holding that a defendant must raise at trial objections to prosecutorial misconduct, lest he or she waive such arguments on appeal
How later courts described this case
- holding that a defendant must raise at trial objections to prosecutorial misconduct, lest he or she waive such arguments on appeal
- holding the felony statute of limitations applies to a wobbler offense initially charged as felony, without regard to the ultimate reduction to a misdemeanor
- affirming torture murder conviction and noting that "a misguided attempt at discipline can involve an intent to cause cruel pain and suffering"
- "[The improper prosecutorial comment's] brevity and the unlikelihood of an adverse inference being drawn by the jury indicate that an objection and admonition might have cured any possible harm. Accordingly, defendant may not now raise the issue on appeal."
Written by the judges who cited it.
The opinion
MOSK, J., Concurring and Dissenting.
I concur in the judgment as to guilt and death eligibility. After review, I have found no error requiring reversal or vacation on either issue.
I dissent from the judgment, however, as to the sentence of death. As I shall explain, there was prejudicial juror misconduct bearing on that question.
The facts are these. In his summation at the penalty phase, defense counsel urged the jury to spare defendant’s life. “I . . . have a personal *481 belief,” argued counsel, “that the laws of God are very absolute, that the Sixth Commandment which says ‘Thou shall not kill’ is a very absolute rule. It reflects the values of western culture that tell us that human life is very sacred, and I don’t know of any exemption granted to the State of California by the Sixth [Commandment] permitting the state to kill. The . . . laws of God I believe are absolute . . . .” (Internal quotation marks added.)
Soon, the jury commenced deliberations. After excusing the panel for the day, the trial judge, on the bailiff’s mention, noticed that one of the jurors, Glenda Hoffman, was holding a book under her arm. He asked what it was, and she revealed it to be a Bible. He then asked whether she had had it in the jury room, and she said yes. On voir dire during jury selection, Hoffman had identified herself as a Baptist, and stated that she was affiliated with an organization called “Campus Crusade”—which was “not really a church,” “more than just employment,” “[i]t’s kind of a way of life.” Also on voir dire, at least seven of the other eleven jurors had identified themselves as Christians.
The next day, before the jury recommenced deliberations, the trial judge conducted an inquiry into the incident.
Summoning Juror Hoffman into chambers outside the presence of the other members of the panel, the trial judge questioned, “When ... did you take the Bible into the jury room?” She replied, “During—after lunch . . . .” He questioned, “And what use did you make of the Bible?” She replied, “We were all finished and we were all getting ready to go home and some people kept making references to the Bible, and I said, well, I have it right here. And I go, do you all want to—whoever wants to go can go, whoever wants to stay can stay. So everybody stayed and so we read a few verses from it.”
On further questioning by the trial judge, Juror Hoffman stated that she had read for her colleagues Numbers 35:16: “But if he struck him down with an iron object, so that he died, he is a murderer; the murderer shall be put to death.”
She stated that she had also read Numbers 35:21: “Or if he struck him down with his hand in enmity and as a result he died, the one who struck him down shall surely be put to death.”
In addition to the foregoing, she stated that she had read Romans 13:1-5, as follows.
“Let every person be in subjection to the governing authorities. For there is not authority except from God, and those which exist are established by God.
*482 “Therefore, he who resists authority has opposed the ordinance of God, and they who have opposed will receive condemnation upon themselves.
“For rulers are not a cause of fear for good behavior, but for evil. Do you want to have no fear of authority? Do what is good, and you will have praise from the same.
‘For it is a minister to God to you for good. But if you do what is evil, be afraid; for it does not bear the sword for nothing; for it is a minister of God, an avenger who brings wrath upon the one who practices evil.
“Wherefore it is necessary to be in subjection, not only because of wrath, but also for conscience’ sake.”
Juror Hoffman added: “. . . [Pjeople know clearly how I feel, and so reading the Numbers verse they knew definitely how I felt about reading it, so it was like they knew it was a hard thing for me to read it, but I just felt like I needed to clear up, that the Bible is not—there’s different views that come from the Bible that people get, so that was—that was my point.”
Summoning each of the other jurors into chambers outside the presence of the rest, the trial judge questioned whether the facts were as Juror Hoffman had represented. He received answers that were substantially affirmative. He also questioned whether Hoffman’s reading of the Bible verses had had any influence. He received answers that were substantially negative. He did not question Hoffman herself about this matter, and hence received no answer.
Following his inquiry, the trial judge found that “what transpired in the jury room was that Ms. Hoffman read Romans 13 verses 1 through 5, Numbers 35 verses 16 and 21.” He also found that “it occurred, . . .it happened at the conclusion or after they had completed their deliberations for the day . . . .” Lastly, he found that Hoffman’s “fellow jurors’ approach to their deliberations has not been affected by that reading. It may be deemed to disclose to us Ms. Hoffman’s approach, but beyond that—and that is not anything which would justify discharging the jury. There is no motion for mistrial. I find no harm, no denial of any protection has occurred.”
In open court, the trial judge stated to the jury: “The jurors had at the conclusion of their deliberations access to a Bible yesterday. I admonish you again, do not take anything into the jury room with you. No reference books of any kind, no verses, no poems, no newspapers, no anything. You are required by the law of the State of California to decide this case on the basis of the evidence adduced here in court and the law of the State of California. *483 What you have that you bring with you from your background, your heritage, your training, of course, you bring to bear. But do not take any other types of reference materials with you.”
After further deliberations, the jury returned a verdict of death.
It is, of course, misconduct for a juror to introduce any extrinsic material into the jury room. (See Pen. Code, § 1137.) “Jurors are not allowed to obtain information from outside sources either as to factual matters or for guidance on the law.” (People v. Karls (1988) 46 Cal.3d 612, 642 [ 250 Cal.Rptr. 659 , 758 P.2d 1189 ].)
Consequently, it is misconduct for a juror to introduce extraneous law. (E.g., People v. Marshall (1990) 50 Cal.3d 907, 950 [ 269 Cal.Rptr. 269 , 790 P.2d 676 ]; In re Stankewitz (1985) 40 Cal.3d 391, 399 [ 220 Cal.Rptr. 382 , 708 P.2d 1260 ].) “The courts have condemned the use of a common dictionary by jurors where there exists a reasonable possibility that it was used to define legal terms, or act as a substitute for instructions in the jury’s deliberations. ... [IQ The outcome has been similar when the material at issue was a legal or quasi-legal text,” including even such items as “a Readers’ [s/c] Digest guide entitled ‘You and the Law’ . . . .” (Jones v. Kemp (N.D.Ga. 1989) 706 F.Supp. 1534, 1558 [discussing the general common law].)
On the very face of the record of the trial below, juror misconduct is manifest. The majority recognize the fact, as they must.
Juror Hoffman introduced extrinsic material into the jury room, viz., the Bible. That is undisputed. The impropriety cannot be dismissed as the product of inadvertence. Not long before the incident, the trial judge had made plain to the jurors that extrinsic material did not belong in the jury room when he denied a request for a legal dictionary as “inappropriate.” Neither can the impropriety be justified or even excused as a “response” to defense counsel’s comments during summation. Hoffman was free to disagree with the remarks—but that is all.
Further, the extrinsic material Juror Hoffman introduced constituted extraneous law. That is indisputable. The Bible is an “extra-judicial code of conduct—a code which mandates death for numerous offenses, including filial disobedience and breaking the Sabbath .... To the average juror, Webster’s Dictionary may be no more than a reference book, and The Reader’s Digest nothing more than a diverting periodical; but the Bible is an authoritative religious document and is different not just in degree, although *484 this difference is pronounced, but in kind.” (Jones v. Kemp, supra, 706 F.Supp. at p. 1559 .)
The fact of Juror Hoffman’s misconduct is plain on the face of the record. She took the Bible into the jury room.
The substance of Juror Hoffman’s misconduct is disclosed on only minimal scrutiny.
Hoffman read the verses set out above in an evident attempt to prove that defense counsel was “misstating” God’s “law.”
Counsel stated, “I . . . have a personal belief that the laws of God are very absolute, that the Sixth Commandment which says ‘Thou shalt not kill’ is a very absolute rule.” (Internal quotation marks added.)
Against this remark, Hoffman quoted the cited passages from Numbers to establish the “rule” that death must be visited on the murderer who kills his victim “with his hand”—defendant beat James with his hand—or “with an iron object”—he also used a leather belt with metal grommets.
Additionally, counsel stated, “. . . I don’t know of any exemption granted to the State of California by the Sixth [Commandment] permitting the state to kill.”
Against this remark, Hoffman quoted the cited passage from Romans to give religious “legitimacy” to the secular state’s use of capital punishment: governmental authority “is a minister of God, an avenger who brings wrath upon the one who practices evil.”
Moreover, Hoffman read the verses set out above in an evident attempt to urge the death penalty as the religiously appropriate punishment for defendant’s crime. That fact is express in the very words she quoted from Numbers—“the murderer shall be put to death” (italics added), he “shall surely be put to death” (italics added). It is implied in her comment, “[P]eople . . . knew it was a hard thing for me to read it. . . .”
*485 The juror misconduct here did not offend California law alone. It also violated defendant’s rights under the United States Constitution.
“It is well settled that religion may not play a role in the sentencing process.” (Jones v. Kemp, supra, 706 F.Supp. at p. 1559 .) The jury has “a duty to apply the law of the [jurisdiction] as given by the trial judge, not its own interpretation of the law or its own interpretation of precepts of the Bible, in determining whether the [defendant] should live or die.” (Ibid.)
“. . . A search for the command of extrajudicial ‘law’ from any source other than the trial judge, no matter how well intentioned, is not permitted. The use by deliberating jurors of an extrajudicial code . . . cannot be reconciled with the Eighth Amendment’s requirement that any decision to impose death must be the result of discretion which is carefully and narrowly channelled and circumscribed by the secular law of the jurisdiction.” (Jones v. Kemp, supra, 706 F.Supp. at p. 1559 .)
Further, “[a] situation in which a jury, unsupervised by the court and unobserved by counsel, could reach a conclusion by consulting sources other than the legal charge of the court and evidence actually received by the court is not permitted. ‘The Sixth Amendment guarantees that the accused shall enjoy the right to a trial by an impartial jury and shall be confronted with the witnesses and evidence against him. . . . The most general interpretation of a fair trial is that it be conducted before unprejudiced jurors under the superintendence of a judge who instructs them as to the law and advises them as to the facts. Judicial control of the juror’s knowledge of the case pursuant to the laws of evidence is fundamental to the prevention of bias and prejudice.’ Extraneous materials, whether they be dictionaries, law books, or Bibles, unless properly received in evidence, are not allowed in the jury room for use by a deliberating jury. The jury should have with it in the jury room only those documents received in evidence, or perhaps judicially noticed and a copy of the court’s charge if reduced to writing—nothing else.” (Jones v. Kemp, supra, 706 F.Supp. at p. 1560 , italics in original, citation omitted.)
Juror misconduct raises a presumption of prejudice. (E.g., People v. Marshall, supra, 50 Cal.3d at p. 949 ; In re Stankewitz, supra, 40 Cal.3d at p. 402 .) The presumption is heavy indeed when the impropriety “goes to a key issue in the case . . . .” (In re Stankewitz, supra, at p. 402 .) It is heavier still when the death penalty is involved. (Ibid.) “[T]he state must then rebut the presumption”—if it can—“or lose the verdict.” (People v. Marshall, supra, at p. 949 .)
*486 Whether or not the presumption of prejudice raised by juror misconduct is rebutted is resolved as follows.
“A judgment adverse to a defendant in a criminal case must be reversed or vacated ‘whenever ... the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury.’. . .
“ ‘The ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test, an objective standard. In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror.’
“Such ‘prejudice analysis’ is different from, and indeed less tolerant than, ‘harmless-error analysis’ for ordinary error at trial. The reason is as follows. Any deficiency that undermines the integrity of a trial—which requires a proceeding at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury—introduces the taint of fundamental unfairness and calls for reversal without consideration of actual prejudice. Such a deficiency is threatened by jury misconduct. When the misconduct in question supports a finding that there is a substantial likelihood that at least one juror was impermissibly influenced to the defendant’s detriment, we are compelled to conclude that the integrity of the trial was undermined: under such circumstances, we cannot conclude that the jury was impartial.” (People v. Marshall, supra, 50 Cal.3d at pp. 950-951, citations omitted.)
The question is: Have the People rebutted the presumption of prejudice raised by Juror Hoffman’s misconduct? That is to say, have they established that there is no substantial likelihood that any juror was improperly influenced to defendant’s detriment?
The presumption is exceedingly heavy here: the misconduct went to the first, last, and only issue before the jurors in the penalty phase of this capital trial, viz., whether defendant’s life would be taken or spared.
The answer is: No, the People have failed in their attempt—they have not established the absence of a substantial likelihood of improper influence. By its very facts, defendant’s murder of James raised the crucial question *487 whether lex talionis was applicable and, if so, what result its application would yield. The words read by Juror Hoffman provided a clear and simple answer: the principle of retribution operated—and demanded death. That answer must be deemed forceful indeed, coming as it did from what many consider an authoritative source—if not Authority Itself. My conclusion might well be different for a nonreligious society peopled with nonbelievers. But the trial below was not conducted in such a society, and the jurors who sat in judgment were not such men and women.
I recognize that the trial judge effectively found that none of the other 11 jurors was improperly influenced by Juror Hoffman’s misconduct. But he did not—and indeed, could not—make such a finding as to Hoffman herself. It is settled that a verdict cannot stand if even a single juror has been affected. (In re Stankewitz, supra, 40 Cal.3d at p. 403 .)
I also recognize that the trial judge delivered an admonition to the jury. His words could not have cured or prevented any harm arising from Juror Hoffman’s misconduct because they carefully, but clearly, avoided the question. True, the judge told the jurors that “You are required by the law of the State of California to decide this case on the basis of the evidence adduced here in court and the law of the State of California.” But he did not tell them that they were required not to consider the Bible verses in question. Rather, he implied that they could do so. He said: “What you have that you bring with you from your background, your heritage, your training, of course, you bring to bear.” As noted, at least eight of the jurors, including Hoffman, had identified themselves as Christians. That being so, they presumably “brought” the verses with them from their “background,” “heritage,” and “training.”
Finally, I recognize that the jury did not return its verdict of death immediately after Juror Hoffman’s misconduct. That fact means only that Hoffman’s impropriety did not instantly determine the outcome. It simply does not suggest that it was without improper influence.
The majority conclude that the People have rebutted the presumption of prejudice raised by Juror Hoffman’s misconduct. Their reasoning is that the trial judge’s admonition negated any substantial likelihood of improper *488 influence. But as shown above, the judge’s words could not have cured or prevented the threatened harm: they did not bar—but indeed, impliedly allowed—consideration of the Bible verses in question. 1
For the foregoing reasons, I would reverse the judgment of death.
Appellant’s petition for a rehearing was denied May 27, 1992, and the opinion was modified to read as printed above.
Because of the result I reach, I need not consider whether the federal constitutional violations found above would require reversal in and of themselves. But if I were to address the question, I would give an affirmative response. It is, of course, the rule that error of federal constitutional dimension is not automatically reversible, but rather is subject to harmless-error analysis under the standard of Chapman v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705, 710-711 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ], viz., was the eiror harmless beyond a reasonable doubt? The rule covers all ordinary “trial error[s].” (Arizona v. Fulminante (1991) _ U.S. _, _ - _ [ 113 L.Ed.2d 302, 329-330 , 111 S.Ct. 1246, 1263-1264 ].) Excepted therefrom are “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” (Id. at p. __ [ 113 L.Ed.2d at p. 331 , 111 S.Ct. at p. 1265 ].) The violations here would require reversal. They appear to fall within the exception of automatic reversibility: they call the impartiality of the jury into serious question and thereby undermine the very integrity of the trial. But even if they come within the rule of harmless-error analysis, the result is the same: in view of the discussion set out above, they cannot be deemed harmless beyond a reasonable doubt.