PEOPLE v. ROWLAND (1999)

INTRODUCTION

Following a jury trial, defendant Marcus Ray Rowland was convicted of murder and two counts of attempted murder.   On this appeal, his primary contention is that the trial court abused its discretion in removing a juror during the course of deliberations.   We agree and therefore reverse the judgment.¹

FACTUAL AND PROCEDURAL BACKGROUND

Procedural Background

Defendant was charged with robbery, murder, and two counts of attempted murder.   The (first) jury convicted him of robbery but deadlocked as to the remaining three charges.   A mistrial was declared.   Upon retrial, a second jury convicted him of the murder and two counts of attempted murder after the court replaced one juror during deliberations.   Because defendant raises no claims in regard to the sufficiency of the evidence, there is no need for us to recite the details of the crimes.

Factual Background About Removal of Juror Number 3

Jury deliberations during the second trial commenced midafternoon on July 28, 1998.²

On July 29, the jury requested and received a reread of testimony.

During the midafternoon of July 30, the jury informed the court that after taking three ballots, it was unable to reach a verdict on any of the three counts.   The first ballot was taken on July 29;  the second ballot was taken the morning of July 30;  and the third ballot was taken the afternoon of July 30.   With each ballot, the jury came closer to reaching a unanimous decision:  the last ballot was 11 to 1.   The court first briefly discussed with the jury foreperson the value of further deliberations and then canvassed the jury about that point.   The court told the jury:  “You are awfully close.   I mean eleven to one is as close as you can get.   Either way.   And I'm not at this point asking which way you are.   So what I will ask you to do, though, is to go back in there and give it another try and see if you can reach a unanimous judgment, a unanimous verdict on one or more of the charges.   With that in mind, we'll allow you that opportunity to do so.”

After deliberating approximately one hour, the jury sent the court a communication asking for the “definition of unwilling to deliberate.”   With the agreement of defense counsel and the prosecutor, the court questioned the jury foreperson outside of the presence of the other jurors.   The foreperson explained that two jurors had asked him to discuss the question with the court and that one juror, subsequently identified as juror number 3, was the reason for the inquiry.   The foreperson stated that after the second ballot had been taken that morning, juror number 3 “seem[ed] to stop deliberating, just stopped-made up their mind ․ [a]nd basically came to a conclusion then and really hasn't opened her mind up ․ and has stated that no matter what more we say, nothing else can happen.”   However, the foreperson also stated that prior to the first ballot, juror number 3 did discuss her view of the evidence with the other jurors.   When the court asked:  “What about listening to other people's point of view of the evidence?   Has this person done that or refused to do that,” the foreperson answered, “She hasn't stated she won't listen.   She sits there, and she will-she's not belligerent in any way, just, you know-she'll reiterate-keep reiterating what she had said․”

With counsel present, the court spoke with juror number 3 outside the presence of the other jurors.   She explained she had been deliberating in good faith with the other jurors, including listening to their point(s) of view.   She stated:  “I thought that all of us-because it seems to me-and I think we are really open, we have very robust discussion.   It seems to me, rather than characterizing a refusal to discuss, I think we have reached a genuine impasse.   I have listened attentively, seriously and I have weighed everything that I have heard with respect of my fellow jurors;  what I have heard in court.   I have copious notes, and I am where I am.”   After she explained that she was not refusing to deliberate, the court said:  “I want you to understand it would be improper for the other jurors to beat you over the head and say here's what we want you to do ․ because we're 11 and you're one.”   In response, juror number 3 explained that earlier that day after the court had instructed the jury to continue to deliberate that “a lot of people [felt] that our task in the further deliberation was to get that particular one to be part of the group ․ [w]here myself, I took it as you say go back and look at it with an open mind.   And it seems to me that there was, in my view, certain misunderstanding of your admonition.   You seemed to indicate go back and discuss.   People felt that their task was go back and convince juror number 3.   And I thought that's not what I understood your comments to be.”   The court agreed.   It said:  “I didn't intend by anything I said that it was the job of the 11 to convince the one.   It was merely an observation that you were almost at some unanimous decision and that you should go back and discuss the evidence or the instructions ․ and see if you can reach a decision on the case unanimously.”

Juror number 3 then left the room.   The prosecutor suggested that because her perception differed from that conveyed by the foreperson, the court either speak with the other jurors or permit the jury to continue to deliberate.   Defense counsel opined that juror number 3 had not engaged in any misconduct.   The court stated it had “not heard sufficient evidence at this point ․ to warrant a finding of juror misconduct” and that it would therefore have the jury return the next morning to continue deliberations.

The next day (July 31) after the jury had deliberated approximately 45 minutes, the court again spoke with the foreperson in the presence of counsel.   Although the record does not explain why the court took this step, it may have been in response to a written motion filed by the prosecutor requesting the court to remove and replace juror number 3 based upon her failure to deliberate.

The foreperson explained that after the jury had taken its second ballot on the morning of July 30, juror number 3 had said “the second vote [was] the last vote[;] ․ I don't care what anybody says, I'm still at the verdict and I'm not going to change from that,” but he also conceded that earlier the next morning (July 31), she had stated she was trying to deliberate and was “open for discussion.”

The court asked the foreperson to explain why others believed juror number 3 was refusing to deliberate.   The foreperson stated:  “[She] seemed a little upset from the very beginning, and I think her statement was that she was upset from the first day she left here as to the circumstances of the trial and what was put forth, how-I kind of took that at the time she stated that that she kind of had her mind made up from the beginning.”   When the court asked him for the basis of his impression, he explained:  “The first day of trial when the trial started she was angry that night when she left that night because of the type of evidence that was given.   She was angry that the case was here.   She made that statement․  [¶] ․ [¶] [S]he made that statement there that she was angry at the prosecution for this trial.   So I interpreted that also by her action through the course that her mind was made up there.   I may be wrong, but that's what I took that as.”  (Italics added.)   When the court asked him if other jurors shared his perception that juror number 3 had prejudged the case, the foreperson answered:  “I'm sure there's a few others at least that do.   You may want to ask each one.”  (Italics added.)   The court responded that it was “inclined to do that” but before it could do so, both counsel interjected with questions and argument.   Defense counsel stated he believed juror number 3 had deliberated but simply disagreed with her fellow jurors.

The court stated:  “I heard something this morning that causes me greater concern than I've ever had before in this juror's conduct, and that is my concern that during the trial she made up her mind.   That's my concern.   While the People's case was still in-that she apparently was upset over something about the People's case ․ [a]nd may have formed a closed mind from that point on.   That bothers me.  [¶] ․ [¶] ․ So the part that concerns me is someone who makes up their mind before the evidence is in and then never changes their mind or reasonably participates in deliberations.   That concerns me.”

The prosecutor noted that the court had indicated “it was inclined to talk to the other jurors about their opinions of juror number 3's conduct” but nonetheless urged that the record already established good cause to remove juror number 3 and asked permission to argue for that result.   The court permitted the prosecutor to do so after which defense counsel argued that there was no misconduct but simply a disagreement among the jurors.

The court ruled:

“The Court is going to find misconduct in this case and dismiss this juror, and the reasons are as follows:  The evidence we've heard up until this morning's questions of the foreperson were, in my view, a very iffy situation and not strong enough to dismiss the juror.   But when that evidence of misconduct was added to what I heard today, it seems to me to put it over the edge and to make this a case of misconduct.   I am concerned primarily with the demonstrated-stated, I should say, conduct of this juror to indicate during deliberations that she was very or extremely upset with the People's case from the very beginning and apparently has maintained that position all along.   That, to me, is indicative of a person who has made up their mind early.   And that seems to be confirmed by the subsequent conduct.   And even though we can't dictate how jurors are to deliberate, certainly when that minority juror, let's say-and I say minority from a numerical point of view-indicates that the reason she thinks this or that is because of A, B and C, and then the other jurors start to discuss those points with her, rather than discussing and resolving that issue, then jumps to another issue where there really is never any resolution, seems to me to be further evidence of someone who really isn't interested in sharing ideas and participating in the deliberation process.   And while she is a very intelligent, well-educated and extremely articulate woman, I think that there is sufficiently strong evidence to show misconduct in the deliberation process in that she has refused to properly deliberate.   And so, therefore, the Court is excusing that juror, will ask the number 3 juror to come in, and we'll seat the entire jury, and I'll give that admonition about starting deliberations all over again.”  (Italics added.)

After the court had made this ruling, defense counsel stated:

“For the record, I'd ask Your Honor to declare a mistrial based on Your Honor's decision.   I think Your Honor's decision is unfounded.   Your Honor based his decision on what one juror has said in here and have not verified through any other jurors.   It's just the impression of the one person that came in here, and his impression may not necessarily be correct.”  (Italics added.)

The court responded:

“I'm glad you made that point, because it made me think of another thing.   I'm also basing it not only on what the one juror was telling me, the foreman, but also on what juror number 3 said.   I can't help but comment that in addition to her being educated and very intelligent and well spoken, she also seemed to have a lot of anger in her demeanor when she addressed [us].   And that may not appear on the naked words of the record, but she seemed very angry.   And I, frankly, at the time couldn't tell whether it was just because of the case or other jurors disagreeing with her or whatever.   But taking that into consideration in light of what the foreman told us this morning, it all seems to fit.”

Juror number 3 was brought into the courtroom.   The court explained its decision to remove her.   She objected, claiming she had not refused to deliberate.   In particular, she denied that she had been “angry” with the prosecution and had made up her mind before deliberations had commenced.   Defense counsel renewed his motion for a mistrial which the trial court again denied.

The court replaced her with an alternate juror and directed the jury to begin its deliberations anew.   Deliberations commenced the afternoon of July 31.   Following the weekend recess, the jury resumed deliberations on August 3.  During the late morning, the jury requested and received a readback of defendant's testimony.   After further deliberations that afternoon, the jury convicted defendant of all charges.

Defendant's subsequent motion for a new trial claimed the trial court had “improperly interfered with the deliberations of the jury and improperly dismissed juror No. 3 from the jury, thereby denying defendant a fair tr [ia]l.”   The court denied the motion.

DISCUSSION

Defendant contends:  “The Trial Court Erred By Discharging Juror Number Three.”

The California Supreme Court has recently granted review in several cases regarding the removal of a juror for refusing to deliberate and follow the law.  (See, e.g., People v. Baca (S078755), review granted July 14, 1999, People v. Metters (S069442) review granted June 10, 1998, and People v. Cleveland (S078537) review granted June 30, 1999.)   Pending determination of those matters, we resolve defendant's contention through application of settled principles of California law.

 Refusal to deliberate constitutes good cause for removal from a jury.  (People v. Feagin (1995) 34 Cal.App.4th 1427, 1435-1437, 40 Cal.Rptr.2d 918;  People v. Thomas (1994) 26 Cal.App.4th 1328, 1333, 32 Cal.Rptr.2d 177.)  “The determination of ‘good cause’ rests in the sound discretion of the court [citations], and the court's finding thereof will be upheld if substantial evidence supports it [citation].”  (People v. Johnson (1993) 6 Cal.4th 1, 21, 23 Cal.Rptr.2d 593, 859 P.2d 673.)   Although this standard of review is deferential to the trial court's decision, that does not mean that in certain circumstances an appellate court cannot and will not find an abuse of discretion.  “While the court's decision will be given great deference, its discretion is not unfettered.  [Citation.]”  (People v. Bell (1998) 61 Cal.App.4th 282, 287, 71 Cal.Rptr.2d 415.)   For instance, this division recently found a trial court's decision to remove a juror to have been an abuse of discretion in People v. Castorena (1996) 47 Cal.App.4th 1051, 55 Cal.Rptr.2d 151 (Castorena ).   Because our analysis in Castorena is relevant to resolving this appeal, we first set forth its facts.

During deliberations the court received a note that one juror was not deliberating.   The judge separately interviewed six jurors, five of whom gave negative information about the juror in question:  juror number 6.   The court instructed the jury about its duty to deliberate.   After several more days of deliberation, the court received another note that juror number 6 was not deliberating.   The court spoke with several jurors and indicated its intent to find misconduct and to remove juror number 6.   At this point, the court had not spoken with juror number 6. (Castorena, 47 Cal.App.4th at pp. 1063, 1064, & 1066, 55 Cal.Rptr.2d 151.)   The court rejected defense counsel's request that it canvass juror number 6 and other jurors.   When proceedings resumed, juror number 6 submitted a 15-page note to the court explaining that she had been deliberating;  that her fellow jurors had fabricated their complaints because they disagreed with her interpretations of the law and the facts;  and that an identified juror had engaged in misconduct.   The court denied a defense motion for a mistrial, removed juror number 6, and substituted in an alternate juror.   The newly constituted jury convicted the defendant.   On appeal, the defense contended the trial court had failed to conduct an adequate investigation into the claim that juror number 6 had committed misconduct.   We agreed.

We held the court abused its discretion in failing to conduct a further inquiry after juror number 6 had submitted her lengthy note to the court.   We wrote:  “Absent such inquiry, the court did not have the requisite facts upon which to decide whether [juror number 6] in fact failed to carry out her duty as a juror to deliberate or whether the jury's inability to reach a verdict was due, instead, simply to [her] legitimate disagreement with the other jurors.”  (Id. at p. 1066, 55 Cal.Rptr.2d 151.)

 This case is similar to Castorena in that after the trial court learned of the information which ultimately convinced it that juror number 3 had committed misconduct-she had prejudged the case-the trial court failed to conduct any further investigation.   Although the court had interviewed juror number 3 the previous day, that was only to investigate the generalized claim that she was failing to deliberate and the court found, in fact, no merit to that allegation of misconduct.   Having received the additional information about other potential misconduct, the court should have spoken to juror number 3 as well as other jurors about this claim.   Only with that information could the court make an informed decision about whether or not she was engaging in misconduct.   This is particularly so because, as evidenced by the prior interviews with both the foreperson and juror number 3, there was a reasonable possibility that the other jurors had misunderstood the court's instruction to continue to deliberate to mean that they had the right to browbeat the dissenter (juror number 3) into submission and, if unsuccessful, to cry misconduct.   The foreperson, in fact, conceded that he “may be wrong” in believing juror number 3 had prejudged the case.   Furthermore, the foreperson offered no explanation as to why he had not volunteered this information the day before when he spoke at length with the court about her alleged failure to deliberate.   Based on this particular factual matrix, it was improper for the court, having been told by only one juror that juror number 3 had prejudged the case, to relate that claim back to what juror number 3 had said the day before, particularly when after having listened to her, the court had found insufficient evidence of misconduct.

 While it is true that the trial court is not under an obligation to investigate “any and all new information obtained about a juror during trial[,] [¶] ․ a hearing is required ․ where the court possesses information which, if proven to be true, would constitute ‘good cause’ to doubt a juror's ability to perform [her] duties and would justify [her] removal from the case.”  (People v. Ray (1996) 13 Cal.4th 313, 343, 52 Cal.Rptr.2d 296, 914 P.2d 846, italics added.)   Here, prejudgment of the case would have justified removing juror number 3.  (See People v. Feagin, supra, 34 Cal.App.4th 1427, 1437, 40 Cal.Rptr.2d 918.)   However, the trial court did not give itself an opportunity to test the credibility of that claim.   Given that the court had earlier found juror number 3 to be credible to the extent she denied the claim that she had failed to deliberate, the court should have spoken with her as well as other jurors before rendering a decision on this issue.

In sum, on these facts, the trial court's failure to conduct a further inquiry-an inquiry which the court had earlier indicated it would undertake and an inquiry which the foreperson had encouraged-was an abuse of discretion.

To paraphrase our analysis in Castorena, “[t]he abuse was prejudicial.   Although the inquiry might have produced sufficient evidence to allow the court to disbelieve [the foreperson's claim that juror number 3 had prejudged the case], we cannot speculate about what facts might have been adduced if the inquiry had been conducted.”  (People v. Castorena, supra, 47 Cal.App.4th at p. 1066, 55 Cal.Rptr.2d 151.)   This error requires reversal to permit a new trial (id. at pp. 1066-1067, 55 Cal.Rptr.2d 151) because once juror number 3 was replaced, a jury which had previously been deadlocked 11 to 1 proceeded to convict.  (See People v. Delamora (1996) 48 Cal.App.4th 1850, 56 Cal.Rptr.2d 382 [two jurors discharged without a showing of good cause;  prior to their discharge the jury, which had deliberated three days, was divided ten to two or nine to three;  three hours after the two jurors were replaced with alternates, jury returns with a guilty verdict;  defendant had therefore demonstrated he was harmed by the jurors' improper removal].) ³

DISPOSITION

The judgment is reversed and the matter remanded for a new trial.

FOOTNOTES

1.   Our reversal renders moot the claims of sentencing error advanced by both defendant and the Attorney General.

2.   All subsequent dates refer to 1998.

3.   We need not and do not address defendant's claim of constitutional error.   In a cursory manner, he urges:  “The discharge of juror number three violated [his] state and federal constitutional rights to due process of law and a unanimous verdict.”   This statement is not supported by pertinent precedent from California.   Instead, defendant relies upon several decisions from the federal Courts of Appeal which hold that if it appears that the discharged juror was the sole holdout for acquittal, the trial court's decision to remove the juror must be subject to meticulous or rigorous scrutiny.   The applicability of those decisions is an issue in one of the matters presently pending before our Supreme Court:  People v. Metters (S069442), review granted June 10, 1998.   The majority opinion in the Court of Appeal decision exhaustively analyzed and rejected those federal authorities (People v. Metters, supra, 61 Cal.App.4th 1489, at pp. 1519-1527, 72 Cal.Rptr.2d 294), a point upon which the dissent took issue (id. at pp. 1538-1550, 72 Cal.Rptr.2d 294 [dis. opn. of Kline, P.J.] ).   We await further guidance from our Supreme Court on this point.

CHARLES S. VOGEL, P.J.

EPSTEIN, J., and CURRY, J., concur.