People v. Beeler

KENNARD, J., Concurring and Dissenting.

I concur in the majority’s affirmance of the judgment as to guilt and the special circumstance but not as to the penalty of death.

The father of Juror Michael Coley, one of the jurors in this case, died during the jury’s deliberations over whether defendant Beeler should receive the death penalty. The trial court then met ex parte with Juror Coley and, without inquiring into his emotional condition or giving any admonition to guard against a rushed or poorly considered verdict, directed Juror Coley to resume deliberations immediately after the death of his father under a one-hour deadline. The majority holds that the trial court did not err and that the verdict of death returned by the jury under these circumstances is sound.

Justice Baxter and I both agree that the trial court erred. Unlike Justice Baxter, however, I am of the view that we must conclude on this record that the error was prejudicial. Therefore, I would not leave this issue for resolution on habeas corpus, but would resolve it on appeal and reverse the judgment as to the penalty of death.

I

On a Tuesday morning, the start of the third day of the jury’s penalty phase deliberations, Juror Coley informed the court clerk that his father, with whom he had a “close relationship,” had just died and that he needed to leave the state that afternoon on a 2 p.m. flight to attend his father’s funeral. The court met briefly with Juror Coley around 10 a.m. Defendant was not present, nor was his counsel or the prosecutor. Both attorneys were together at another courthouse and had telephoned the court at 9 a.m., at which time the bailiff told them of Juror Coley’s situation but not of the court’s plans to talk to Juror Coley. When both attorneys again called the court at 9:40 a.m., the bailiff informed them that Juror Coley would be coming to court at 10 a.m. Counsel proceeded directly to court and arrived at 10:20 a.m., after the court had concluded its ex parte meeting with Juror Coley.

In its ex parte meeting with Juror Coley, the trial court first discussed the matter with Juror Coley off the record. The court then summarized their *1012 discussion on the record. Without inquiring into Juror Coley’s emotional state or giving him or the other jurors any admonitions, the court instructed him to resume deliberations with the jury for approximately an hour, at which time the jury would adjourn until the following Monday, six days later.

Deliberations resumed. When counsel and defendant arrived, the defense objected to continuing deliberations and moved to replace Juror Coley with an alternate juror. The trial court denied the request. A short time later, less than an hour after it had resumed deliberations, the jury announced it had reached a verdict. The trial court inquired of the jury panel whether the verdict had been affected by the death of Juror Coley’s father or by the deadline posed by Juror Coley’s imminent departure. The jury foreperson answered “no” to both questions; no other juror responded. The jury returned a verdict of death.

II

The majority analyzes the trial court’s conduct in directing the jury to continue deliberations in the manner it did after the death of Juror Coley’s father solely in terms of Penal Code section 1089, which provides that if a juror “upon . . . good cause shown to the court is found to be unable to perform his duty, or . . . requests a discharge and good cause appears therefor, the court may order him to be discharged . . . .” More fundamental constitutional rights, however, are also implicated by the trial court’s course of action.

“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 [ 71 L.Ed.2d 78, 86 , 102 S.Ct. 940 ], 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, 726-728 [ 119 L.Ed.2d 492, 501-502 , 112 S.Ct. 2222, 2228-2229 ].) Indeed, at the penalty phase there is a “heightened ‘need for reliability in the determination that death is the appropriate punishment’ ” (Caldwell v. Mississippi (1985) All U.S. 320, 340 [ 86 L.Ed.2d 231, 246 , 105 S.Ct. 2633 ]), and for “the responsible and reliable exercise of sentencing discretion” (id. at p. 329 [ 86 L.Ed.2d at p. 239 ]).

Here, the events surrounding the death of Juror Coley’s father were potentially “prejudicial occurrences.” (Smith v. Phillips, supra, 455 U.S. 209, *1013 217 [ 71 L.Ed.2d 78, 86 ].) The trial court’s response, however, formulated without the presence or knowledge of defendant and his counsel, aggravated unacceptably the risk that the jury would not decide the case “solely on the evidence before it” (ibid.) in a manner satisfying the “heightened ‘need for reliability’ ” (Caldwell v. Mississippi, supra, 472 U.S. 320, 340 [ 86 L.Ed.2d 231, 246 ]) in capital sentencing.

The trial court’s error here was not the mere fact, without more, that a juror continued to sit after the death of an immediate family member. Rather, the error has three aspects: (1) The trial court’s requirement that Juror Coley immediately resume deliberations on the morning of his father’s death without inquiring into or making a record of Juror Coley’s emotional condition and without giving him or the other jurors any admonition not to rush their deliberations. (2) The court’s requirement that the jury resume deliberations for an hour under the condition that if it did not reach a verdict within that brief time it would have to return six days later. This schedule created a great risk that Juror Coley and the other jurors, unconsciously or otherwise, would hasten their deliberations and suppress any uncertainties or disagreements to reach a verdict within an hour so that Juror Coley could be on his way and so that they would not have to return a week later to resume deliberations. (3) The court’s action in reaching these decisions by an ex parte and partially unrecorded proceeding with Juror Coley, thereby denying defendant and his counsel an opportunity to participate, and the court’s refusal to reconsider the course it had adopted once defendant and his counsel did appear and object.

Although not every juror who suffers a death in the family will need to be discharged, the trial court’s mode of proceeding here failed to ensure that Juror Coley and the other jurors would return an unhurried verdict that was the product of composed and deliberate reflection. As the concurring and dissenting opinion by Justice Baxter aptly observes, courts have long recognized the human reality that the death of an immediate family member can have a profound effect on jurors and can disrupt the calm, dispassionate, and focused deliberation they must bring to bear on their sworn task of deciding guilt or, as here, whether a defendant should be put to death. Accordingly, in this case there was a great risk that the emotional trauma of the death of his father would cloud Juror Coley’s deliberations, as well as a risk that it would also distract the other jurors.

The trial court, however, did not inquire into Juror Coley’s emotional condition. It did not ask him whether he was distressed or whether he felt capable of resuming deliberations immediately. It did not give Juror Coley or the other jurors any admonitions to ensure that deliberations continued in a calm, unhurried manner.

*1014 Instead, the trial court exacerbated the potential for prejudice by directing Juror Coley to resume deliberations with the other jurors under the pressure of returning a verdict within an hour to avoid having to return a week later. That deadline created a strong incentive for the jurors to reach a verdict within that brief period, however much they might attempt to put that incentive out of their minds and deliberate fully and conscientiously. The jurors should not have been placed in that compromising position. (See People v. Hutchinson (1969) 71 Cal.2d 342, 346, 351 [ 78 Cal.Rptr. 196 , 455 P.2d 132 ] [bailiff’s remarks at the end of a day of deliberations that if jury did not reach verdict in a few minutes it would be locked up overnight were “ ‘likely to have influenced the verdict improperly’ ”]; People v. Carter (1968) 68 Cal.2d 810, 817 [ 69 Cal.Rptr. 297 , 442 P.2d 353 ] [conviction reversed; jury returned verdict 10 minutes after being told that if there was no verdict within a half-hour the jury would be locked up for the night; court looked to whether “the independent judgment of the jury [was displaced] in favor of considerations of compromise and expediency”]; People v. Crowley (1950) 101 Cal.App.2d 71, 78-79 [ 224 P.2d 748 ] [conviction reversed; jury, upon being told at 4:30 p.m. that if no verdict was reached by 5 p.m. the jury would be locked up for the night, returned a verdict at 5 p.m.].)

Finally, the trial court acted without the participation or presence of counsel or defendant. This ex parte proceeding further contributed to the error, for had counsel and defendant been present when the court spoke to Juror Coley, there doubtless would have been inquiry into Juror Coley’s emotional condition and objection to resuming deliberations for the brief period before Juror Coley had to depart. Defense counsel did raise these objections immediately upon being informed of what the trial court had done, before the jury returned its verdict.

“[A] defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” (Kentucky v. Stincer (1987) 482 U.S. 730, 745 [ 96 L.Ed.2d 631, 647 , 107 S.Ct. 2658 ].) In particular, due process and the right to counsel give the defendant the right to be present with counsel at communications of substance between the court and a juror. (People v. Wright (1990) 52 Cal.3d 367, 402 [ 276 Cal.Rptr. 731 , 802 P.2d 221 ].) “ ‘This rule [against ex parte communications] is based on the precept that a defendant should be afforded an adequate opportunity to evaluate the propriety of a proposed judicial response in order to pose an objection or suggest a different reply more favorable to the defendant’s case.’ [Citations.]” (Ibid.)

Here, had defendant and his counsel been present, they would have contributed to ensuring the fairness of the jury’s deliberations by probing *1015 whether Juror Coley was emotionally capable of deliberating in the manner required by the California and federal Constitutions and by making certain that the jury was not subject to the external pressure of a deadline. This is shown by the questions and objections the defense did pose once counsel and defendant arrived in court. Thus, the trial court’s ex parte proceeding was error.

Because “such [ex parte] communications . . . constitute federal constitutional error,” reversal is required unless the prosecution can establish from the record that the error is “harmless beyond a reasonable doubt.” (People v. Wright, supra, 52 Cal.3d at p. 403 ; see also People v. Whitt (1990) 51 Cal.3d 620, 671 [ 274 Cal.Rptr. 252 , 798 P.2d 849 ] (conc. & dis. opn. of Kennard, J.).) The prosecution has not carried its burden of showing the error harmless beyond a reasonable doubt on the record before us. 1

Nor can the trial court’s decision to proceed ex parte be excused, as the majority attempts to do, on the ground that it was merely a brief, routine administrative communication. Juror Coley was not asking where he could get a cup of coffee or how to get reimbursed for mileage. He was informing the court of an emotionally disturbing event that had just occurred and of his need to leave the state immediately. In acting as it did, the trial court made an ex parte decision, without the participation of the defense, as to whether Juror Coley was capable of continuing deliberations and whether deliberations should resume under the deadline presented by Juror Coley’s impending departure. These are not mere administrative decisions.

III

The majority misguidedly attempts to support its conclusion that no error occurred by relying on the record’s silences as to Juror Coley’s emotional *1016 state and the effect of the trial court’s deadline on the jury’s deliberations. Initially, it is important to recall that the trial court did not record its entire conversation with Juror Coley but only recited a summary of the information the court had received from Juror Coley. The majority holds that defendant’s claim fails because this partial record does not show a request by Juror Coley to be discharged, does not show a request by Juror Coley that he not be required to deliberate on the day of his father’s death, and does not show that any other juror was affected by the circumstances.

These gaps in the record, however, are not chargeable to defendant. A significant part of the trial court’s error was its failure to permit defendant to make a full record of the relevant circumstances or to make such a record itself. In doing so the court did not only deny defendant the opportunity to make a contemporaneous record (important when attempting to inquire into subjective and transient mental conditions like a juror’s emotional state after a death in the family). It also denied defendant forever the opportunity to make a record of the effect of the death of Juror Coley’s father and the trial court’s deadline on the deliberations and mental processes of Juror Coley and the other jurors, because under Evidence Code section 1150 such matters may only be inquired into before the verdict is reached. 2 Evidence Code section 1150 prohibits jurors from testifying as to “the effect of [any] statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” (Evid. Code, § 1150, subd. (a); see also People v. Hutchinson, supra, 71 Cal.2d at p. 350 [“The only improper influences that may be proved under section 1150 ... are those open to sight, hearing, and the other senses and thus subject to corroboration.”].) Evidence Code section 1150 codifies the long-standing rule that a juror “ ‘may testify to any facts bearing upon the question of the existence of the disturbing influence, but he cannot be permitted to testify how far that influence operated upon his *1017 mind.’ ” (People v. Stokes (1894) 103 Cal. 193, 197 [ 37 P. 207 ].) Although Evidence Code section 1150 prohibits postverdict inquiries into a juror’s mental processes, it does not bar preverdict inquiries. “By its very language, this section applies only to postverdict inquiries into how error or misconduct had affected the juror in reaching the verdict. [Citation.] The section does not prohibit individual questioning of jurors [during deliberations] to assure the court there will be no future harm, to obviate any such harm, or to strengthen the effectiveness of an admonition.” (People v. Cooper (1991) 53 Cal.3d 771, 838 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ], original italics.)

The majority’s reliance on the record’s silences erroneously imposes on defendant the consequences of the trial court’s error and the burden of proving it harmless. 3 As the United States Supreme Court has held, violations of fundamental rights cannot be ignored simply because “the precise consequences . . . cannot be shown from a trial transcript.” (Riggins v. Nevada (1992) 504 U.S. 127, 137 [ 118 L.Ed.2d 479, 491 , 112 S.Ct. 1810, 1816 ].) “The actual impact of a particular practice on the judgment of jurors cannot always be fully determined. But this Court has left no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny. [Citations.] Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience.” (Estelle v. Williams (1976) 425 U.S. 501, 504 [ 48 L.Ed.2d 126, 130 , 96 S.Ct. 1691 ]; see also People v. Stokes, supra, 103 Cal. at pp. 198-199 [reversing conviction where an “ ‘irregularity was shown which may have influenced’ ” the jury’s verdict because “[w]e cannot say that the verdict of guilty is based wholly upon the evidence introduced at trial”].)

Accordingly, the majority’s attempt to support its position by resting on a record that the trial court’s error has in crucial respects left forever mute must fail. Because reason, principle, and common human experience teach us that a deadline for deliberation and the death of a father are both substantial impediments to calm, dispassionate, focused decisionmaking; because the trial court took no steps to ameliorate the impact of these *1018 impediments; and because nothing in the record shows that these impediments did not have their ordinary and expected effects in this case, I would reverse the penalty phase judgment. 4

IV

When a juror has suffered a death in the family, the trial court at a minimum should conduct a sensitive inquiry into whether the juror is able to continue deliberations or will be able to do so after a reasonable interval. Appropriate admonitions to the affected juror and to the other members of the panel may help assure that if and when deliberations resume they continue in a calm and dispassionate manner, focused solely on the evidence, and without any rush to judgment. The resumption of deliberations can be scheduled so that the jurors do not deliberate under the pressure of a deadline. The defendant can be afforded an opportunity to participate in the decision as to how best to avoid the substantial risk of prejudice inherent in the situation and to bring out any relevant circumstances that the trial court has not explored.

None of that occurred in this case, however. Accordingly, I would reverse the judgment of death.

The two cases relied on by the majority, People v. Ashmus (1991) 54 Cal.3d 932, 986-987 [ 2 Cal.Rptr.2d 112 , 820 P.2d 214 ] and In re Mendes (1979) 23 Cal.3d 847, 852 [ 153 Cal.Rptr. 831 , 592 P.2d 318 ], for its conclusion that the trial court did not err in acting ex parte are not to the contrary. Both cases involved the trial court’s discharge without a hearing of a juror after a death in the juror’s immediate family. The ex parte discharge of a possibly impaired juror as occurred in Ashmus and Mendes , whether or not in compliance with Penal Code section 1089 and whether or not the juror is actually impaired, moots any constitutional question because it removes any possibility that an impaired juror would sit in judgment in the case. Any error in proceeding to discharge the juror in the absence of counsel and the defendant could not harm the defendant’s right to an impartial jury, nor could the presence of the defendant and his counsel have further increased the impartiality of the jury, since the possibly impaired juror was no longer on the panel. By contrast, the ex parte decision in this case to retain a possibly impaired juror (not to mention the further ex parte decision to have the jury deliberate under deadline) was not similarly harmless. It risked denying defendant his right to an impartial jury; furthermore, the presence of defendant and his counsel would have reduced the risk of that erroneous and unfair outcome occurring.

Accordingly, the trial court’s postverdict inquiry of the jurors was improper and cannot be used to support the conclusion that no error occurred. The court’s questions to the jury asked about the influence of the death of Juror Coley’s father and of Juror Coley’s imminent departure on the mental processes of the jurors in arriving at their verdict of death. By its inquiry, the court sought answers that Evidence Code section 1150 prohibits, i.e., “the effect of [any] statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” (Evid. Code, § 1150, subd. (a); see also People v. Hutchinson, supra, 71 Cal.2d at pp. 349-350.)

Moreover, even if it were admissible, the trial court’s inquiry was cursory and ineffectual, consisting of only two questions to the panel as a whole. Only the jury foreperson answered. The trial court did not ask any questions individually of Juror Coley or any other juror. The manner in which the trial court framed the two questions it asked of the panel as a whole put the burden on any juror who disagreed with the foreperson’s response to volunteer that disagreement and disown before the other jurors the verdict they had all just agreed to moments before.

The majority also ignores the significant practical obstacles with which it has burdened defendant by requiring him at this late date to investigate and make the record that the trial court should have made. Because of the trial comt’s error, defendant is faced with the difficult task of attempting to locate Juror Coley and the other jurors and persuading them to voluntarily assist a man whom they have sentenced to death in his efforts to overturn the verdict that they agreed to.

Likewise, in In re Mendes, supra, 23 Cal.3d 847, 852 , one of the cases the majority relies on, there was no evidence in the record as to the emotional state of a juror whose brother had died, but we presumed that “normal grief would make it exceedingly difficult for [the juror] to concentrate on the evidence, the arguments of counsel, the court’s instructions and the jury’s deliberations.” (Ibid.) There is no reason not to presume the ordinary effects of “normal grief’ operated in this case as well. Nor, contrary to the majority, did the record in Mendes contain any request by the juror to be excused. Instead, as here, the record did not contain the full exchange between the court and the juror and showed no request by the juror to be discharged. We only inferred such a request had occurred.