the court erred.
We reverse the guilt and penalty phase verdicts.
Because we are reversing defendants' convictions for the court's error during deliberations, a lengthy recitation of the facts of the crime is unnecessary.
The evidence introduced at trial indicated that defendants were members of a Los Angeles street gang. On August 5, 1991, Johnson told Allen to shoot rival gang member Beroit. Witnesses testified Allen shot both Beroit and Loggins as they sat in a parked car.
One witness of note was Carl Connor. He claimed to have been near the scene at the time of the shootings and identified Allen as the shooter. Defendants impeached Connor's testimony by introducing evidence of his employment timecard that showed he was at work on the day of the crime. Connor explained that he and a co-worker, "Jose," often clocked in for each other, so the records would indicate they were at work when in fact they were not.*fn2
II. DISCHARGE OF A JUROR FOR ASSERTED MISCONDUCT DURING THE GUILT PHASE
As discussed more fully below, after several days of guilt phase deliberations, Jurors No. 5 (the foreperson) and No. 4 reported to the court their belief that Juror No. 11 had prejudged the case while evidence was still being presented. A lengthy investigation ensued during which the court interviewed all 12 jurors. Concluding that Juror No. 11 had prejudged the case and was relying on evidence not presented at the trial, the court discharged him and seated an alternate juror. The reconstituted jury found defendants guilty and later returned death verdicts.
Defendants contend Juror No. 11 was not unable to perform his duty. Thus, the court exceeded its discretion under section 1089*fn3 when it removed him and seated an alternate. Because the record does not show to a demonstrable reality that Juror No. 11 was unable to discharge his duty, the court abused its discretion by removing him. This conclusion, based on state law, obviates the need to decide whether Juror No. 11's removal also violated defendants' constitutional rights. (See People v. Wilson (2008) 44 Cal.4th 758, 814 (Wilson).)
Guilt phase deliberations began on August 20, 1997. Over the ensuing four court days, the jury asked questions and heard testimony reread. The jury sent the court a note inquiring whether there was a reward associated with the case. The court explained there was no evidence in the record suggesting the existence of a reward, and admonished the jury not to speculate about matters outside the record.
After the court adjourned at the end of the fourth day, the bailiff discovered the foreperson and Juror No. 4 alone in the jury room. They asked the bailiff if they could see the judge without the lawyers present. Through the bailiff the court replied it would not meet with them, and the bailiff suggested that instead they write a note. The jurors told the bailiff they were afraid to write a note, and if their concern was not dealt with that day, they would not have the courage to deal with it later.
On the following morning, the court told counsel of the jurors' colloquy with the bailiff. With the agreement of all counsel, the court interviewed the foreperson.*fn4 The foreperson said that he and Juror No. 4 believed that Juror No. 11 had made up his mind before deliberations began. According to the foreperson, on the second day of deliberations Juror No. 11 said, "When the prosecution rested, she didn't have a case."*fn5 When asked whether he had made up his mind, Juror No. 11 hesitated slightly and said, "No. No. No. I haven't made up my mind." Juror No. 11 had voted "undecided" during a preliminary vote taken that morning. The foreperson said that when he and Juror No. 4 met separately from the other jurors on the previous afternoon, they did not discuss the law or the facts of the case.
The court then questioned Juror No. 4, who also believed that Juror No. 11 had made up his mind before deliberations began. Juror No. 4 reported that Juror No. 11 had said, on several occasions, that he "was waiting for the prosecuting attorney to -- to bring her case forward, and it never happened." Juror No. 4 also believed Juror No. 11 misconstrued the evidence to support his position. By way of example, Juror No. 11 referred to Connor's testimony that his friend, Jose, sometimes punched in for him at work. Juror No. 11 said, "That's a lie. I know Hispanics, they never cheat on timecards, so this witness [Connor] was at work, end of discussion."*fn6 Juror No. 4 also believed Juror No. 11 was not "being completely honest" when he denied having already made up his mind. Juror No. 4 said she and the foreperson had not discussed the law or the facts of the case while alone in the jury room.
Over defendants' objections, the court spoke individually to each of the other jurors. In response to the court's inquiry whether any juror "appeared to have gone into the deliberations with a very fixed immutable position, prior to actually discussing the case?" Juror No. 1 responded, "From my standpoint [three] jurors have had this mindset from the beginning. In other words, all the witnesses are unreliable, all the testimony is unreliable." According to Juror No. 1, it was another juror, not Juror No. 11, who had said the prosecutor failed to make her case. Juror No. 1 recalled the remark about the timecard, but not who had made it. Juror No. 11 had nodded off during deliberations, and did not pay attention if someone said something he did not like.
Juror No. 2 said some jurors indicated they had been convinced how to vote before deliberations began. He did not specify Juror No. 11, and noted that no one had said they "didn't need to come in [the jury room] to do anything."
Juror No. 3 believed no juror began deliberations with a fixed view. Juror No. 3 observed that, at one point, Juror No. 11 leaned back with his eyes closed, but she thought he was listening.
Juror No. 6 suspected Juror No. 11 and another juror began deliberations with their minds already made up, but acknowledged each juror said he or she was still undecided at the start of deliberations. With respect to the timecard, Juror No. 6 stated Juror No. 11 had said, "I don't think a Hispanic person would do that kind of thing." Juror No. 6 said Juror No. 11 seemed groggy at times.
Juror No. 7 said Juror No. 11 had said, "I had my mind made up before I already came in here." Juror No. 7 also said another juror had similar thoughts.
Juror No. 8 said two jurors, other than Juror No. 11, had said they had entered deliberations with "certain things already happening in their head." Juror No. 8 said Juror No. 11 had made the timecard remark, and once sat with his eyes closed, although he was not necessarily asleep.
Juror No. 9 said Juror No. 11 seemed less open-minded than the other jurors, but acknowledged he was engaging in the deliberative process. Juror No. 9 also said Juror No. 11 made the timecard remark, and fell asleep a few times.
Juror No. 10 reported Juror No. 11 said he had entered deliberations already having decided the case, but then "recanted." Juror No. 10 stated Juror No. 11 said that nobody would falsify a timecard; she did not hear him specify Hispanics. Juror No. 10 said Juror No. 11 had once fallen asleep.
Juror No. 12 admitted he had said during deliberations that he was "pretty sure" what his decision would be before deliberations had started. Juror No. 12 recalled the timecard remark, but could not remember who made it. Juror No. ...