People v. Keenan

KAUFMAN, J.

I concur in the affirmance of the judgment as to guilt and the sustaining of the special circumstance findings. However, I respectfully dissent from the affirmance of the judgment as to penalty. In my view the record discloses a reasonable possibility (People v. Brown, ante, pp. 448-449) that certain remarks by the court during the penalty phase, superimposed upon an emotional episode that had already occurred in the jury room, had an improperly coercive effect upon the jury’s deliberations and improperly influenced the verdict.

To begin with, the majority misconceives the nature of defendant’s contentions regarding coercion. Principally, defendant raises two related points: (1) a very aggressive verbal attack by a male juror on an elderly female holdout juror during the jury’s deliberations resulting in the holdout’s becoming emotionally upset and sick to her stomach; and (2) potentially coercive remarks by the court to the jury when they were having difficulty reaching a verdict, which the holdout juror must have believed were directed at her.

The majority insists on treating these issues separately, concluding that, individually, neither the episode in the jury room nor the court’s remarks were coercive. This approach is inappropriate, however. “The basic question ... is whether the remarks of the court, viewed in the totality of applicable circumstances, operate[d] to displace the independent judgment of the jury in favor of considerations of compromise and expediency.” (People v. Carter (1968) 68 Cal.2d 810, 817 [ 69 Cal.Rptr. 297 , 442 P.2d 353 ], italics added.) The heated verbal attack upon the holdout juror earlier the same day by another juror was part of the coercive atmosphere in which *546 the holdout juror heard and interpreted the court’s statements. The question to be determined is how those statements likely affected her. Thus, the jury’s division and the emotional state of the holdout juror at the time the court made its remarks are clearly relevant to the analysis. Fairness and accuracy dictate that the two contentions be considered together rather than separately.

The record discloses the following. Juror Zadonsky was an elderly woman. A defense investigator’s declaration indicates that, on the afternoon of Friday, December 10, Zadonsky was the lone holdout against imposing the death penalty. According to that declaration and one by Jury Foreman Piazza, Zadonsky was verbally attacked by Juror Walker as he tried to convince her to change her mind and vote for death. The investigator said Walker’s tirade included an outright death threat; Piazza could not recall the specific words Walker used. According to Piazza, Walker’s tirade left the elderly Zadonsky crying and shaking. Zadonsky went to the bathroom where, Piazza believed, she vomited. 1

Foreman Piazza then told the other jurors that Zadonsky should not vote at that time because she was so upset. The foreman sent the judge a note which stated: “One person doesn’t remember that during the jury selection he said we [sic] could vote for the death penalty.” (Italics added.) After being summoned for additional instruction, the jury was sent back to the jury room. Later that same afternoon, the foreman sent the judge a second note which stated: “Your Honor, we have a juror who cannot morally vote for the death penalty.” (Italics added.) The judge then recalled the jury to the courtroom and spoke to the jurors.

The court first announced its belief that “the jury has a problem,” and stated the court was required to investigate by questioning the foreman and, perhaps, “the one or more jurors who may be having difficulty in reaching a verdict. . . .” (Italics added.) The court also stated it might have to permit counsel “to question one or more of the jurors.'’’’ The court said that if necessary it would “make a determination . . . whether or not one or more of the jurors are refusing to adhere to the law and the evidence . . . .” The court declared it had thought “the jury would have a verdict by this afternoon. ” (Italics added.) The court stated, however, it intended to recess at that time and send the jury home for the weekend. It advised the jurors to recall their oaths and search their consciences.

*547 The court then recognized Jury Foreman Piazza, who stated that a weekend release would be a “fine gesture,” and that “by searching our conscience ... we should have a verdict come Monday.” The court responded, “Good. Well, I’m glad to hear you say that. I appreciate that.’' (Italics added.)

On Monday morning, the jury reassembled, and before any further jury deliberations commenced Jury Foreman Piazza was brought into the courtroom individually for questioning by the court. He said that “the statement I got this morning was, it has been resolved. The weekend that you gave us, your Honor, I believe cleared everybody’s minds . . . .” The foreman was then apparently returned to the jury room and deliberations resumed.

Defendant complained at this point that the foreman’s statement indicated the jury had discussed the case in violation of the standard admonition. Foreman Piazza was once again brought into the courtroom. He reported that the only discussion which took place was “an apology. [The juror in question had stated:] T needed the weekend.’ And that was it.” The court asked, “The individual who made that apology just approached you without any question from you?” and the foreman responded, “Yes, sir.” The jury recommenced deliberations and, after just an hour, returned a verdict of death.

The jury was then polled. The first four jurors were each asked whether they had individually voted to impose the death penalty, and in turn each responded, “Yes.” Then the same question was directed to Juror Zadonsky. At first she made no audible response and only nodded. Only after additional questioning by the court did Juror Zadonsky ultimately answer affirmatively.

According to defense counsel’s statements to the court at the January 21, 1983, hearing, a defense investigator visited Zadonsky to discuss these matters, but Zadonsky did not answer her door nor respond to a note left for her. Later defense counsel spoke to Zadonsky himself, but she refused to sign any declaration. Defense counsel reported to the court that Zadonsky “simply does not want to be involved in this any more . . . .”

In determining whether there is a reasonable possibility coercion occurred, we attempt to ascertain whether, from the affected juror's perspective, the court’s remarks tended to displace the juror’s independent judgment in favor of considerations of compromise and expediency. (People v. Carter, supra, 68 Cal.2d at p. 817 ; People v. Crossland (1960) 182 Cal.App.2d 117, 119 [ 5 Cal.Rptr. 781 ]; see People v. Gainer (1977) 19 Cal.3d 835, 849-850 [ 139 Cal.Rptr. 861 , 566 P.2d 997 , 97 A.L.R.3d 73 ]; People v. Crowley (1950) 101 Cal.App.2d 71, 75-79 [ 224 P.2d 748 ].) Whether a trial court’s statements to the jury amount to coercion of the verdict is *548 “peculiarly dependent upon the facts of each case” (People v. Burton (1961) 55 Cal.2d 328, 356 [ 11 Cal.Rptr. 65 , 359 P.2d 433 ]) viewed against the “totality of applicable circumstances.” (People v. Carter, supra, 68 Cal.2d at p. 817 .) The concern is not what the court intended to convey or thought it was conveying but, rather, what the affected juror or jurors could reasonably understand the court’s statements to mean. (People v. Crossland, supra, 182 Cal.App.2d at p. 119 ; People v. Crowley, supra, 101 Cal.App.2d at p. 75 et passim; see also People v. Carter, supra, 68 Cal.2d at p. 816 .)

I have not the least doubt that the trial court here was trying very hard to avoid error. I think that accounts for the court’s using the language “one or more jurors” when the notes from the jury foreman referred to “one juror” and “a juror.” Nevertheless, at the very least the record compels the conclusion there is a realistic possibility Juror Zadonsky was coerced, i.e., that her independent judgment was overridden in favor of considerations of compromise and expediency. Juror Zadonsky well knew she was the lone holdout. (See People v. Carter, supra, 68 Cal.2d at p. 818 ; People v. Crowley, supra, 101 Cal.App.2d at p. 75 .) She had already been emotionally upset by the verbal attack against her by a fellow juror angry at her holding out, to the point that she had to leave the jury room. Now the jury was summoned back into the courtroom, and because Juror Zadonsky knew she was the lone holdout, she would reasonably interpret the court’s remarks about its having to investigate “one or more jurors” and determine whether “one or more jurors are refusing to adhere to the law and the evidence,” and about its having to permit the attorneys to question “one or more jurors,” and its directives to “search your conscience” and “recall your oath,” as being aimed directly at her.

The court’s statements that it had expected a verdict by that afternoon and that it would appreciate a verdict by Monday were particularly unfortunate. “Coercion has been found where the trial court . . . expressed an opinion that a verdict should be reached. (People v. Crossland (1960) 182 Cal.App.2d 117, 119 [and cases there cited] . . . ; People v. Crowley (1950) 101 Cal.App.2d 71 , 75 . . . .)” (People v. Rodriguez (1986) 42 Cal.3d 730, 775 [ 230 Cal.Rptr. 667 , 726 P.2d 113 ].) Juror Zadonsky may well have interpreted these statements as meaning the court expected a verdict on Monday and that it wanted her personally to resolve any lingering doubts she may have about the appropriateness of imposing the death penalty. It is also highly likely Zadonsky believed that, by agreeing to the death verdict on Monday, she could avoid the threatened investigation by the court and the attorneys of the jury room incident and of her reluctance to vote for death.

I must disagree with the majority’s view that the foreman’s two notes to the judge “[s]ingly and in combination . . . could mean that a juror or *549 jurors were now expressing absolute refusal to consider the death penalty . . . .” (Maj. opn., at p. 533, ante, original italics.) This is not a fair or accurate characterization of the foreman’s notes. The first note stated: “One person doesn’t remember that during the jury selection he said we [sic) could vote for the death penalty.” (Italics added.) The second note stated: “Your Honor, we have a juror who cannot morally vote for the death penalty.” (Italics added.) In view of the singular terms “One person” and “a person” used in the notes, the trial judge knew or should have realized there was a single holdout. Also, from the statement in the second note, “we have a juror who cannot morally vote for the death penalty,” the court was apprised that that holdout was against the death penalty and in favor of imposing life without possibility of parole. Thus, the court should have realized the jury was split 11 to 1 in favor of death.

As this court explained in People v. Carter, supra, 68 Cal.2d at page 820 : “We have observed . . . that the task of the judge, when dealing with a jury experiencing difficulty in reaching agreement, is in any case an extremely delicate one. The sensivity of that task is augmented when it appears that a small number of jurors opposes the views of the majority, for the tendency of the majority to attempt to impose its will on the minority by means other than rational persuasion can only be made greater, and therefore more pernicious, by intemperate adjurations from the bench.” As indicated earlier, however, what the court intended is not nearly as significant as what the affected juror reasonably understood.

I am unconvinced the court’s statements on Monday—asking the jury to disregard any coercive inference from its comments on Friday—had the curative effect the majority posits. While the court’s statements might have been sufficient to eliminate any misunderstanding if they were uttered on Friday, by Monday the damage had been done. The quick verdict on Monday, coming as it did on the heels of a tense jury division late Friday, together with Juror Zadonsky’s hesitancy to state the verdict was hers and her obvious desire to have nothing more to do with the case, persuade me that the court’s specific disclaimer had little effect and that Juror Zadonsky had over the weekend decided to avoid further trouble by throwing in the towel.

Obviously, the trial judge made efforts not to coerce the jury. Indeed, much of the judge’s additional instructions were appropriate and, from a legal standpoint, not erroneous. However, in light of the totality of the applicable circumstances, “our concern must be what the jury of laymen may have understood [the judge] to mean . . . .” (People v. Crossland, supra, 182 Cal.App.2d at p. 119 .) By his remarks of Friday afternoon, the trial judge inadvertently gave the impression that he believed a verdict should be easy to reach, that he was surprised a verdict had not been *550 reached by that time, and that he would appreciate the jury’s reaching a verdict on the following Monday. These statements coupled with the court’s urging the jurors to search their consciences and recall their oaths could well have been interpreted by the holdout juror as indicating an opinion on the part of the judge that the court expected and wanted a death penalty verdict returned on Monday.

Therefore, I cannot concur in the majority’s conclusion that “any potential for improper coercion seems minimal ....’’ (Maj. opn., ante, at p. 534.) In my view the record gives rise to a reasonable possibility the holdout juror’s vote to impose the death penalty was improperly coerced by the trial court’s remarks. Accordingly, I would reverse the judgment as to penalty and remand for a new penalty trial.

Mosk, J., and Broussard, J., concurred.

Appellant’s petition for a rehearing was denied October 31, 1988, and the opinion was modified on September 22 and October 31, 1988, to read as printed above. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.

As the majority notes, the record contains a counterdeclaration by Juror Walker denying the death threat but admitting that he rose from his chair sometime on Friday afternoon and said to Juror Zadonsky: “I don’t think you are as stupid as you are acting.” Apparently, in his declaration Walker did not controvert the reports that Zadonsky had suffered a severe emotional and physical reaction during the episode.