United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
EDMUND
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.
Petitioner
is a California state prisoner who, proceeding with counsel,
brings an application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He was convicted in the Solano County
Superior Court of second degree murder (Pen. Code § 187,
subd. (a)) and firearm enhancements (§§ 12022.53
(b)-(d)). The instant habeas petition raises three claims.
First, petitioner argues that the state court erred when it
concluded that his constitutional rights were not violated in
light of a juror's prejudicial statements during
deliberations. Second, he argues that the state court of
appeal unreasonably concluded that the jury's discussions
regarding his failure to testify did not amount to federal
constitutional error. Third, petitioner argues that the state
court of appeal unreasonably concluded that the instructions
on involuntary manslaughter did not relieve the prosecution
of its burden of proof on the issue of malice.
For the
reasons stated below, it is recommended that the petition be
denied.
FACTUAL
BACKGROUND
Both
petitioner and the respondent accept[1] (and reproduce in their
briefs) the state court of appeal's summation of the
facts. ECF No. 1 at 16; ECF No. 19-1 at 9. The court has
reviewed the record and, having done so, finds nothing
therein that clearly and convincingly rebuts the summation.
See Moses v. Payne, 555 F.3d 742, 746 n. 1 (9th Cir.
2009) (“Because this initial statement of facts is
drawn from the state appellate court's decision, it is
afforded a presumption of correctness that may be rebutted
only by clear and convincing evidence.”). Thus, the
summation is reproduced here:
Prosecution Case
On October 23, 2012, at around 7:00 or 8:00 p.m., Moore
invited his friend, Timothy W., over to play a video game.
Timothy walked to Moore's house in Suisun City. When
Timothy arrived at Moore's house, he walked in through
the open front door, used the restroom, then returned to the
living room and sat down in a tan recliner. Moore was
standing by a blue recliner. Brown, who was a friend of
Moore's and the girlfriend of Timothy's uncle, was
sitting on the couch.[2] Brown and Moore were acting friendly.
Moore asked Brown to make him a burrito. She agreed and went
to the kitchen. Meanwhile, Moore received a text message from
his ex-girlfriend, which he showed to Timothy. Immediately
thereafter, Moore looked “sad” and
“down.” Timothy asked, “can we play the
game now[?]” Brown returned from the kitchen, handed
Moore a plate with the burrito, and sat down again on the
couch. Moore put the plate down and picked up a bottle of
tequila, which he guzzled “like it was water.”
Moore's sister called and asked to borrow a tool. After
Moore refused, his sister hung up. Moore said, “my
family hates me” and guzzled more tequila, still
appearing sad.
While remaining seated in the recliner, Moore began playing
with a butterfly knife. Timothy told Moore, who was two or
three feet from him, not to play with the knife because it
could “fly out of his hand and cut one of us.”
Brown said, “‘he's not going to cut
me.'” The knife fell out of Moore's hand and
dropped to the floor. Moore stood up and went to a corner of
the room, where he picked up a rifle without saying
anything.[3] Moore held the rifle with two hands and
banged the barrel of the rifle against his head twice.
Timothy, who was still seated in the tan recliner, told
Moore, “put the gun down.” Moore did not and,
while standing about one foot away from Brown, aimed it at
Brown's front left side. Moore was still using both hands
to hold the rifle-one hand was on the front of the gun and
the other was on the trigger. Timothy told Moore to take his
finger off the trigger. Brown said, “‘he's
not going to shoot me.'” Moore “fired the
gun.”[4]
Timothy asked Moore: “Did you shoot her? Did you shoot
her? Like are you playing? Are you playing?” After
being shot, Brown stood up and said, “‘this
mother fucker shot me.'” She slumped and held her
side. Moore dropped the rifle, went to Brown, and attempted
to stop the bleeding and give her cardiopulmonary
resuscitation. Fearing for his own life, Timothy ran to his
uncle's house a few blocks away. Because Timothy did not
have a cell phone, he called 911 from his uncle's home,
telling the dispatcher he witnessed “a white guy”
shoot “a black female.” After calling 911,
Timothy called his mother and asked her to drive him back to
Moore's house. There, Timothy told police he witnessed
the shooting.[5]
Police Investigation
At 8:19 p.m., Moore called 911, telling the operator he
killed someone by “accident” and had tried to
give her cardiopulmonary resuscitation, but she was going to
die. The dispatcher could not understand Moore and hung up
after 30 seconds. Moore called back a minute later.
When Suisun City Police Department Officers James Sousa and
David O'Brien arrived at the scene, Moore was standing in
the doorway, smoking a cigarette, and talking on a phone.
Moore was “frantic, confused, crying, ” and had
blood on his hands. On the living room floor, Sousa and
O'Brien found Brown's unresponsive body. Brown had
been shot in the chest above her left breast. A video game
controller was found on the tan recliner and a bottle of
tequila was found nearby.
The police officers searched “[e]verywhere” for a
firearm-inside the house, inside the garage, and outside. It
was dark, but Sousa used a flashlight to search the front
yard, the backyard, as well as the side yard between
Moore's house and a neighbor's house to the east.
O'Brien searched the side yard on the west side of the
house. No weapon was located.
Later that night, while in a holding cell at the police
station, Moore banged on his cell door and spontaneously told
a police officer, “I killed her. I did it. He ain't
got nothing to do with it.” Moore repeatedly said it
was an accident and he did not mean for it to happen. Later,
when the same officer transported Moore to county jail, Moore
again said the shooting was an accident. Moore, who appeared
to be under the influence of alcohol, also said he was going
to jail for a long time “because that's what
happens when you kill someone.” Forensic pathologist,
Susan Hogan, M.D., determined Brown died from a gunshot wound
to the chest. Hogan did not observe any soot or stippling on
Brown's clothing or body, which she would expect to see
if the gun was fired within three feet of the victim.
Defense Case
Moore's next door neighbor came home from his night shift
early in the morning on October 24, 2012. Using a flashlight,
he looked over Moore's front yard for five minutes but
did not see a gun. Around noon, the neighbor went back
outside and saw a rifle in Moore's front yard. Police
collected the weapon. No latent fingerprints were found on
the weapon, a .22-caliber rifle. The rifle had water spots on
it that could have been produced by someone cleaning it. Low
level DNA mixtures were found on the rifle, but the samples
were insufficient for interpretation.
On the night of the shooting, both Moore and Timothy were
tested for the presence of gunshot residue.[6] The results were
positive for each. As gunshot residue can be found on a
person's hands after firing a weapon or being in the
vicinity of a fired weapon, the shooter's identity could
not be determined. A blood sample was also taken from Moore
at around 10:50 p.m. on October 23. The sample showed Moore
had a 0.33 percent blood alcohol concentration (BAC).
The defense firearms expert, criminalist Peter Barnett,
examined the rifle and observed it had an intermittent
problem where the trigger could be cocked simply by rotating
the bolt, rather than pulling it back.[7] Barnett's
test of the rifle's trigger pull showed it requires three
pounds of pressure to pull the trigger, which is somewhat
lighter than in similar weapons. Barnett opined that if a
person were to hold the rifle in the standard way with his
finger on the trigger, and another person yanked it out of
his hands with a sudden motion, that action could cause
sufficient force for the gun to discharge.
Psychiatrist Randall Solomon, M.D., testified as an expert
regarding the effects of alcohol on the brain and memory.
Solomon testified alcohol can impact memory after as little
as two drinks, but the more a person drinks, the more likely
it will cause memory problems, such as a
“blackout”-a type of amnesia that happens when
short-term memories do not get encoded as long-term memories.
Short-term memory is not affected by alcohol. A person can
still function during a blackout and observers might not know
it is happening. Fragmentary blackout is the most common
type. It creates holes in memory that a person might not be
aware of until asked about something he cannot remember. A
complete blackout is a period of no memory at all.
At 0.3 percent BAC, Solomon opined there would be a greater
than 50 percent chance of a blackout. Not everyone would
experience blackout at that BAC, but drinking very rapidly
would also increase the probability. If BAC was at that level
three hours after a person stopped drinking, his or her BAC
necessarily would have declined to that level from an
earlier, higher BAC. If someone was able to remember details
an hour or three hours later then he would not have been in a
complete blackout, unless he had been rehearsing these
details in his short term memory the entire time.
Moore's friend, Rashaun M., [8] testified that on the night
of the shooting he was at a hospital in San Francisco with
his daughter. Rashaun received a phone call from his family
that night, during which he spoke to Timothy about what
happened. Timothy did not mention a gun. After learning Brown
had been shot, Rashaun told Timothy to go back to Moore's
house and call the police. Sometime later, Rashaun saw
Timothy in person. Timothy then told Rashaun that, when Moore
dropped the gun, Timothy picked it up, hopped over the couch,
and ran with it to his uncle's home.
Six character witnesses testified they knew Moore to be
peaceful, reliable, generous, trustworthy, protective, and
honest.
People's Rebuttal Case
Angela M., Rashaun's aunt and Timothy's mother,
testified she had been sitting outside the courtroom with
Timothy during Moore's trial. Rashaun approached her and
said he was going into the courtroom. When Angela asked him
not to, Rashaun said, “Auntie, I don't give an
‘F' about [Brown].” He added, “If I get
called as a witness, I'm going to lie for my partner, to
get my partner off.”
Instructions and Closing Argument
The trial court repeatedly informed the jury of Moore's
constitutional right not to testify and that no negative
inference could be drawn from Moore's exercise of the
right.[9] The jury also received instructions, among
others, on premeditated first degree murder, express and
implied malice second degree murder, accidental homicide, and
involuntary manslaughter. Moore also requested, and received,
an instruction that if, while unconscious as the result of
voluntary intoxication, he killed without malice or intent to
kill, the crime was not murder, but involuntary manslaughter.
The jury was also instructed, as to crimes requiring specific
intent, that it could consider the effect of Moore's
voluntary intoxication, if any, when determining whether he
formed such intent.
During closing argument, the prosecutor maintained Moore was
guilty of either first or second degree murder. The People
relied on both express and implied malice theories, arguing
that Moore's words and actions-aiming the rifle at
Brown's chest and pulling the trigger after being warned
to put the gun down and take his finger off the
trigger-showed either intent to kill or conscious disregard
for human life.
Defense counsel contended Moore's behavior after the
shooting was inconsistent with malice and showed the shooting
was an accident or that, at most, Moore was guilty of
involuntary manslaughter if he was either criminally
negligent or unconscious due to voluntary intoxication.
Counsel also claimed the jury could find the shooting was
accidental by inferring Timothy's involvement in a
struggle over the rifle. In rebuttal, the prosecutor argued
the defense's theory of the case was inconsistent with
the evidence.
Verdict
The jury found Moore not guilty of first degree murder,
convicted him of second degree murder, and found the firearm
enhancements true. Moore filed a motion for new trial, which
was denied after an evidentiary hearing. The trial court
sentenced Moore to an indeterminate term of 40 years to life
in state prison. A timely notice of appeal followed.
ECF No. 20-9, Ex. C, at 2-8.
STANDARDS
GOVERNING HABEAS RELIEF UNDER THE AEDPA
I.
Applicable Statutory Provisions
28
U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
provides in relevant part as follows:
(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.
Section
2254(d) constitutes a “constraint on the power of a
federal habeas court to grant a state prisoner's
application for a writ of habeas corpus.” (Terry)
Williams v. Taylor, 529 U.S. 362, 412 (2000). It does
not, however, “imply abandonment or abdication of
judicial review, ” or “by definition preclude
relief.” Miller El v. Cockrell, 537 U.S. 322,
340 (2003). If either prong (d)(1) or (d)(2) is satisfied,
the federal court may grant relief based on a de novo finding
of constitutional error. See Frantz v. Hazey, 533
F.3d 724, 736 (9th Cir. 2008) (en banc).
The
statute applies whenever the state court has denied a federal
claim on its merits, whether or not the state court explained
its reasons. Harrington v. Richter, 562 U.S. 86,
99-100 (2011). State court rejection of a federal claim will
be presumed to have been on the merits absent any indication
or state law procedural principles to the contrary.
Id. at 784-785 (citing Harris v. Reed, 489
U.S. 255, 265 (1989) (presumption of a merits determination
when it is unclear whether a decision appearing to rest on
federal grounds was decided on another basis)). “The
presumption may be overcome when there is reason to think
some other explanation for the state court's decision is
more likely.” Id. at 785.
A.
“Clearly Established Federal Law”
The
phrase “clearly established Federal law” in
§ 2254(d)(1) refers to the “governing legal
principle or principles” previously articulated by the
Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 7172
(2003). Only Supreme Court precedent may constitute
“clearly established Federal law, ” but courts
may look to circuit law “to ascertain whether . . . the
particular point in issue is clearly established by Supreme
Court precedent.” Marshall v. Rodgers, 569
U.S. 58, 64 (2013).
B.
“Contrary To” Or “Unreasonable
Application Of” Clearly Established Federal
Law
Section
2254(d)(1) applies to state court adjudications based on
purely legal rulings and mixed questions of law and fact.
Davis v. Woodford, 384 F.3d 628, 637 (9th Cir.
2003). The two clauses of § 2254(d)(1) create two
distinct exceptions to AEDPA's limitation on relief.
Williams, 529 U.S. at 404-05 (the “contrary
to” and “unreasonable application” clauses
of (d)(1) must be given independent effect, and create two
categories of cases in which habeas relief remains
available).
A state
court decision is “contrary to” clearly
established federal law if the decision “contradicts
the governing law set forth in [the Supreme Court's]
cases.” Id. at 405. This includes use of the
wrong legal rule or analytical framework. “The
addition, deletion, or alteration of a factor in a test
established by the Supreme Court also constitutes a failure
to apply controlling Supreme Court law under the
‘contrary to' clause of the AEDPA.” Benn
v. Lambert, 283 F.3d 1040, 1051 n.5 (9th Cir. 2002).
See, e.g., Williams, 529 U.S. at 391, 39395
(Virginia Supreme Court's ineffective assistance of
counsel analysis “contrary to”
Strickland[10] because it added a third prong
unauthorized by Strickland); Crittenden v.
Ayers, 624 F.3d 943, 954 (9th Cir. 2010) (California
Supreme Court's Batson[11] analysis “contrary
to” federal law because it set a higher bar for a prima
facie case of discrimination than established in
Batson itself); Frantz, 533 F.3d at 734 35
(Arizona court's application of harmless error rule to
Faretta[12] violation was contrary to U.S. Supreme
Court holding that such error is structural). A state court
also acts contrary to clearly established federal law when it
reaches a different result from a Supreme Court case despite
materially indistinguishable facts. Williams, 529
U.S. at 406, 41213; Ramdass v. Angelone, 530 U.S.
156, 16566 (2000) (plurality op'n).
A state
court decision “unreasonably applies” federal law
“if the state court identifies the correct rule from
[the Supreme Court's] cases but unreasonably applies it
to the facts of the particular state prisoner's
case.” Williams, 529 U.S. at 407-08. It is not
enough that the state court was incorrect in the view of the
federal habeas court; the state court decision must be
objectively unreasonable. Wiggins v. Smith, 539 U.S.
510, 52021 (2003). This does not mean, however, that the
§ (d)(1) exception is limited to applications of federal
law that “reasonable jurists would all agree is
unreasonable.” Williams, 529 U.S. at 409
(rejecting Fourth Circuit's overly restrictive
interpretation of “unreasonable application”
clause). State court decisions can be objectively
unreasonable when they interpret Supreme Court precedent too
restrictively, when they fail to give appropriate
consideration and weight to the full body of available
evidence, and when they proceed on the basis of factual
error. See, e.g., Williams, 529 U.S. at 397-98;
Wiggins, 539 U.S. at 526 28 & 534; Rompilla
v. Beard, 545 U.S. 374, 388909 (2005); Porter v.
McCollum, 558 U.S. 30, 42 (2009).
The
“unreasonable application” clause permits habeas
relief based on the application of a governing principle to a
set of facts different from those of the case in which the
principle was announced. Lockyer, 538 U.S. at 76.
AEDPA does not require a nearly identical fact pattern before
a legal rule must be applied. Panetti v. Quarterman,
551 U.S. 930, 953 (2007). Even a general standard may be
applied in an unreasonable manner. Id. In such
cases, AEDPA deference does not apply to the federal
court's adjudication of the claim. Id. at 948.
Review
under § 2254(d) is limited to the record that was before
the state court. Cullen v. Pinholster, 131 S.Ct.
1388, 1398 (2011). The question at this stage is whether the
state court reasonably applied clearly established federal
law to the facts before it. Id. In other words, the
focus of the § 2254(d) inquiry is “on what a state
court knew and did.” Id. at 1399.
Where
the state court's adjudication is set forth in a reasoned
opinion, § 2254(d)(1) review is confined to “the
state court's actual reasoning” and “actual
analysis.” Frantz, 533 F.3d at 738 (emphasis
in original). A different rule applies where the state court
rejects claims summarily, without a reasoned opinion. In
Harrington, supra, the Supreme Court held
that when a state court denies a claim on the merits but
without a reasoned opinion, the federal habeas court must
determine what arguments or theories may have supported the
state court's decision, and subject those arguments or
theories to § 2254(d) scrutiny. Harrington, 562
U.S. at 101-102.
C.
“Unreasonable Determination Of The
Facts”
Relief
is also available under AEDPA where the state court
predicated its adjudication of a claim on an unreasonable
factual determination. Section 2254(d)(2). The statute
explicitly limits this inquiry to the evidence that was
before the state court.
Even
factual determinations that are generally accorded heightened
deference, such as credibility findings, are subject to
scrutiny for objective reasonableness under §
2254(d)(2). For example, in Miller El v. Dretke, 545
U.S. 231 (2005), the Supreme Court ordered habeas relief
where the Texas court had based its denial of a
Batson claim on a factual finding that the
prosecutor's asserted race neutral reasons for striking
African American jurors were true. Miller El, 545
U.S. at 240.
An
unreasonable determination of facts exists where, among other
circumstances, the state court made its findings according to
a flawed process - for example, under an incorrect legal
standard, or where necessary findings were not made at all,
or where the state court failed to consider and weigh
relevant evidence that was properly presented to it. See
Taylor v. Maddox, 366 F.3d 992, 9991001 (9th Cir.),
cert. denied, 543 U.S. 1038 (2004). Moreover, if
“a state court makes evidentiary findings without
holding a hearing and giving petitioner an opportunity to
present evidence, such findings clearly result in a
‘unreasonable determination' of the facts”
within the meaning of § 2254(d)(2). Id. at
1001; accord Nunes v. Mueller, 350 F.3d 1045, 1055
(9th Cir. 2003) (state court's factual findings must be
deemed unreasonable under section 2254(d)(2) because
“state court . . . refused Nunes an evidentiary
hearing” and findings consequently “were made
without . . . a hearing”), cert. denied, 543
U.S. 1038 (2004); Killian v. Poole, 282 F.3d 1204,
1208 (9th Cir. 2002) (“state courts could not have made
a proper determination” of facts because state courts
“refused Killian an evidentiary hearing on the
matter”), cert. denied, 537 U.S. 1179 (2003).
A state
court factual conclusion can also be substantively
unreasonable where it is not fairly supported by the evidence
presented in the state proceeding. See, e.g.,
Wiggins, 539 U.S. at 528 (state court's “clear
factual error” regarding contents of social service
records constitutes unreasonable determination of fact);
Green v. LaMarque, 532 F.3d 1028 (9th Cir. 2008)
(state court's finding that the prosecutor's strike
was not racially motivated was unreasonable in light of the
record before that court); Bradley v. Duncan, 315
F.3d 1091, 1096 98 (9th Cir. 2002) (state court unreasonably
found that evidence of police entrapment was insufficient to
require an entrapment instruction), cert. denied,
540 U.S. 963 (2003).
II.
The Relationship Of § 2254(d) To Final Merits
Adjudication
To
prevail in federal habeas proceedings, a petitioner must
establish the applicability of one of the § 2254(d)
exceptions and also must also affirmatively establish the
constitutional invalidity of his custody under pre AEDPA
standards. Frantz v. Hazey, 533 F.3d 724 (9th Cir.
2008) (en banc). There is no single prescribed order in which
these two inquiries must be conducted. Id. at 736
37. The AEDPA does not require the federal habeas court to
adopt any one methodology. Lockyer v. Andrade, 538
U.S. 63, 71 (2003).
In many
cases, § 2254(d) analysis and direct merits evaluation
will substantially overlap. Accordingly, “[a] holding
on habeas review that a state court error meets the §
2254(d) standard will often simultaneously constitute a
holding that the [substantive standard for habeas relief] is
satisfied as well, so no second inquiry will be
necessary.” Frantz, 533 F.3d at 736. In such
cases, relief may be granted without further proceedings.
See, e.g., Goldyn v. Hayes, 444 F.3d 1062, 1070 71
(9th Cir. 2006) (finding § 2254(d)(1) unreasonableness
in the state court's conclusion that the state had proved
all elements of the crime, and granting petition); Lewis
v. Lewis, 321 F.3d 824, 835 (9th Cir. 2003) (finding
§ 2254(d)(1) unreasonableness in the state court's
failure to conduct a constitutionally sufficient inquiry into
a defendant's jury selection challenge, and granting
petition); Williams v. Ryan, 623 F.3d 1258 (9th Cir.
2010) (finding § 2254(d)(1) unreasonableness in the
state court's refusal to consider drug addiction as a
mitigating factor at capital sentencing, and granting penalty
phase relief).
In
other cases, a petitioner's entitlement to relief will
turn on legal or factual questions beyond the scope of the
§ 2254(d) analysis. In such cases, the substantive
claim(s) must be separately evaluated under a de novo
standard. Frantz, 533 F.3d at 737. If the facts are
in dispute or the existence of constitutional error depends
on facts outside the existing record, an evidentiary hearing
may be necessary. Id. at 745; see also
Earp, 431 F.3d 1158 (remanding for evidentiary hearing
after finding § 2254(d) satisfied).
DISCUSSION
I.
Juror Misconduct
After
the jurors rendered their verdict, petitioner moved for a new
trial. ECF No. 20-2 (Clerk's Transcript Vol. 2) at 10 -
11. The motion was based on juror affidavits which indicated
that misconduct had occurred during deliberations.
Id. at 13. There are two separate instances of
purported misconduct at issue. Prior to examining each issue,
the court finds it useful to reproduce the state court of
appeal's summation of the background surrounding juror
misconduct and the motion for new trial:
On the day after the jury delivered its verdict, the trial
court's judicial assistant received a call from Juror No.
3, who indicated he had “second thoughts about the
verdict and [believed] that the jury came to the wrong
conclusion.” Moore moved for a new trial, on the
grounds of, inter alia, alleged juror misconduct. Moore
relied on declarations from Juror Nos. 3 and 10 stating the
jury had discussed Moore's failure to testify. Juror No.
3 declared: “Jurors #7, 9, and 10 discussed during
deliberations that [Moore] did not testify. They stated that
they would have understood the holes in the story of this
case better if [Moore] had testified. These three jurors also
stated that [Moore's] failure to testify supported their
belief and their verdict that he was guilty of murder.”
Juror No. 10 declared: “During the course of
deliberations, the jury spent at least four hours over the
several days of deliberations discussing the fact that
[Moore] did not take the stand. This was a recurring topic
that the jury returned to many times during deliberations.
Included in these conversations were statements that the case
involved many unexplained questions that could have been
answered had [Moore] taken the stand and testified.
Additionally, it was discussed that [Moore] should have tried
to protect his innocence by taking the stand and that he
should have testified because he was on trial for murder. It
was also discussed that had [Moore] taken the stand and
testified regarding what occurred, it would have likely
helped to lessen his degree of culpability. The jury also
discussed the fact that [Moore] must not have taken the
proceedings seriously as he did not take the stand in his
defense. Finally, it was discussed that [Moore] seemed
genuinely sympathetic on the 911 call and that, had he taken
the stand in his own defense, the jury would have better
understood what was on his mind and the outcome of the trial
would likely have been different.”
The People opposed Moore's motion, supporting their
opposition with declarations from Jurors Nos. 2, 3, 5, 8, 9,
and 10. Juror No. 2 declared: “During deliberations the
subject of [Moore's] failure to testify came up twice.
[¶] When the subject arose, at least three people
reminded the jury [Moore's] failure to testify cannot be
taken into account. [¶] . . . [J]urors explained the
court instructed them not to allow [Moore's] failure to
testify to sway their judgment because it is the burden of
the prosecutor to prove the defendant committed the crime.
[¶] I would not characterize the subject as being
‘discussed' during deliberations. I would call it
one of those ‘quick things.' [¶] There was no
agreement between the Jury to disregard the Judges [sic]
instructions regarding [Moore's] failure to testify.
[¶] I personally reminded the jury of the [trial
court's] instruction . . . .”
Declarations of Juror Nos. 5 and 8 were similar. Juror No. 5
stated: “During the course of the Jury's
deliberations I heard brief comments from jurors about
[Moore's] failure to testify. [¶] These comments did
not last very long and I certainly do not remember anyone
talking about the topic for hours at a time. [¶] At no
time during the deliberations did I mention [Moore's]
failure to testify had an effect on my decision. [¶] I
did not observe any of the jurors mention [Moore's]
failure to testify was affecting their decision making
process during the course of the deliberations. [¶]
There was no explicit or implicit agreement . . . to
disregard the Court's instruction regarding [Moore's]
failure to testify.” Juror No. 8 stated: “During
the deliberations three of the jurors discussed [Moore's]
failure to testify for a few minutes if that. [¶] There
was no explicit or implicit agreement among the Jury to
disregard the Court's instruction regarding [Moore's]
failure to testify. [¶] Some of the jurors spoke out and
reminded the Jury [Moore] has the right not to take the stand
and it was up to the District Attorney to prove his
case.”
Juror No. 9 declared: “One of the juror[s] indicated
they wished [Moore] would have testified. [¶] The other
jurors immediately responded the Judge instructed us that you
cannot hold that against the defendant. [¶] I never
stated [Moore's] failure to testify supported my belief
of what happened and that [Moore] was guilty of murder.
[¶] The other jurors also responded the jury needs to
piece together the facts based upon the evidence that had
been received during the trial. [¶] The discussion about
[Moore's] failure to testify lasted seconds. The
discussion lasted at most ten seconds. [¶] There was no
agreement by the jury to disregard the courts instructions on
any point of law.” Juror No. 3 also submitted a
declaration in support of the People's opposition, in
which he stated: “During deliberations the Jury briefly
discussed [Moore's] failure to testify for less than five
minutes. Prior to Juror #10's remark that we had to
‘fill in holes' there was additional discussion to
the effect that if [Moore] had testify [sic] a lot of
questions could have been answered. [We] discussed this topic
for some time. [¶] There was no agreement . . . to
disregard the Judges [sic] instructions regarding
[Moore's] failure to testify.”
Juror No. 10's declaration in support of the opposition
provides: “[Moore's] failure to testify came up
within the context of trying to determine what transpired.
[¶] . . . [¶] I reminded my fellow jurors this is
not a moral court and we must decide the case based on the
facts and the law as it is written. [¶] I never stated
that [Moore's] failure to testify supported my belief on
the case and my verdict that [Moore] was guilty of murder.
[¶] . . . [¶] There was no ...