PEOPLE v. PIERCE (1978)

The Supreme Court granted a hearing in this case and retransferred it to us for reconsideration in the light of People v. Honeycutt, 20 Cal.3d 150, 156, 157-158, 141 Cal.Rptr. 698, 570 P.2d 1050. The case was orally argued on our June 1978 calendar before a panel of three judges.

Lawrence Pierce appeals his jury tried conviction of second degree murder (Pen.Code s 187).

The stage was set. Pierce had been up most of the night, losing about $1,295 at poker, money he could ill afford. At the end of the game, about 4:30 in the morning, he paid $130 on account, promising the balance the following week.

Pierce owned, with another, an ARCO station on Main Street in El Cajon. Financially, business had not been good. After very little sleep, undoubtedly weary, Pierce arrived at work about 8 a. m. During the poker game the night before, Pierce had been annoyed because Dale Huffington, a new employee of but 10 days, had refused to fill in for a sick man on the midnight to 8 a. m. shift. Pierce, by telephone message had made it clear to Huffington he had better be at work at 8 a. m., even though it was Huffington's day off. Huffington was there, as were other employees. Huffington was concerned about being paid time and a half because of his day off. Pierce worked in the office on the accounting books, and moved about, here and there.

Shortly after 9 a. m. Pierce told Bruce Ballard, a mechanic working on a car in the lube bays of the station, a yellow Cougar on a nearby street needed a jump start. Ballard was puzzled that no telephone had rung to bring this message. Ballard got the tow truck; the gas gauge showed empty; he drove to the pumps, got out and walked toward the lube bays, calling for Pierce, finally seeing Pierce bent over behind some stairs in the storage room, clutching what Ballard thought was a red handled windshield washer. Pierce dropped the tool and came out toward Ballard. They went to the gas pumps. Pierce appeared peculiar, not himself, acting strangely. After pumping gas into the tow truck, as Ballard was about to leave, Pierce said something about a guy or guys having come over the back fence and had a gun, and for Ballard to call the police. Pierce returned to the station.DP Ballard drove away, and alerted the police. Meanwhile Donald McGillivray drove in for gas and serviced his car. He heard sounds of hammering, like metal on metal, four to six times. Soon a police officer told him to duck. The police, coming from all directions, had surrounded the station. No one was seen to leave. Carefully the police entered the station, noticed the storage room door slightly ajar. On entering they found Huffington sitting on the floor with a hammer inbedded in his skull; he was moving, breathing, snoring. Much blood was spattered about the room and on Pierce, who was crawling on the floor. Fire department ambulances arrived. As the firemen administered first aid, Huffington moved his head and the hammer fell out. Three firemen handled the hammer as they passed it out of the room. Huffington expired after reaching the hospital.

Pierce's chief claim of error is the misconduct of jury foreman Seymour in talking with a witness about the case during trial. At the beginning of voir dire when the prospective jurors were asked if any of them was familiar with the event, Seymour held up his hand and said he was “Very, very familiar with it.” “. . . one of the arresting officers is a very personal friend of mine.” “He was one of the first officers on the scene . . . He's a neighbor of mine.” The officer, Carl Case, was to be a witness in the case. The court thought it appropriate to excuse Seymour at that time and defense counsel agreed. The district attorney wanted to inquire further.

Seymour was accepted as a juror. The court told the jury, and Seymour in particular, not to talk with anyone about the case, or with any of the witnesses. Nevertheless, the week after Case testified, during trial, Seymour saw him on his front lawn, apologized for not having spoken to him in the hall at court, told him the things that bothered him about the People's case: (1) Why would the district attorney bring up a point and then drop it? (2) Why weren't fingerprints taken from the hammer? The officer explained the nature of the handle made it difficult; Pierce owned the hammer and he and other employees had undoubtedly handled it. (3) Seymour said he wanted to look closer at some photographs. The officer was not sure what photographs Seymour had in mind, but he explained photographs were sometimes excluded as being “gruesome.” (4) The jurors would like to see the storage room in the ARCO station.

Seymour did not discuss this conversation with the other jurors. After the case was over the El Cajon Police Department learned of the conversation, investigated, commendably reported to the district attorney who investigated and commendably reported to the court. Pierce moved for a new trial under Penal Code section 1181(3) where misconduct of the jury prevents a fair and due consideration of the case.

The misconduct is obvious and is presumptively prejudicial. Is this presumption of prejudice dispelled by the evidence in this case? If it is, the judgment should be affirmed; if not, the judgment should be reversed (People v. Honeycutt, supra, 20 Cal.3d 150, 156, 157-158, 141 Cal.Rptr. 698, 570 P.2d 1050).

An extensive investigation of the misconduct was made. Declarations of the pertinent parties were obtained. All of the jurors declared that Seymour had not mentioned to them his conversation with Case. The conversation, as we have pointed out, involved four matters. We shall initially note the first and fourth: (1) Why would the district attorney bring up a point and then drop it? No specified point was mentioned. Seymour could not remember making this inquiry and Case could not remember commenting on it. The trial judge analyzed it as just a “procedural question.” (4) The jurors would like to see the place where the event occurred. Again, Seymour did not recall this inquiry, and Case could not remember responding to it. The statements indicated a juror's frustration over the manner in which the People presented their case, and a desire to see the scene. Nothing about them could have harmed Pierce; nothing showed bias or detracted from the trial's fairness.

As to the second matter, (2), why the police had not taken fingerprints of the hammer, Case told Seymour the type of handle on the hammer made taking prints very difficult; Pierce owned the hammer and he and other employees had undoubtedly handled it. Indeed, a fireman had testified that he and at least two other firemen had handled the hammer after it had fallen from Huffington's head; two days after Seymour's talk with Case, Pierce himself testified he and other station employees made ordinary use of the hammer; Pierce said he used the hammer the day before the killing took place. Again the presumption of prejudice is dispelled. First, Case's comments could reasonably have done nothing to explain why the police had not taken fingerprints. Case did not say they had tried and found none, he simply said it was difficult. These hardly seem adequate answers since they indicate the police may not have tried, and Seymour, after his conversation with Case, probably still wondered why the police had not sought prints from the hammer. The comments of Case did nothing to reduce or add to the possibility that Pierce or anyone else had handled the hammer the day of the murder. Case's comments neither added to nor detracted from the evidence against Pierce.

Suppose hypothetically, Case had told Seymour that he had long known Pierce and thought him incapable of the act with which he was charged. Such a private communication is deemed presumptively prejudicial. But “ ‘the contrary appears' ” (People v. Honeycutt, supra, 20 Cal.3d 150, 156, 141 Cal.Rptr. 698, 570 P.2d 1050, quoting People v. Conkling, 111 Cal. 616, 628, 44 P. 314). Since there is no reasonable possibility an adverse inference might be drawn from it, its content rebuts the presumption.

As a second example, suppose Case had told Seymour that Pierce was wearing a green shirt on the day of the murder, and at trial, the color of the shirt, having in itself no tendency in reason to prove Pierce was the assailant, was not mentioned. We would say the lack of probative value of the color of the shirt rebuts the presumption of prejudice arising from the private communication.

It is plain from such statements in the context of the case that only by indulging highly unlikely inferences (e. g., irrational juror hatred of green) could we say that the presumption of prejudice was not rebutted. If “proof that no prejudice actually resulted” (People v. Honeycutt, supra, 20 Cal.3d 150, 156, 141 Cal.Rptr. 698, 700, 570 P.2d 1050, 1052) requires proof that a private communication had no prejudicial Effect, rational or irrational, upon a juror, then the burden would be insurmountable (Evid.Code s 1150); the presumption would be conclusive and not rebuttable as the court declared in Honeycutt.

Epistemologically the only way to learn whether any prejudice actually resulted is to inquire into the minds of the jurors and this, of course, is a forbidden inquiry (Evid.Code s 1150).

In summary, the evidence was that Pierce and the employees of the ARCO station had handled Pierce's hammer in the course of their labors; at least three firemen had handled it after the tragedy. Had Pierce's fingerprints been revealed, the message from it would have confirmed what the verbal evidence showed he had used the hammer, at least as a working tool. Had his fingerprints not been revealed it would not mean he had not used the hammer, but that they were difficult to obtain or that they had been obscured by the handling of others. Therefore, the probative value of any fingerprints on the hammer was insignificant. There was no prejudice, and therefore any presumption of prejudice was rebutted.

The last matter, (3), was Seymour's statement he would like to have a closer look at some of the photographs. Case responded he was not sure what pictures Seymour meant, but sometimes photographs were excluded because they were gruesome. We cannot perceive how this conversation could have harmed Pierce in any way. There is nothing in Case's reply which indicated the prosecution was withholding evidence from the jury, or that Seymour was affected by it. The reply is fairly common knowledge, at least to experienced jurors. All the jurors in this case had had previous experience.

Our reconsideration of the case, in the light of People v. Honeycutt, supra, 20 Cal.3d 150, 156, 157-158, 141 Cal.Rptr. 698, 570 P.2d 1050, leads us to conclude that the presumption of prejudice was rebutted.

Pierce contends the trial court erred in denying his motion for a new trial, based on the misconduct.

On the motion for new trial the trial court gave great attention to the matter of misconduct. The subject was argued and considered at length, and the court, in effect, found the prejudice was dispelled, when it concluded it was not reasonably probable a result more favorable to Pierce would have been reached in the absence of the misconduct (People v. Watson, 46 Cal.2d 818, 834-836, 299 P.2d 243). As stated by Pierce in his opening brief:

“In reaching that conclusion the court cited, Inter alia, the following factors: (a) conversation between Case and Seymour regarding the lack of fingerprints on the murder weapon, if error, was harmless because within two days of that conversation the defendant took the stand and testified to ordinary use of the hammer by himself and by other station employees; (b) the matter of Seymour's saying the prosecutor did not fully develop the issues was a purely ‘procedural question’; (c) discussion regarding a sketch of the scene of the crime was not material or dispositive because ‘nobody really seems to pay any attention to that point’; and (d) discussion regarding the jury's seeing only selected photographs of the scene, if error, was harmless because the court directed certain photos be held back until offered into evidence, and were provided to the jury during deliberations anyway.”

The trial court did not abuse its discretion in refusing to grant a new trial; likewise, under the Chapman test, which Pierce asks us to invoke, as well as Watson, the result should remain the same (Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; People v. Watson, supra, 46 Cal.2d 818, 834-836, 299 P.2d 243; see Remmer v. U. S., 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654).

The trial court fully and adequately instructed the jury on the burden of proof beyond a reasonable doubt, and properly refused Pierce's superfluous, special instruction in that regard.

Pierce claims the court abused its discretion in admitting into evidence a color photograph of the back of Huffington's head, on the ground that its bloody and gruesome nature was prejudicial and inflammatory. Huffington's death, as the verbal evidence showed, was bloody and gruesome. We cannot say the picture did any more than portray what words had described. Its admission into evidence was not an abuse of discretion.

The evidence, which we have recited, without need to repeat, is sufficient to show Pierce as the slayer, and to support second degree murder. It would possibly support first degree murder, and Pierce is fortunate, probably as a result of the long deliberations of the jury,¹ that the jury reached the second degree result.

The court was not required to give reasons for denying probation (People v. Edwards, 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995).

Judgment affirmed.

I dissent.

In People v. Honeycutt (1977) 20 Cal.3d 150, 141 Cal.Rptr. 698, 570 P.2d 1050, our Supreme Court has reaffirmed the proposition that a presumption of prejudice arises from any juror misconduct. This presumption may be rebutted only by proof no prejudice actually resulted. (See People v. Honeycutt, supra, at p. 156, 141 Cal.Rptr. 698, 570 P.2d 1050; In re Winchester (1960) 53 Cal.2d 528, 535, 2 Cal.Rptr. 296, 348 P.2d 904.)

When the type of misconduct involved relates to an event, such as the reading by a juror of a newspaper article pertaining to the trial, the effect of that event on the juror's thinking cannot be resolved by the juror swearing the misconduct did not influence his verdict. (See People v. Stokes (1894) 103 Cal. 193, 37 P. 207.) Evidence Code section 1150 limits juror's affidavits to “. . . statements made, or conduct, conditions or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly.” Evidence of the subjective reasoning processes of a juror is not admissible. (See People v. Hutchinson (1967) 71 Cal.2d 342, 349, 78 Cal.Rptr. 196, 455 P.2d 132.) The People then have a difficult task in overcoming prejudice when it is necessary for them to rebut any inference which can reasonably be drawn from the event and which may, in some subtle fashion, have ultimately affected a juror's deliberations. (See People v. Guzman (1977) 66 Cal.App.3d 549, 559, 136 Cal.Rptr. 163.) It is the misconduct itself which must be considered and found to be harmless rather than testing the extent of prejudice under People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243 or Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. This burden, however, is only in keeping with the significance of the due process right to trial by jury which includes the right to have the perception of the evidence by each individual juror before a collective decision can be achieved by all jurors. (Parker v. Gladden (1966) 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420; Turner v. State of Louisiana (1965) 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424.)

The misconduct, consisting of the conversation between the juror (Seymour) and the police officer who had been a witness (Case), occurred five or six days after the prosecution had completed its case-in-chief and during the presentation of the defense case. Seymour asked (1) why the District Attorney would bring up a point and then drop it, and (2) why no fingerprints had been taken from the murder weapon. He said (3) he wanted to look closer at certain photographs and (4) he and other jurors wanted to view the crime scene.

I do not disagree with the majority as to their analysis of the matters contained in 1, 3 and 4 when examined separately. I believe our inquiry, however, should involve itself with the inferences that can be drawn from the entire conversation, particularly that portion dealing with the subject of fingerprints on the hammer.

I draw the inference that a juror, one who was subsequently elected as foreman, after several days of trial and well into the defense case, was still bothered by the state of the evidence. He was concerned about several things relating to the trial, particularly about the absence of testimony relating to fingerprints, and inferentially, the significance of fingerprints themselves either being present or absent on the murder weapon. Whether his concern was reasonable in light of the evidence presented in trial to that point is irrelevant. Even if relevant, a court can neither quantify a juror's concern and decide when it has reached the level of reasonable doubt, nor consider it in qualitative terms and conclude when it is irrational because not based upon the evidence. (See Evid.Code s 1150.) A defendant is entitled to the individual opinion of each juror and when a single juror is improperly influenced, a defendant has been deprived of the right to an impartial jury. (Parker v. Gladden, supra, (1966) 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420; People v. Brown (1976) 61 Cal.App.3d 476, 481, 132 Cal.Rptr. 217.)

I believe the dialogue between Case and Seymour could reasonably have eliminated Seymour's concern relating to the non-existence of fingerprints. After a conversation with a police officer, one who had investigated the murder itself, Seymour could reasonably equate the absence of fingerprints not with the innocence of the defendant, but with the mechanical difficulty in the retrieval process in lifting prints. A scientific explanation obtained through extrajudicial means may have replaced his reasonable doubt.

Obviously, it would have taken an expert witness to discuss the methods of lifting prints and the implications of the presence or absence of fingerprints on the murder weapon. The defendant then would have been able to exercise his rights of confrontation and cross-examination. He proceeded, however, through the entire trial under the impression that all evidence pertaining to his case had been presented in the trial itself. Even his closing argument stressed his belief as to the significance of fingerprint testimony. His counsel argued: “We had a hammer. We had something that should have been taken off of that. We had no evidence of fingerprints . . . Why not? There ought to be. People leave fingerprints, but there's no fingerprints here.” The impact of this argument on at least one juror was undoubtedly reduced.

I conclude under the circumstances of this case the People have not carried their burden of dispelling actual prejudice to the defendant because of the juror misconduct. Accordingly, I would reverse the judgment.

FOOTNOTES

1.  The jury deliberated 21/2 days: 61/4 hours on April 29; 71/2 hours on April 30; and 4 hours, 50 minutes May 3. Undoubtedly time for lunch each day is included.

GERALD BROWN, Presiding Justice.

COLOGNE, J., concurs.