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Eddie Carrillo v. Martin Biter

February 3, 2012


The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge


Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on July 24, 2009, and amended to name a proper Respondent on August 17, 2010. Respondent filed an answer to the petition on December 22, 2010, and lodged portions of the state record in support of the answer. Petitioner did not file a traverse.

I. Substitution of Martin Biter as Respondent Respondent answered on behalf of Respondent James A Yates, Warden of Pleasant Valley State Prison, where Petitioner was incarcerated at the time the petition and answer were filed. Petitioner subsequently filed a notice of change of address on September 29, 2011, reflecting that Petitioner's present custodial institution is the Kern Valley State Prison (KVSP).

Title 28 U.S.C. § 2242 provides that a petition for writ of habeas corpus shall allege the name of the person who has custody over the applicant. Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules) provides that if the petitioner is currently in custody under a state court judgment, the petition must name as respondent the state officer who has custody. A failure to name the proper respondent destroys personal jurisdiction. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). The warden of the penitentiary where a prisoner is confined constitutes the custodian who must be named in the petition, and the petition must be filed in the district of confinement. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003).

Fed. R. Civ. P. 25(d) provides that when a public officer who is a party to a civil action in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending, the officer's successor is automatically substituted as a party. It further provides that the Court may order substitution at any time, but the absence of such an order does not affect the substitution.

The warden at KVSP is Martin Biter.

Accordingly, it IS ORDERED that pursuant to Rule 25(d), Warden Martin Biter is SUBSTITUTED as Respondent.

II. Jurisdiction

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).

Petitioner, an inmate of the KVSP at Delano, California, claims that he suffered violations of his rights under the Constitution in the trial and sentencing proceedings that resulted in the judgment challenged in the petition. Thus, violations of the Constitution are alleged.

Further, Petitioner was convicted and sentenced in the Superior Court of the State of California, County of Madera, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a), 2241(a), (d).

As previously noted, Petitioner has named as a respondent a person who had custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

Accordingly, the Court concludes that it has jurisdiction over the proceeding and over the Respondent.

III. Procedural Summary

On November 14, 2006, a jury found Petitioner guilty of attempted murder in violation of Cal. Pen. Code §§ 664, 187, and the jury further found that Petitioner had personally used a firearm and had personally and intentionally discharged a firearm and caused great bodily injury in the commission of the offense within the meaning of Cal. Pen. Code §§ 12022.53(b)-(d) and 12022.7(a). The jury also found Petitioner guilty of assault with a firearm in violation of Cal. Pen. Code § 245(a)(2) and found that he had personally used a firearm and had personally inflicted great bodily injury in the commission of the crime in violation of Cal. Pen. Code §§ 12022.5(a) and 12022.7(a). The findings concerning the enhancements caused the substantive offenses to become serious felonies within the meaning of Cal. Pen. Code § 1192.7(c)(8). In a bifurcated proceeding, the jury found that Petitioner had suffered a prior serious felony conviction within the meaning of Cal. Penal Code §§ 667(b)-(i) and 667.5(b). (LD*fn1 1 [Clerk's Transcript on Appeal, Volume One], 143-144, 177-186.)

On February 13, 2007, the court sentenced Petitioner to life in prison with the possibility of parole for the attempted murder plus a consecutive term of twenty-five (25) years to life for the firearm enhancement pursuant to Cal. Penal Code § 12022.53(d)).

(LD 1, 227.) The other count and enhancements were stayed pursuant to Cal. Pen. Code § 654. (Id.)

On February 21, 2007, Petitioner timely appealed to the California Court of Appeal, Fifth Appellate District (DCA), in case number F052304. (LD 1, 232, 240.) After briefing by the parties (LD 2 [Petitioner's op. brief], LD 3 [People's resp. brief], LD 4 [Petitioner's reply brief]), the DCA affirmed Petitioner's conviction and sentence in an unpublished, reasoned decision filed on February 26, 2008. (LD 5.)

On March 28, 2008, Petitioner filed a petition for review with the California Supreme Court in case number S162175. (LD 6.) Review was summarily denied on June 11, 2008. (LD 7.)

On July 21, 2009, Petitioner filed a petition for writ of habeas corpus with this Court. (Doc. 1.)*fn2

IV. Factual Summary

When more than one state court has adjudicated a claim, this Court will analyze the last reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991). Even where procedural default is not an issue, the decision in which the state court last explained its reasons for the decision must be identified in order to analyze the state court decision pursuant to 28 U.S.C. § 2254(d)(1). Barker v. Fleming, 423 F.3d 1085, 1092 n.3 (9th Cir. 2005); Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003). Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim are presumed to rest upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Thus, where the California Supreme Court denies a habeas petition or petition for review without citation or comment, a district court will "look through" the unexplained decision of that state court to the last reasoned decision of a lower court as the relevant state-court determination. Ylst v. Nunnemaker, 501 U.S. at 803-04; Taylor v. Maddox, 366 F.3d 992, 998 n.5 (9th Cir. 2004). A petitioner has the burden to overcome or rebut the presumption by strong evidence that the presumption, as applied, is wrong. Ylst, 501 U.S. at 804.

Here, the last reasoned decision was the decision of the DCA on direct appeal.

In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004). The following factual summary is taken from the opinion of the DCA in Case number F052304, filed on February 26, 2008. (LD 5, 2-9.) See, Galvan v. Alaska Dep't. Of Corrections, 397 F.3d 1198, 1199 n. 1 (9th Cir. 2005) (setting forth a factual summary from the state appellate court's decision).

On June 19, 2006, Carlos Urbano, was residing with his aunt in Madera. Around 9:00 or 9:30 p.m., Urbano was sitting in a little shack behind the house, fixing a weed eater. The room was well lit.

As Urbano was working on the weed eater, defendant walked into the shack. It appeared defendant was handing him a soda bottle. But as Urbano looked up, he saw defendant raise up the plastic bottle, felt a blast, and realized he had been shot. Urbano felt a twitch below his right eye. He was then shot again on the right side of the face. He got up ran out of the room. He had to rush around defendant to get to the door. Defendant then shot him a third time in the chest. As Urbano was running through the door, he was shot again in the back. Urbano remembered falling in the driveway, and waking up a few minutes later and making it into the carport, between the storage shed and the house.

After regaining consciousness in the carport, Urbano walked inside the house. He went through the kitchen and then fell down in the dining area. His young cousins, who had been watching television, discovered him. At this time, Urbano felt a burning sensation in his face. His little cousin started screaming, and his aunt, who had been outside talking on the phone, came in. She asked him what happened. Urbano told her "Eddie shot me."

Urbano remembered waking up in the hospital. He was there about a week and had surgery on his face. He had another surgery about a month later, where a plate was placed beneath his right eye because it was dropping. As a result of his injury, his right eye was currently bigger than his left eye. He also described having sleep problems, cold sweats, pain in his jaw, pain in his eye, and "heart pains." In addition, Urbano experienced stuttering and memory problems.

Urbano testified he had known defendant all his life and had never had any problems with him before the day of the shooting. Defendant did not say anything when he shot Urbano. Urbano was very surprised that his cousin shot him.

Urbano admitted he consumed methamphetamine and marijuana the day before the shooting but stated he was not under the influence when he was shot and was able to recognize who shot him.

Urbano saw defendant earlier that day around lunchtime. Urbano testified that, besides defendant, there was one other Eddie Carrillo in his family, his dad's sister's son, who was about 50 years old and lives in Sacramento. This Eddie was not present the day of the shooting and Urbano had not seen him for many years. Defendant's son is also named Eddie but he is only a child. Urbano could not recall whether defendant's son was present the day of the shooting but confirmed he would be able to tell them apart. Urbano had no doubt defendant was the one who shot him.

When Urbano was in the shack working on the weed eater, he was not alone. Sammy, a friend of Urbano's cousin, Andrew Rodriguez, was sitting on the couch about four to five feet from Urbano. Urbano confirmed that defendant, not Sammy, shot him. Sammy and defendant do not look alike. Urbano did not know Sammy very well and he was unaware of his current whereabouts. There was also somebody sitting by Sammy. Urbano did not know him or his name. He was about 19 years old, medium height, and thinner than defendant. He had come there with Sammy.

Urbano testified that he had once been a "northerner" or member of the Norteno gang, but he no longer participated in the gang. Urbano testified he had prior criminal convictions, including a misdemeanor petty theft in 1994 and felony petty theft with a prior in 2000. He was incarcerated at Corcoran for about two years. He was not a member of a gang prior to entering prison but joined the gang after he went into prison. He quit the gang while he was still in prison because he was "[t]ired of the whole system."

Urbano testified it did not feel safe to say anything about the gang and that he was "very uncomfortable" with the prosecutor's questions. When he quit the gang, he requested to be housed with other dropouts. It would be quite dangerous to stay housed with Nortenos after dropping out of the gang. When he talked to the prison authorities, he was "PCed up" which means he got "[p]rotected custody."

Urbano had a fight with a Norteno about a week before the shooting. When asked what the fight was about, he testified: "I don't know. Probably we just fucked up drinking. Excuse my language. Yeah, probably we were drinking." Urbano did not think the fight was so serious that it would result in somebody coming to shoot him. The only person he told about the fight was his cousin, Andrew Rodriguez.

Madera Police Officer George Yang responded to the shooting. He entered the house with Officer Louis Reyes and observed Urbano lying in the kitchen. Urbano had been shot and his face was covered with a towel.

Officer Reyes asked him what happened. Urbano said he had been shot by his cousin, Eddie Carrillo. Urbano advised the officers he had been shot in the backyard. Urbano did not appear to Officer Yang to be under the influence of drugs because of his ability to answer the officers' questions about what happened.

Urbano's aunt, Elizabeth Rodriguez, testified she was at the house on June 19, 2006. At 9:30 p.m., Rodriguez was in her front yard, watering the grass and talking to her sister on the phone. Her grandchild called her inside the house, saying there was something wrong with Urbano. Rodriguez went inside the living room, walked into the dining room, and found Urbano lying on the floor. Urbano had blood on his face and was moaning. He told Rodriguez that "Eddie" shot him. She had seen defendant at her house earlier in the backyard. She was unaware of any problems between defendant and Urbano. As far as she knew, they got along.

Officer Louis Reyes testified that when he was dispatched to the residence, he observed Urbano lying on his back in the dining room area. A blood-stained towel covered his face. There was blood on his clothing and on the floor beneath him. He appeared to be injured and in pain. Officer Reyes asked him what happened, and Urbano said, "he shot me." When the officer asked who shot him, Urbano responded, "Eddie Carrillo." Officer Reyes asked him who Eddie Carrillo was. Urbano answered, "my cousin." Officer Reyes asked Urbano how many times he was shot. Urbano lifted up his left arm and showed him either four or five fingers, and then put his arm down. Officer Reyes asked Urbano why defendant shot him, and said he did not know. When the officer asked again, Urbano started to complain about pain. Urbano did not act like somebody under the influence of drugs but was very coherent.

Dr. John Bilello, MD, the attending trauma surgeon at University Medical Center in Fresno, treated Urbano after the shooting. Dr. Bilello testified that Urbano had gunshot wounds to the face and upper torso, a gunshot wound under the right eye, and one in the upper right chest. Before Urbano saw Dr. Bilello, he was likely given an opiate called Fentanyl for his pain. No bullets were recovered from Urbano's body, but a CT scan showed bullet fragments in his neck, near the second cervical vertebra at the top of the neck. Dr. Bilello thought the floor of Urbano's right eye socket had been damaged and had to be repaired at a later date.

Madera Police Detective Chuck Smith testified that he had experience with a plastic bottle being used as a silencer during his special training. His instructor demonstrated how certain objects, including "PVC pipe, two-liter and one-liter plastic bottles, common soda bottles [could be used] to fit the end of a variety of pistols, nine millimeter all the way down to .22 caliber." Detective Smith actually shot a handgun using a plastic bottle. The result was a noticeable reduction in the report of the shot. Based on his experience and training, he opined that a plastic bottle can be an effective silencer.

Elizabeth Rodriguez's son, Andrew Rodriguez, testified that on the night of the shooting, he had just come back from a girl's house and was going to borrow his cousin's truck and return to the girl's house, when he heard his mother screaming. Andrew ran around the house and entered through the backdoor. He saw Urbano on the floor with blood all over him. Andrew grabbed a towel and put it on Urbano's face and then called 911. Andrew asked Urbano what happened. Andrew just remembered Urbano saying, "[h]e shot me, he shot me." Andrew could not remember what he told Officer Reyes except this and that he put a towel over Urbano's face.

Officer Reyes was recalled as a witness. According to Officer Reyes's testimony, when he spoke to Andrew the night of the shooting, Andrew said that when he asked Urbano what happened, Urbano responded: "Eddie shot me." Officer Reyes testified when he was questioning witnesses that night, he always referred to "Eddie Carrillo" to make sure they knew he was talking about defendant. He never just said "Eddie." No one ever corrected him or said he had the wrong person.

Madera Police Officer Michael Kutz testified that on the night of the shooting, defendant turned himself in to the sheriff's department. Officer Kutz went to the sheriff's department and custody of defendant was turned over to him. Officer Kutz handcuffed defendant, put him in the back of his patrol car, and transported him to the jail. The officer advised defendant he was being arrested for attempted murder. While they were in the process of booking defendant, defendant asked Officer Kutz, "Did you guys make a big deal of this?" Officer Kutz described defendant's demeanor as "very nonchalant" and "kind of arrogant."

Herminio Sauceda of the Madera County Department of Corrections was the prosecution's gang expert. Sergeant Sauceda testified that for the past 10 years, he has been involved in the classification of inmates to be housed in their facility. Sergeant Saucedo testified to his familiarity with the Norteno and Sureno criminal street gangs, whose members must be separated from one another for their safety. Dropouts or nonaffiliated gang members are also separated from active ones.

Sergeant Sauceda opined that defendant was a member of the Norteno gang. The bases of his opinion are discussed in greater detail below. Sergeant Sauceda further opined that Urbano was a Norteno gang member until 2002. Urbano's current status was that of a dropout. Sergeant Urbano (sic)*fn3 testified he was aware that a "bad news list" was found at Corcoran State Prison. Twenty to 30 people from Madera County were on the list. Each was identified by their California Department of Corrections number (CDC number) and moniker, which is the street name they are given when they are "jumped in" to the gang. Urbano's moniker is "Shotgun" and is tattooed to the back of his neck. Urbano was listed on the hit list by his moniker, his CDC number, and the town of Madera.

Urbano (sic) explained that the Nortenos are highly organized within the jail system. When they first enter, they are contacted by the "shot-caller" and required to memorize, within 60 to 90 days, a two-page code of conduct called "14 bonds." When they get out of prison and a Norteno asks them to recite the bonds, they should be able to repeat them quickly. Members in and out of the prison system communicate via "micro writing" on small pieces of rolled up paper. A "bad news list" is a list that usually comes from the state prison, where an individual's name appears because he broke one of the codes, such as ratting on a fellow Norteno, having an affair with another Norteno's spouse, or committing a crime against another Norteno family.

Frequently, the bad news list includes individuals who no longer want to be affiliated with a gang or were given an assignment to assault someone and refused. At that point, they will go on the list, which goes up to the ranking Norteno in the facility. He puts the information on micro writing and it goes from that prison to another prison, or to people out on the street. The bad news list is essentially a "hit list" but the gang members do not refer to it as such. Instead, they call it "the green light." "They say, man, there is a green light on me, which means it's a go for anybody who sees this individual on the streets, then they have a green light to assault him." Sergeant Sauceda confirmed the list is the equivalent of being an order to attack any person whose name appears on the list. A dropout will be placed on a bad news list, "[b]ecause he just disrespected the Nortenos by refusing to be affiliated any longer. It's a blood in, blood out."

When asked if it would benefit a gang to take a hit on a dropout, Sergeant Sauceda testified: "It would benefit a gang because if you take a dropout out, it's only setting the example for those that are current, those that are associated at this time. They know already that if they drop out the same thing is going to happen to them. It's kind of an intimidation, a threat factor."

Sergeant Sauceda explained the process of dropping out of a gang in prison. The dropout must go to the classification unit, and undergo a "debriefing," where they sit down with one of the officers and basically go through their whole criminal history, from when they first started with the gang. Thus, the dropout has to essentially identify crimes he has committed, known gang members and their rank structures, any kind of codes he knows of, and any kind of hits that may be coming. He is then placed in protective custody for his own safety.

Sergeant Sauceda testified that a gang member could elevate his standing in the gang by attacking a family member who was on the dropout list or hit list. "It just shows the loyalty to the gang. The way they see it is if you are willing to commit a crime or a violent crime against their own family member there is nothing else you wouldn't do for that gang."

Sergeant Sauceda opined that, assuming an active gang member attempted to murder a dropout of the same gang or somebody on a hit list of the gang, using a firearm, it would benefit the gang: "[T]he gang uses that as an intimidation for the ones that are presently with a gang so that they don't have any thoughts about moving out of the gang because if they do then the same thing is going to happen to them." The status of the person who attempted the hit would also be bolstered. It would have the other members thinking of him as a leader and as one who is loyal to the gang.

Petitioner did not testify, and the defense did not present any affirmative evidence. (LD 14, 1841-44.)

V. Standard and Scope of Review

Title 28 U.S.C. § 2254 provides in pertinent part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 412 (2000). It is thus the governing legal principle or principles set forth by the Supreme Court at the pertinent time. Lockyer v. Andrade, 538 U.S. 71-72.

A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The state court need not have cited Supreme Court precedent or have been aware of it, "so long as neither the reasoning nor the result of the state-court decision contradicts [it]." Early v. Packer, 537 U.S. 3, 8 (2002). A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407. An application of clearly established federal law is unreasonable only if it is objectively unreasonable; an incorrect or inaccurate application is not necessarily unreasonable. Williams, 529 U.S. at 410.

A state court's determination that a claim lacks merit precludes federal habeas relief as long as it is possible that fairminded jurists could disagree on the correctness of the state court's decision. Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011). Even a strong case for relief does not render the state court's conclusions unreasonable. Id. In order to obtain federal habeas relief, a state prisoner must show that the state court's ruling on a claim was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87. The standards set by § 2254(d) are "highly deferential standard[s] for evaluating state-court rulings" which require that state-court decisions be given the benefit of the doubt, and the Petitioner bear the burden of proof. Cullen v. Pinholster, 131 S. Ct. at 1398.

In assessing under section 2254(d)(1) whether the state court's legal conclusion was contrary to or an unreasonable application of federal law, "review... is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S. Ct. at 1398. Evidence introduced in federal court has no bearing on review pursuant to § 2254(d)(1). Id. at 1400.

VI. Discharge of Juror Number Four

Petitioner argues that the trial court violated his Fifth, Sixth, and Fourteenth Amendment rights to a trial by a fair and impartial jury and a unanimous verdict when the court discharged juror number four during deliberations. Petitioner contends that juror number four was discharged without good cause and because of the juror's view of the evidence, which was that the evidence was insufficient to prove an attempted murder. (Pet. 29, 35-42.)

A. Factual Background

The following summary of the proceedings concerning juror number four is taken from the DCA's opinion:

The jury retired to deliberate on Thursday, November 9, 2006 at 2:55 p.m. Their deliberations concluded for that day at 4:24 p.m. The foreperson stated that the jury would return Monday morning to continue deliberations. Juror No. 8 was subsequently excused, after she explained to the court she would be unable to obtain child care the following week.

The jury returned to the court Monday, November 13, 2006. The alternate juror was sworn, and the court instructed the jurors as follows:

"One of your fellow jurors has been excused and an alternate juror has been selected to join the jury. Do not consider the substitution for any purpose. The alternate juror must participate fully in the deliberations that lead to any verdict. "The People and the defendant have the right to a verdict reached only after full participation of the jurors whose votes determine that verdict. This right will only be assured if you begin your deliberations again from the beginning. Therefore, you must set aside and disregard all past deliberations and begin your deliberations all over again. Each of you must disregard the earlier deliberations and decide this case as if those earlier deliberations had not taken place."

The jury retired to deliberate at 8:50 a.m. Around 11:23 a.m., the court announced that it had received two notes. One note from Jurors No. 4 and 7, marked as Court's Exhibit 12, read:

"We feel that we are the only two jurors having to explain our decision. We feel it's us against the other ten jurors. Our decision is not being respected. I feel like we are being harassed and intimidated, persuaded to change from verdict to the other. It is very unfair and unprofessional and disrespectful to us. We need your guidance to help us with this further."

The other note, marked Court's Exhibit 13 and signed by the remaining jurors, read:

"We have not discussed the evidence fully and they have stated they are already decided and one stated he or she will not change his or her mind and feels like we are putting them through the ringer when we ask them to explain their position. We have not polled the jurors yet today."

The court called in the jury foreperson and asked her whether the ten jurors in the jury room "would be willing to talk with and deliberate with and share their views with the two jurors" who were then in the bailiff's office. The foreperson answered: "I don't think any of us that are in there would have a problem with that at all."

The court then called in Juror No. 4. In language similar to its earlier charge to the jury, the court restated the juror's duty to deliberate.*fn4 The court then asked Juror No. 4 if she felt she was willing to do that. The following colloquy ensued:

"JUROR NO. FOUR: I can, your Honor. And I've been trying to. But it's-it's difficult when the other ten members are not willing to listen to you and, you know, it's very unprofessional and very disrespectful the way things are being handled. And I'm very disappointed with that. "THE COURT: Okay. If they take steps to engage in more open discussions with you and listen to you, would you be willing to then go back into the jury room with them and deliberate with them? "JUROR NO. FOUR: No. Because we don't seem to be getting anywhere. It seems to me that they are trying to persuade myself and the other juror. "THE COURT: Don't tell us what-just talk about conduct, not what-"JUROR NO. FOUR: Conduct. It's very, it's very uncomfortable, very uncomfortable, very unprofessional and very hostile in there. "THE COURT: All right. What should they-what should the foreperson be doing in your opinion in terms of controlling the conduct? "JUROR NO. FOUR: She should be-I believe she should be telling the other juror members to respect our decision and based upon what we are talking about in there, but that's not happening and we are being attacked basically in there. And it's very uncalled for. "THE COURT: All right. Are you willing to listen to the other jurors' opinions about the evidence or ideas about what the evidence shows? "JUROR NO. FOUR: At this point, no. Because we are not-going back to earlier from the last week, we are not getting anywhere. "THE COURT: Has the jury started all over again with the new juror? "JUROR NO. FOUR: Yes, we did. That's when I had to buzz the bailiff earlier. Because it was very uncomfortable and I felt like I was the one put on trial earlier and it's just very uncalled for and very unprofessional.

"THE COURT: All right. So if they are willing to listen to your views politely, would you be willing to go back in? "JUROR NO. FOUR: No. Because I already tried to explain my views about the whole case. I'm not going to say anything else. But they are not willing to listen to what I tried to say and they are just very closed minded and the more I say about my decision on the case the more closed minded they are, and, I mean, there is ten in there. It's like, you know, it's very uncomfortable, very uncomfortable. "THE COURT: Are you willing to listen to their views? "JUROR NO. FOUR: No."

Next, the court called in Juror No. 7, and asked if the juror was willing to go back into the jury room if the other jurors were willing to listen to the juror's views. This followed:

"JUROR NO. SEVEN: At this point, your Honor, I'm not sure if it would make a difference. I honestly don't believe it's going to make a difference. "THE COURT: I don't want you to tell us about the deliberations, meaning I don't want you to tell us what your opinion is or what someone else's opinion is. We are just going to talk about conduct. "Did the jury start deliberating anew this morning when Juror No. Eight joined them? "JUROR NO. SEVEN: Yes. "THE COURT: All right. And has a vote even been taken this morning at all? "JUROR NO. SEVEN: No. "THE COURT: All right. What could the other jurors do, what could they change about what they are doing that would then-that you would then be willing to go back and discuss your views and listen to theirs? "JUROR NO. SEVEN: That's hard to answer. I'm not sure if there is anything they can do. It's people have a difference of opinion and there is no coming together at all. It's a black and a white issue and that's it. And that's the way I feel. I don't feel like-it just feels like myself and Juror No. Four are just being kind of attacked us feeling the way we do and so I don't know if that will ever be reasoned out at all putting us back together. I don't know how to answer that. "THE COURT: Okay. It is very important that as a juror you not be an advocate for one side or the other, but you are an impartial judge of the facts. It's important that everyone in the jury room be given the opportunity to express their views on the evidence and try to come to an agreement on a verdict if they can. It is important that they listen to each other and treat each other with respect. "JUROR NO. SEVEN: I believe that everybody is listening in the room, but I don't believe the respect has been given. "THE COURT: How did the other jurors-in terms of conduct, how do they show lack of respect? Are they just refusing, are they turning their back to you when you talk? "JUROR NO. SEVEN: They are wanting us to explain ourselves and they are not having to explain themselves. "THE COURT: Okay. So if they agree to listen to your explanation, would you then agree to listen to theirs? And if they agree to give their explanation. "JUROR NO. SEVEN: I would be willing to do whatever we needed to do to come to some sort of decision. "THE COURT: All right. And my understanding, and maybe it's wrong, just correct me if I'm wrong, is at some point in time a juror walked out-buzzed and told the bailiff that she wanted out of the jury room. Was that you or Juror No. Four or both of you? "JUROR NO. SEVEN: Juror Four. "THE COURT: Juror Four. And then you decided to go with her? "JUROR NO. SEVEN: I was called to go with her.

"THE COURT: Who called you to go with her? "JUROR NO. SEVEN: Deputy Roth. I believe per Juror No. Four wanted. "THE COURT: All right. "JUROR NO. SEVEN: Because our beliefs were the same. She wanted ...

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