Brief Bank # B-979 (Re: PG X(A)/PG X(L)(8) [Standard Of Review vs. Standard Of Prejudice/Juror Misconduct: Standards Of Prejudice – (1) General Standard Of Prejudice].) CAVEAT: The file below was not prepared by FORECITE. FORECITE has not made any attempt to review or edit this material and is not responsible for its content or format. FORECITE cannot guarantee the information is complete, accurate or up-to-date. You are advised to conduct your own independent, comprehensive research on all issues addressed in the material below.
NOTE: The text of the footnotes appears at the end of the document.
Date of Brief: August 2003
THE PRESENCE OF INADMISSIBLE PREJUDICIAL EVIDENCE IN THE JURY ROOM THROUGHOUT THE PENALTY DELIBERATIONS CREATED A PRESUMPTION OF PREJUDICE WHICH WAS NOT REBUTTED
A. Procedural Background
Because the jury acquitted on the Victim 2 count, and could not reach a verdict on the Victim 4/Victim 5 charges, the judge ruled that the jurors could not consider the evidence from those charges at the penalty trial. (RTT 13441.) Accordingly, the jury was instructed not to consider those charges. (CT 14373; 14401; 14403.)
However, at the outset of penalty deliberations, no effort was made to redact or remove any of the Victim 2 or Victim 4/Victim 5 exhibits. Hence, all of the guilt phase exhibits which had been sent into the jury room during the guilt trial remained there throughout the penalty trial. (RTT 13457.)
After receipt of the jurors’ penalty phase note concerning whether the guilt phase evidence could be considered at penalty, the defense voiced its concern that the province of the jury not be invaded. (RTT 13458.) In light of these concerns the defense opposed removing the Victim 2 and Victim 4/Victim 5 exhibits at that time. (RTT 13458-59.)
However, once the judge decided to specifically instruct the jurors concerning consideration of the guilt phase exhibits, the defense voiced its concern about undue emphasis of the Victim 2 and Victim 4/Victim 5 evidence. (RTT 13483-84.) Nonetheless, the judge foreclosed any redaction or removal of the exhibits by ruling:
The fact of the matter is there is no question in my mind that this would be a matter of defense appeal, and the – both sides, I think, have admitted the fact that it would be literally impossible to go through there and separate out all the little pieces that relate to Victim 2 and Victim 4/Victim 5.
The best that I can do under the circumstances, and I think the appropriate thing to do is to – advising them of the things they have access to remind them that they do not have access to consideration of any of those things that relate to any of those two cases, and I think that is sufficient and I think it’s important that that be done. (RTT 13484:24-13485:7.)
Accordingly, during the entire penalty deliberations, and at the time the jurors ultimately voted to impose a sentence of death, the jurors had in their possession inflammatory extraneous evidence.
B. The Juror Consideration Of Extrinsic Evidence Violated The Federal Constitution
Juror consideration of extrinsic evidence violated Doe’s federal constitutional rights to due process, trial by jury, confrontation, and representation of counsel and verdict reliability as guaranteed by the Sixth, Eighth and 14th Amendments.
The Supreme Court has held that a defendant has a right to trial by an impartial jury and that, “[i]n the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.” (Turner v. Louisiana (1965) 379 U.S. 466, 472-73; see also Parker v. Gladden (1966) 385 U.S. 363, 364-65; Marshall v. United States (1959) 360 U.S. 310; People v. Karis (1988) 46 Cal.3d 612; Marino v. Vasquez (9th Cir. 1987) 812 F.2d 499; cf., Tanner v. United States (1987) 483 U.S. 107 [juror consideration of extraneous evidence may impeach the verdict].) To safeguard a defendant’s constitutional rights, the exposure of a jury to extrinsic information has been “deemed presumptively prejudicial.” (Remmer v. United States (1954) 347 U.S. 227, 229; see also People v. Zapien (1993) 4 Cal.4th 929, 944; People v. Holloway (1990) 50 Cal.3d 1098, 1108.)
Furthermore, the jurors’ consideration of extrinsic evidence violated Doe’s due process rights, which are guaranteed by the Fourteenth Amendment of the federal constitution. “Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” (Smith v. Phillips (1982) 455 U.S. 209, 217, italics added.) At the penalty phase, as well as the guilt phase of a capital trial, the jury “must stand impartial and indifferent;” its “verdict must be based upon the evidence developed at the trial,” and may not be influenced by any other external consideration. (Morgan v. Illinois (1992) 504 U.S. 719, 727.)
Moreover, the error also undermined the reliability of the penalty verdict in violation of the Eighth Amendment. At the penalty phase of a capital trial there is a “heightened ‘need for reliability in the determination that death is the appropriate punishment’ [Citations]” (Caldwell v. Mississippi (1985) 472 U.S. 320, 340), and for “the responsible and reliable exercise of sentencing discretion.” (Id. at 329; Beck v. Alabama (1980) 447 U.S. 625, 627-46.)
Finally, because the error arbitrarily denied Doe’s state created right to a fair, impartial and unfettered trial by jury, it violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution. (Hicks v. United States (1980) 447 U.S. 343, 346; see also People v. Sutton (1993) 19 Cal.App.4th 795, 804; Hernandez v. Ylst (9th Cir. 1991) 930 F.2d 714, 716.)
C. Juror Exposure To Extrinsic Evidence Creates A Presumption Of Prejudice
“Juror consideration of extraneous evidence “creates a presumption of prejudice.” (People v. Mincey (1992) 2 Cal.4th 408, 467; see also People v. Hogan (1982 ) 31 Cal.3d 815, 846; People v. Boyd (1979) 95 Cal.App.3d 577, 586; People v. Kitt (1978) 83 Cal.App.3d 834, 849-851.) This presumption of prejudice may be rebutted only by “proof that no prejudice actually resulted. [Citation.]” (People v. Honeycutt (1977) 20 Cal.3d 150, 156.) Unless the presumption of prejudice is rebutted, the accused is entitled to a new trial regardless of the probability that a more favorable verdict would have resulted absent the error. (People v. Pierce (1979) 24 Cal.3d 199, 206-207.) Therefore, the determinative issue is whether there is evidence which rebuts the presumption that a new trial is necessary. To make this determination the reviewing court should consider (1) whether the evidence was inherently not prejudicial and (2) whether the limiting instruction was sufficient to rebut the presumption. (People v. Hogan, supra, 31 Cal.3d at 846.)
D. The Presumption Of Prejudice Was Not Rebutted In The Present Case
Judge H. assumed that an instruction to not consider the inadmissible evidence would be sufficient. However, the instruction did not rebut the presumption of prejudice for several reasons.
First, it has been generally recognized that even a full and forceful admonition may, in some circumstances, be inadequate “to overcome the substantial danger of undue prejudice . . . .” (People v. Allen (1978) 77 Cal.App.3d 924, 935.) For example, the following cases have held admonitions to be insufficient: United States v. Figueroa (2nd Cir. 1980) 618 F.2d 934, 943; United States v. Schiff (2nd Cir. 1979) 612 F.2d 73, 82; People v. Gibson (1976) 56 Cal.App.3d 119, 129 [other crimes evidence]; People v. Matteson (1964) 61 Cal.2d 466, 469-7; People v. Johnson (1964) 229 Cal.App.2d 162, 170 [opinion of police officer that defendant was guilty]; People v. Roof (1963) 216 Cal.App.2d 222, 225 [prior charge]; People v. Ozuna (1963) 213 Cal.App.2d 338, 342 [“ex-convict”]; People v. Figuieredo (1955) 130 Cal.App.2d 498, 505-06 [defendant “did time”]; People v. Hardy (1948) 33 Cal.2d 52, 61-62; People v. Wagner (1975) 13 Cal.3d 612.)
Here, the jurors were given the impossible task of reviewing and considering all the exhibits, while blocking the Victim 2 and Victim 4/Victim 5 exhibits from their minds. For example, one exhibit was a chart showing close-up photos of the throat slashing suffered by each victim. (Trial Exhibit 29.) Other inflammatory exhibits included an anatomical chart of the neck and throat with plastic overlays for Victim 4, Victim 5 and Victim 2 (Trial Exhibits 30, 30A, 30B and 30C); Victim 2’s pants (Trial Exhibit 132); color blowup photos of her pants and the wipe mark stain on them (Exhibits 669; 670A-H; 671-679); a diagram of Victim 4’s residence with plastic overlays depicting the bodies of Victim 4 and Victim 5 (Trial Exhibits 182 and 182A). It was not humanly possible for the jurors to look at these exhibits and not be influenced by the pictures of the three victims, including one young child. [Footnote 1]
Second, the admonition referred only to the evidence in Victim 2 and Victim 4/Victim 5. (CT 14266, 14373.) This did not preclude the jurors from considering their conclusions about Doe’s guilt in Victim 4/Victim 5. (See § 7.5.3(F), pp. 1631-34 above, incorporated herein.)
Third, in the present case, Judge H. gave a special supplemental instruction calculated to encourage the jurors to examine and consider the guilt phase exhibits. (See § 7.7.2, pp. 1678-90 above, incorporated herein.)
In sum, the presumption of prejudice has not been rebutted in the present case, and the judgement should be reversed.
E. Even Without The Presumption Of Prejudice The Judgment Should Be Reversed
Even without considering the presumption of prejudice, the death sentence should be reversed. Because the error here violated the federal constitution, it requires reversal unless the prosecution shows it to be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Under both the federal and state standards of prejudice, the prosecution must demonstrate beyond a reasonable doubt that the error was harmless. (See Volume 6, § 6.5.1(D), pp. 1548-50, incorporated herein.) Hence, because the error was substantial and the penalty deliberations were closely balanced [Footnote 2], the prosecution cannot meet its burden of demonstrating that the error was harmless.
Accordingly, the penalty judgment should be reversed.
Footnote 1: At least one juror had verbalized the decisive impact that a child-victim would have on her sentencing verdict. (See § 7.5.1(B)(1), pp. 1603-04 above, incorporated herein [Juror S.B.].)
Footnote 2: See § 7.5.1(J)(3)(a), pp. 1619-20 above, incorporated herein [close balance at penalty demonstrated by near-deadlock, length of deliberations, request for readback of testimony, request for re-instruction, etc.].