Petition — Clanon v. Gibson
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89- Office-Supreme Court U.S
Nos. 1339 PILE DS
In the Supreme Court FEB 5 1961
OF THE
CLERK
ALEXANDER L. STEVAS,
United States
OcrosBer Term, 1980
Tomas L. Cuanon, Superintendent of the
California Medical Facility at Vacaville,
Petitioner,
vs.
Earu B. Grsson,
Respondent.
Grorce SuMNER, Superintendent of the
Correctional Training Facility at Soledad,
Petitioner,
VS.
LAWRENCE JUSTICE,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY R. HERMAN
District Attorney, Marin County
COUNSEL OF RECORD
JosHua THOMAS
Deputy District Attorney, Marin County
Civic Center
155 Hall of Justice
San Rafael, CA 94903
(415) 499-6450
Attorneys for Petitioners
“
QUESTIONS PRESENTED
Whether, in a state criminal trial,
the attempt by certain jurors to gather iso-
lated data of marginal relevance requires the
setting aside of the convictions, despite
overwhelming evidence of guilt.
otis
TOPICAL INDEX
Page
QUESTIONS PRESENTED i
TOPICAL INDEX ii
TABLE OF CASES iv
TEXTS, STATUTES AND AUTHORITIES iv
OPINIONS BELOW 2
JURISDICTION 2
CONSTITUTIONAL PROVISION INVOLVED 3
“STATEMENT OF THE CASE 3
A. State Court Proceedings 3
STATEMENT OF THE FACTS
A. The Crimes 6
B. Facts relevant to respondents'
contentions on federal habeas
corpus 19
Ll. Juror Grist: Type AB
blood and its rarity 19
Be Juror Gauger: Morphine
dosage and perception 22
Fe The evidentiary importance
of the matters raised 26
(a) The rarity of type
AB blood 26
(b) The morphine dosage
and perception 30
REASONS FOR GRANTING THE WRIT 32
2
ARGUMENT
CONCLUSION
-iii-
TOPICAL INDEX
(Continued)
Page
35
43
-iv-
TABLE OF CASES
Chapman v. California
386 U.S. 18 (1967)
Harrington v. California
395 u.S. 250 (1969)
People v. Hutchinson
71 Cal.2d 342 (1969)
Sumner v. Mata
49 U.S.L.W. 4133 (1981)
TEXTS, STATUTES AND AUTHORITIES
United States Constitution
Amendment XIV, Section l
United States Code
Title 28, Section 1254(1)
Penal Code
§ 187
§ 4500
§ 4501
34, 35
Ww WwW
IN THE SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1980
THOMAS L. CLANON, SUPERINTENDENT OF THE
CALIFORNIA MEDICAL FACILITY AT VACAVILLE
Petitioner,
Vs.
EARL B. GIBSON,
Respondent.
GEORGE SUMNER, SUPERINTENDENT OF THE
CORRECTIONAL TRAINING FACILITY AT SOLEDAD,
Petitioner,
Vs.
LAWRENCE JUSTICE,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
The petitioners, Thomas Clanon and
George Sumner, superintendents of correc-
tional facilities in California, respectfully
pray that a writ of certiorari issue in this
|
o2-
case to review the judgment of the United
States Court of Appeals for the Ninth
Circuit, which judgment was entered on
December 8, 1980.
OPINIONS BELOW
The opinion of the Court of Appeals
for the Ninth Circuit appears as Appendix A
to this petition and may be found at 633 F.2d
851. The opinion of the United States
District Court for the Northern District of
California appears as Appendix B. The opin-
ion of the California Court of Appeal, First
Appellate District, Division One, appears as
Appendix C.
JURISDICTION
Jurisidiction is conferred upon this
Court by Title 28, United States Code, sec-
tion 1254(1). This petition is filed within
60 days of the rendition of judgment by the
court of appeals.
es,
CONSTITUTIONAL PROVISION INVOLVED
United States Constitution, Amend-
ment XIV, section 1: "[NJor shall any state
deprive any person cf life, liberty, or prop-
erty, without due process Of law. . « «”
STATEMENT OF THE CASE
A. State Court Proceedings
On November 16, 1971, the Marin
County Grand Jury indicted respondents Earl
- B. Gibson and Lawrence Justice for the fol-
lowing violations of the applicable provi-
sions of the California Penal Code: (1)
murder, in violation of section 187 (both
appellants); (2) assault upon a non-inmate by
one serving a life sentence, in violation of
section 4500 (Gibson); (3) assault by one
serving less than a life sentence, in viola-
tion of section 4501 (Justice); (4) a second
violation of section 4500 by Gibson; (5) a
second violation of section 4501 by Justice.
The indictment further alleged that Gibson
whe
had suffered one prior felony conviction and
that Justice had suffered three prior felony
convictions (CT 1-4) ./
After numerous pretrial motions (CT
6-300), the cause came on for trial by jury
on December 12, 1972 (CT 309). On April 18,
1973, the jury found respondents guilty of
all charges against them (CT 464-465, 466,
467).
On June 22, 1973, respondent's
motion for probation was denied and they were
sentenced to state prison for one count of
murder of the first degree. Sentence was
stayed on the other counts (CT 579-580).
The California Court of Appeal,
First Aprellate District, Division One,
affirmed the judgments of conviction on
November 14, 1975 (Exh. C). The California
Supreme Court denied respondent's petition
1. "CT" refers to the Clerk's Transcript
of the trial in state court.
<=
for hearing on January 21, 1976. This Court
denied a petition for writ of certiorari on
June 7, 1976 (No. 75-6608).
B. Federal Court Proceedings
Respondents filed a petition for
writ of habeas corpus on June 2, 1976 (R
1-6) ./ After full briefing and argument,
the petition for writ of habeas corpus was
denied on February 15, 1977 (R 151-168).
Appeal to the Ninth Circuit followed.
On December 8, 1989, the Ninth
Circuit reversed the order denying the writ
of habeas corpus, and ordered that the writ
be granted unless the State of California
elects to grant a new trial within 60 days.
633 F.2d at 855.
2. "R" refers to the Record which has
been designated and prepared in the federal
proceedings in this case.
wie
STATEMENT OF THE FACTS
A. The crimes
The opinion of the California Court
of Appeal provides a full and fair statement
of the relevant facts. We quote from the
court's opinion (App. C, pp. 2-12).
“Herman Johnson, an inmate in
San Quentin Prison, testified that
Gibson had accused him of being a
witness in a case involving the
murder of a correctional officer at
Soledad Prison. Johnson denied the
accusation, but notwithstanding his
denial Gibson told him on two occa-
sions that he was going to ‘get hit.'
"On July 19, 1971, Johnson
encountered Gibson and Justice at
the foot of a flight of stairs.
Johnson was stabbed in the neck by
Gibson and was taken to the prison
hospital. On the following day
7%
-%
aVe
Gibson went to football practice.
He complained of an injury to his
back and was taken to the prison
hospital. Gibson was examined the
next morning by a doctor who deter-
mined that there was no external
evidence of injury and authorized
his release from the hospital.
"Johnson had been assigned to
room 202 on the second floor of the
prison hospital. For security pur-
poses Officer Leo Davis was placed
in front of the door to Johnson's
room. Johnson testified that on
July 21, 1971, at around noon, he
heard a 'scuffling' sound outside
his door. The door to his room,
which was locked, had a small window
and a food tray ‘porthole.’ Johnson
observed Gibson, Justice and a third
person whom he described as a tail
black man who wore his hair ina
large natural. The three men were
dressed in jail blues, and Gibson
wore a blue wool cap. Johnson
observed the unidentified man
holding Officer Davis around the
neck while Gibson and Justice struck
him. Johnson stated that at one
point he saw Justice pass a knife to
the unidentified man who then hit
the officer. Johnson heard a
whistle blow softly and then heard
someone say, "He don't have the
key.'
"Ivan Kranzelic, an inmate on
the fcurth floor of the prison
hospital, testified to certain
events which he claimed to have
observed immediately preceding and
following the attack on Officer
Davis. Although he acknowledged
aSe
that he had received morphine for
pain, he denied sleeping. He stated
that on the day of the attack, at
about 8:30 a.m., a man known as
'Choice' brought Gibson a pair of
pajamas. ‘Choice’ left and returned
about 20 minutes later at which time
Ricardo Cooper, 'Monky D' Palmer and
an unidentified tall black man were
present. At about 10:00 a.m., Dr.
Erickson examined Gibson and when he
left Gibson inquired of Palmer,
‘"Monky D," did you brought that
things in?' When Palmer stated that
he had Gibson said, 'We have to do
it today, doctor might put me ina
cast.' Gibson, 'Choice,' Cooper and
the tall black man went into the
washroom. When they came out
Kranzelic observed Gibson changing
into a blue shirt and blue pants and
10»
observed Palmer hand a 'shank' to
Gibson, which ‘Choice’ then placed
between a bunch of pajamas. Gibson
asked Cooper how he could pass by
Miss Baldwin and Cooper said he
would take care of that. Cooper
took Kranzelic's crutches, telling
him they were for Gibson. Cooper,
Gibson and ‘Choice’ ieft the room.
A few minutes later Palmer left.
"About 20 minutes later,
Cooper, Gibson and 'Choice'
returned. They were walking
rapidly. They went into the kitchen
and Kranzelic heard water running.
The three men and Palmer, who had
been in the kitchen, came out of the
kitchen and went to Gibson's bed.
Gibson asked 'Mike', who was stand-
ing in front of the kitchen, if
the cops were coming. Gibson was
o} Ls
wearing a T-shirt. It had a blood
spot on the side. Gibson took his
clothes off and put them in his
night locker, which he pushed to the
end of the room near the last bed.
Gibson brought the locke. from that
bed to his bed. He took something
wrapped in paper from under the
blanket of his bed and handed it to
‘Robert’ telling him to get rid of
it. Robert threw it out of the win-
dow. Gibson handed his T-shirt to
Cooper who went in the washroom.
Kranzelic heard a tearing sound and
a flushing of the toilet.
"Kranzelic testified further
that 'Choice' came out of the
kitchen area holding his hand and
some paper. He went to Gibson's bed
and threw the paper in a garbage
can. Palmer threw a roll of toilet
,>
oi 9e
paper with blood spots on it in the
Same garbage can. Cooper wore a lab
coat under which he hid an object
that looked like a screw driver.
Gibson put on a new pair of pajamas.
A few minutes later an officer came
in and arrested Gibson.
"Kranzelic described 'Choice'
as being five feet four inches tall,
between 22 and 24 years of age, with
long messy hair. He stated that
'Choice' was a weight lifter and
that he walked with a limp. Ata
pretrial hearing Kranzelic iden-
tified a photograph of defendant
Justice as the person he knew as
"Choice.' At the grand jury hearing
Kranzelic could not identify a
photograh of Justice.
"Wayne Clark, a correctional
officer, searched the fourth floor
-13-
of the prison hospital for evidence.
He found a ell of toilet paper with
red stains on it in a trash can.
"Charles Johnson, an inmate,
testified for the prosecution. He
stated that on July 21, 1971, at
about 11:45 a.m., he went to visit a
patient in the room next to that
occupied by Herman Johnson on the
second floor of the prison hospital.
Officer Davis, who was guarding
Herman Johnson's room, asked Charles
Johnson to summon an attendant. As
Charles Johnson went around the
corner he saw Gibson, Justice and
Reginald Muldrew in the shower room,
Charles Johnson summoned inmate
Kajor, a hospital attendant, from
the nurse's station and accompanied
him back to Herman Johnson's room.
He noticed that Gibson, Justice and
ye
Muldrew were still in the shower
room.
"Charles Johnson visited the
patient in the room next to that of
Herman Johnson and then went down to
the first floor. While there he
heard the panic buzzer and upon
hearing the officers say ‘second
floor’ he went upstairs to the
second floor where he observed
Justice and Muldrew. Justice asked
Charles Johnson what had happened
and Johnson replied that he didn't
know. A nurse told Charles Johnson
to proceed downstairs. While on the
first floor Charles Johnson observed
that both Justice and Muldrew were
there. Justice was permitted to go
through the center grille gate.
"Officer George Randolph
escorted Justice out of the clinic
-%
=} Se
door. Officer Randolph noticed that
Justice had something in his right
hand. When he asked Justice to open
his hand Justice glared at him but
complied, revealing blood-stained
tissue paper and a deep cut between
the thumb and forefinder. Officer
Ayres also observed that one of
Justice's hands was closed around
some paper.
"Justice's hand was examined by
Arthur Simon, a medical technical
assistant, at about 2:25 p.m. ‘Ye
observed three incise wounds on the
palm, which he described as super-
ficial and of the type resulting
from a cut by a knife, razor or
piece of glass. Simon testified
that in his opinion the wounds were
fresh, possibly two or three hours
old, but that it was possible that
they were a few days old.
aiga
"A white-over-brown rubber
shower thong was found near room
202, occupied by Herman Johnson. A
similar thong was found in room 224.
The first was a left thong and the
second a right thong. Officer Ayres
‘testified that Justice customarily
wore a pair of rubber shower thongs
while in the hospital and that these
were white on the top and brown on
the bottom. When Justice was taken
from the hopsital about 30 to 45
minutes after the attack on Officer
Davis, he was wearing green and ’
white thongs of a different shape
than the ones he customarily wore.
"Ellis Baker, an employee of
the Department of Corrections who
participated in the search of the
second floor of the hospital,
observed a knife on the roofwell
oi Fo
from the window in room 226. When
retrieved, the knife, which had a
wooden handle and some tape next to
the handle and the blade, had red
faded stains on the tape and blade.
In room 224 bloodstains were dis-
covered on the bedsheets. A blue
shirt, blue pants and a pile of
freshly laundered pajamas were found
under the bed in room 224. A rubber
shower thong was found in the pile
of pajamas. Some of the pajamas had
bloodstains, as did the blue shirt
and the blue pants. There were
bloodstains on the sink by the door
and on the bed. The bloodstains on
the sink appeared to be fresh.
There were smudged fingerprints oa
the window panes. Fingerprints were
also found on the knife, but they
could not be identified.
r%
=} $<
"It was stipultted that Officer
Davis died of knife wounds. Davis
received nine wounds, all of which
were consistent with having been
inflicted by a single weapon.
"Records of the Alameda-Contra
Costa Medical Association Blood Bank
were introduced into evidence.
These disclosed that Officer Davis'
blood type was '0.' Blood samples
were taken from Gibson and Justice
pursuant to search warrants and the
results were admitted into evidence.
Gibson's blood type is 'O' and that
of Justice is type ‘AB.'
"Louis Maucieri, a criminalist
employed by the Department of
Justice, was permitted to testify as
an expert, over defense objections
as to his qualifications. He
testified that '‘AB' type blood was
= {=
found on the knife, on a pair of
denim pants found in room 224, on a
roll of toilet paper found in a
fourth floor trash can, on a white
jacket found in the fourth floor
soiled linen hamper, and on Gibson's
bedding.”
B. Facts relevant to respondents' conten-
tions on federal habeas corpus
he Juror Grist: Type AB blood and its
rarity.
This description is taken from those
affidavits filed by various jury members (RT
492-493, 540-560, 563-564) 2/ and admitted
into evidence at the hearing on respondent's
motion for new trial. Necessarily, the
description is limited to whatever evidence
of "statements made, or conduct, conditions,
Or events occurring either within or without
3. "RT" refers to the Reporter's
Transcript of the trial in state court.
-20-
the jury room, of such a character as is
likely to have influenced the verdict improp-
erly .. ." appears in them. People v.
Hutchinson, 71 Cal.2d 342, 349-350 (1969).
By the same token, "evidence of the jurors’
subjective attitudes or reactions to state-
ments or conduct or the mental processes by
which the verdict was reached" is excluded.
Id.
Juror Grist admitted researching in
an enclyclopedia the fact that AB was a rare
blood type. No other jurors made statements
about the subject to him. He believed he may
have mentioned the fact of rarity to another
juror. Most importlantly, he believed the
research was done after the jury had finished
balloting as to appellant Justice (CT 543-
544) .4/ Juror Chapman confirmed that juror
4. Juror Cox, who did not recall the
identity of the juror making the statement,
thought the statement had been made before
balloting began (CT 552).
s*%
=21@
Grist had made the statement in an offhand
manner and while other conversations were in
progress (CT 542). Foreman Lubersky did not
recall the comment (CT 548) .2/ Juror Taylor
did not hear the statement (RT 551). Juror
Storey did not remember such a statement (RT
555). In any event, she was already aware of
the rarity (CT 555). Juror Michael did not
recall such a statement (CT 558). Nor did
juror O'Brien (CT 558). She also took it to
be common knowledge that AB was a rare blood
type (CT 559-560). Juror Mraz did not remem-
ber the statement. Although she had donated
5. Juror Cox's recollection was that
Lubersky had immediately voiced a warning
against considering the evidence (CT 553).
Juror Gauger's recollection paralleled that
of juror Cox as to foreman Lubersky's action
(CT 546).
A similar caution was given by juror
Storey, aS an accompaniment to her own state-
ment that AB blood was rare (CT 555). This
Statement was heard by juror Michael, who
later remarked she would reach her verdict
independent of such knowledge (CT 558).
Another admonition was apparently
given by juror Bradford, who was not other-
wise heard from (CT 546). ;
-22-
blood and knew AB was a rare blood type, she
refrained from consulting her donor's card
(CT 564).
Of the nine juror polled, then, only
four recalled the precise statement of which
appellants complained. Two were aware of an
immediate admonition from the foreman that
such evidence shouid not be considered. The
comment is best described as a momentary one.
2. Juror Gauger: Morphine dosage and
perception.
In her original affidavit, submitted
with the defense motion for new trial, juror
Gauger said she consulted a medical encyclo-
pedia at the request of her fellow jurors,
and therein confirmed what she had previously
thought to be true, that the dosage of
morphine received by Ivan Kranzelic was not
heavy enough to have affected his perception.
She related same to the jury during delibera-
tions (CT 492-493). In her subsequent
-
affidavit, attached to the prosecution opposi-
tion, she made several qualifying statements.
It turned out she had raised the point during
deliberations, and speculated as to its
effect. Other jurors offhandedly said she
should be sure, an admonition which she took
as a request to look up the matter. She
remembered also that someone commented the
jury should not consider the effect of the
dosage, in that there had been no evidence
presented on the point.
Juror Chapman did not recall gen-
erally what Gauger had said. He recalled
that he and possibly another juror had
immediately remarked the matter should not be
considered. Other jurors nodded assent, and
the issue was thereafter dropped (CT 54l-
542). Juror Grist agreed that no one had
requested the information. He did not remem-
ber the substance of juror Gauger's comment,
which had been in the nature of a passing
atin
remark (CT 543). Foreman Lubersky recalled
the substance of Gauger's remark. He further
recalled the statement was of momentary dura-
tion, and was not thereafter discussed. No
one requested the information. Lubersky did
not recall subsequent deliberations concern-
ing Ivan Kranzelic's ability to perceive (CT
548). The foreman might have admonished the
jury, at the time juror Gauger made her
remark, not to consider that about which no
evidence had been presented (CT 549). Juror
Taylor heard the unsolicited remark, then
heard two jurors (one of them juror Chapman)
say the matter should not be considered. The
matter was dropped (CT 550-551). Juror Cox
recalled the statement being made, but her
version is neutral, however, as she attri-
buted to juror Gauger the assertion that
Kranzelic's perception could have been
sharpened or dulled (CT 552). Juror Storey
said the comments were unsolicited. They
— =
were neutral in import, a fact she her-
self immediately commented upon. Fore-
man Lubersky commented that they could
not consider the issue. The comment was
made to a small group of the jurors,
including Storey and Lubersky. No more
was heard of the matter (CY 554-555).
Juror Michael characterized the state-
ment as a passing remark. She was not
even sure everyone heard the remark, as
it had been made in the foreman's vicin-
ity. He had delivered a prompt admoni-
tion (CT 557). Juror O'Brien, seated at
the other end of the table, did not
recall any discussion (RT 559). Juror
Mraz, seated near Gauger, had recollec-
tion similar to those of juror Michael
(CT 563-564).
The offhand statement thus was
made only to a small segment of the
jury. Prompt admonitions that the
ite
in it being dropped. The "research" had
not been requested by other jury members.
: The evidentiary importance of
the matters raised.
(a) The rarity of type AB
blood
Evidence of the incidence of
type AB blood was a type of evidence
whose reliability is unquestionable. It
is simply not open to doubt that AB is a
rare blood type. o/ That a jury should
receive evidence of a common and well-
accepted point is surely a different
matter than that they should consider a
more obscure point.
6. Respondents attempted to argue
they were deprived of the right to cross-
examine on the issue of exactly how rare
the blood type was. But juror Grist
only remarked that the type was rare.
It would not matter whether the source
consulted was within one percentage
point, or two or three either way of
another source; in any event, the type
would be classed as "rare." That source
of cross-examination or rebuttal simply
was not available.
oe
Respondents asserted that evi-
evidence of rarity was at the heart of
the prosecution case, the prosecutor going
sc far as to label it respondent Justice's
"calling card" (RT 6589-6590, 6592,
6627-6628). They also contend it pro-
vided physical corroboration of respond-
ent Justice's presence, hence of Herman
Johnson's testimony. Each source of
importance is subject to doubt upon
Closer scrutiny. As to the prosecutor's
language, that argument depends on the
willingness of the jury to infer that
the AB blood on the knife and Justice's
AB blood were the same. The argument
can be advanced without the rarity
aspect. Rarity, in effect, only pro-
vides an even greater reason why respond-
ent Justice could not be excluded as
the killer. Similarly, blood on the
knife did little to corroborate Herman
atin
Johnson's account of the killing. The
knowledge that respondent Justice's blood
and the knife blood were of the same
type would have corroborative effect
only when several intervening inferences
were made - that the knife was the
murder weapon, for example. It is dif-
ficult to see what added corroboration
would result from knowing the blood type
was rare. That assertion loses sight of
the truly damning corroborative factors
- the recovered thongs and later wearing
of new ones, the cuts only on appellant
Justice's hands, the obvious limp. The
upshot is that evidence of rarity was
not at the logical heart of the case as
presented. It would simply have made
the inferences the prosecution asked the
jury to draw more attractive, hence the
prosecutor's preference for it.
One source of cross-examination
deprivation claimed by respondents has
@29@
been considered [fn. 6, ante]. The
other cited by them is that they could
have cross-examined to show the prison
hospital population had a different
incidence of type AB blood than did the
general population. That assertion
overlooks the evidence that only respond-
ent Justice was seen to have a cut on
the hand. All the others, when checked,
had no wounds. Hence, the relative
incidence of type AB blood in the prison
hospital was of secondary importance,
not a subject for proper cross-examina-
tion Or rebuttal.
To recapitulate: the sources
of cross-examination deprivation are of
niggardly import; the evidence of rarity
of type AB blood was not evidence at the
logical heart of the prosecution case;
and the evidence learned by the jury was
not open to serious doubt as to its
«30<
correctness. These evidentiary factors,
each and together, suggest an innocuous-
ness to the first jury “misconduct”
incident above that already apparent
from the jurors' descriptions of what
occurred. Because the evidence was so
commonly accepted as to its correctness,
there is not the danger of the jury ren-
dering a decision predicated on a false-
hood. Because the evidence was not cru-
cial, there is no reason to suspect it
influenced the deliberations. And
because there were no true avenues of
cross-examination or rebuttal fore-
closed, there is no reason to suspect
any denial of confrontation in fact
occurred.
(b) The Morphine Dosage and
Perception
The most telling evidentiary
consideration concerning the morphine
wti~
and perception is the context in which
it arose at trial. Ivan Kranzelic,
admittedly a prosecution witness,_/ was
never cross-examined about possible
inability to perceive due to morphine
doses. The defense never offered evi-
dence about the possible effect on his
perception of morphine (AOB 62:7-9). It
offerered evidence that a dosage had been
received (RT 3449, 5688, 5692), then
argued inferences in final argument.
The strategy is easy enough to describe--
7. But not, as respondent Gibson
contended, the only source of evidence
besides Herman Johnson tying him to the
murder. Whatever happened to the view
Charles Johnson had of respondents and
Reginald Muldrew in the shower room?
(RT 3023).
Even though Kranzelic was a
vital witness, the morphine went cnly to
a minor part of his testimony. Evi-
dence of it could only exert an effect
during cross-examination of Kranzelic.
Once that spot for introducing the evi-
dence was lost, in effect, all of
Kranzelic's testimony was in evidence in
strength. Later evidence of diminished
perception would have necessarily
diminished impact.
e
at 2e
the defense felt it sufficient to plant
a seed of possible doubt, leaving the
jury to speculate on the effect. That
strategy succeeded with juror Gauger's
unauthorized trip to the library. To
now reward it further by reversal of the
state court judgment would border on the
perverse. The perversity is more
glaring when it is remembered that the
issue of perception changes due to
morphine usage was but a minor aspect of
Kranzelic's testimony [see fn. 7, ante].
REASONS FOR GRANTING THE WRIT
Almost eight years ago respon-
dents were found guilty of the murder of
a prison guard. Their conviction was
unanimously upheld by the California
Court of Appeals. The California
Supreme Court unanimously refused to
grant review. This Court unanimously
denied certiorari. A federal district
a33~
court denied a writ of habeas corpus.
Finally, in the fifth court in which
they sought review, respondents were
rewarded for their diligence by the
granting of a writ of habeas corpus.
The tragedy occasioned by this
case is not necessarily that an inter-
mediate court of appeals is able to
second-guess and overrule the state
judiciary. Federal habeas corpus, which
permits a single federal judge to over-
rule a state supreme court, occasionally
Produces such unpalatable results. The
real tragedy of this case is that the
result is totally without support in the
record.
The Court of Appeals for the
Ninth Circuit concluded that it was
federal constitutional error for the
jurors to gather evidence on their own.
That is strictly a question of law which
-34-
we do not presently challenge. But the
court also concluded that the error was
not harmless beyond a reasonable doubt.
Chapman v. California, 386 U.S. 18
(1967). We emphatically disagree with
that conclusion and maintain that a read-
ing of the record establishes beyond ques-
tion the error identified by the court
was totally harmless. It could not have
possibly contributed to the verdicts and
it was a gross abuse of the lower
court's power to have held otherwise.
We submit that the lower
court's reading of the trial record was
so distorted that this Court should
exercise its supervisory powers by
Granting the writ of certiorari,
reversing the court of appeals, and
reinstating the convictions of two men
who were proven guilty by overwhelming
evidence. Cf. Sumner v. Mata, 49
U.S.L.W. 4133 (1981) °
=33e
ARGUMENT
' THE ISOLATED INCIDENTS OF JURY
MISCONDUCT DID NOT DEPRIVE
APPELLANTS OF THEIR DUE PROCESS
RIGHT TO A FAIR TRIAL.
In Chapman v. California, 386
U.S. 18 (1967), this court concluded
that some constitutional errors are so
"unimportant and insignificant" that
they do not require reversal of the con-
viction. Id. at 22. Thus, federal
courts of appeal are forbidden to
reverse a state criminal conviction if
the record establishes that the error
was harmless beyond a reasonable doubt.
Id. at 24. We submit that the record
does establish beyond doubt that the
jury misconduct did not contribute to
the verdict and we adopt the district
court's well-reasoned analysis of the
evidence.
aSG~
"TYPE ‘'AB' BLOOD
"The properly admitted
evidence showed that Justice
had type ‘AB' blood and that
type 'AB' blood was found on
the murder weapon, on clothing
and on toilet paper used in the
attack on Officer Davis.
Whether ‘AB‘ blood was rare
would be irrelevant to show
that Justice was one of the
assailants unless other evi-
dence placed Justice at the
scene. And if Justice were at
the scene, had ‘AB' blood, sus-
tained a wound which was bleed-
ing, then the ‘AB’ blood would
be his ‘calling card' regard-
less of its rarity.
"Justice was placed at the
scene of the attack by the
Te
testimony of Herman Johnson,
the apparent intended victim,
by Charles Johnson, the clerk-
typist, and to some extent by
Ivan Kranzelic, the inmate on
the fourth floor of the hospi-
tal. The fact that Justice was
the only known suspect to have
"AB' blood type is merely fur-
ther evidence from which the
jury could conclude that he was
Present at the scene of the
murder. This is so without any
regard for the rarity of his
blood type, since his was the
Only blood which matched that
found on the weapon, on the
Clothing and elsewhere. It was
not the rarity but the match up
that placed him there. The
court is convinced beyond a
o380
reasonable doubt that the evi-
dence of the rarity of the
blood type did not contribute
to the verdict against Justice.
"Whether Gibson was guilty
of murder could not in any way
depend upon whether Justice's
blood type, 'AB,' was rare.
Any consideration by the jury
of such a fact, if it did so,
did not, beyond a reasonable
doubt, contribute to Gibson's
conviction.
"KRANZELIC'S MORPHINE DOSAGE
"The eyewitness testimony
of Kranzelic has been termed by
the petitioners here as crucial
to the prosecution. But his
testimony only placed the
assailants on the fourth floor
of the hospital before and
o39e
immediately after the attack
which took place on the second
floor. The intended victim and
Charles Johnson placed the
assailants on the second floor.
Herman Johnson was the only
eyewitness to the murder itself.
"While Kranzelic's testi-
mony might have cumulatively
added to an overwhelming moun-
tain of testimony surrounding
the events of July 21, it is
not the testimony which is
being complained of here. The
jury knew that Kranzelic was
taking morphine. However, they
were told he had not been
Sleeping. No testimony was
introduced by the defense of
any adverse effect that dosage
might have had on Kranzelic's
-40-
ability to perceive the events
he described at trial. While
the defense did suggest, in an
argument lasting less than a
minute, that Kranzelic might
have been asleep, the testimony
was to the contrary and uncon-
tradicted. The defense did
attack, for more than a day of
argument, Kranzelic's motive
for testifying and reasons for
lying. The subsequent discov-
ery by one juror that the
amount of morphine was minimal,
and the prompt admonition
against considering such a
fact, negate any contribution
such evidence might have had to
the verdict. In view of the
Overwhelming untainted evi-<
dence, this Court is convinced
o4l<
beyond a reasonable doubt that
the research into the effect of
the morphine dosage on Kranzelic
did not contribute to the
verdict." (Appendix B, pp. 26-30).
The Ninth Circuit's arguments in sup-
port of its position that the error was not
Clearly harmless are totally unpersuasive.
It is pointed out that the jury deliberated
two and one-half days (683 F.2d at 833), as
if that indicated confusion or lack of deci-
siveness on the part of the jury. But the
trial took four months. It is surprising
that the jury digested the mountain of evi-
dence in as little time as two and one-half
i days.
The Ninth Circuit also relied on the
fact that two jurors felt a need tc gather more
evidence, an indication of some "lingering
hestitation or uncertainty" Ibid. But this
argument is based upon the wholly unproved
o42@
premise that juror curiosity about some minor
aspect of the evidence establishes reasonable
doubt about the guilt of the accused. The
court's focus was misplaced, for the only
relevant question is "the probable impact of
the [error] on the minds of an average jury."
Harrington v. California, 395 U.S. 250, 254
(1969).
We submit that the evidence gathered
is a result of juror misconduct was so insig-
nificant that the error was harmless beyond
doubt and that the lower court's holding to
the contrary constitutes a gross miscarriage
of justice. We ask this Court to redress
this egregious wrong.
a ee, ee ee.
~\=
CONCLUSION
For the foregoing reasons, it is
respectfully submitted that the petition for
writ of certiorari should be granted.
DATED: February 2, 1981.
JERRY R. HERMAN
District Attorney
Marin County
JOSHUA THOMAS
Deputy District Attorney
Marin County
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EARL B. GIBSON,
Appellant,
v.
THOMAS L. CLANON, No. 79-2680
Superintendent, Vacaville
Medical Facility, Vacaville,
California,
D.C. #76-1125 SW
- Appellee.
LAWRENCE JUSTICE, OPINION
Appellant,
ar
GEORGE SUMNER,
Superintendent, Correctional
Training Facility, Soledad,
California,
Appellee.
eee 8 “SS 8S SS “SS SS “SS SS Se”
Appeal from the United States
District Court for the Northern District
of California
Spencer M. Williams, District Judge,
Argued and submitted September 10, 1980
Before: MERRILL, Circuit Judge, MARKEY*,
Chief Judge, and BOOCHEVER, Circuit
Judge.
*Honorable Howard T. Markey, Chief Judge, U.S.
Court of Customs and Patent Appeals, sitting by
designation.
aze
BOOCHEVER, Circuit Judge:
This is an appeal from the judgment
of the District Court for the Northern District
of California denying petitioners' writ of
habeas corpus. The two petitioners, Gibson and
Justice, are presently serving life sentences
in California state prisons for the 1973 murder
conviction of a prison guard at San Quentin.
Gibson and Justice allege that the trial jury
that convicted them impermissibly relied upon
facts that were not in evidence. In doing so
they claim they were denied their constitutional
right to a fair trial. The district court,
which reviewed the state court record, but did
not take additional evidence, concluded that
any error that may have occurred was harmless
beyond a reasonable doubt. Our review of the
historical facts in this case convinces us that
there is-a reasonable possibility that the
jury's consideration of facts not introduced
into evidence contributed to the jury's verdict.
Accordingly, we reverse the judgment.
=3~
On July 21, 1971, Leo Davis, an
unarmed guard at the San Quentin prison hospital,
was stabbed to death. The state's case linking
Gibson and Justice to the crime was based prin-
cipally upon the testimony of three witnesses
and the introduction of certain physical evidence.
The state's chief witness was Herman
Johnson who testified that he was an eyewitness
to the killing. On July 19, 1971, Johnson
claimed he was stabbed in the neck by Gibson and
Justice shortly after he had been transferred to
San Quentin from Soledad. The attack was
allegedly provoked by Johnson's willingness to
give a statement implicating other inmates ina
crime committed at Soledad. After the attack,
Johnson was taken to the prison hospital where
he was placed in a room on the second floor.
David was stattioned in the hallway outside his
door.
According to Johnson, at around noon on
July 21 he caught a glimpse of Gibson through a
window in the door to his room and heard scuffling.
-4.
He testified that upon going to the door he was
able to see Gibson and Justice stab Davis while
a third man held hin.
The defendants impeached Johnson's
testimony with the testimony of other inmates
who stated that they had witnessed the July 19
attack on Johnson, and Gibson and Justice were
not among the attackers. The defense implied
that there was a possibility that Johnson's
testimony was biased because a decision on a
parole violation committed by Johnson was allegedly
held in abeyance until after his testimony at the
trial. The defense also introduced evidence
indicating that Johnson had a poor reputation
for veracity.
Johnson's eyewitness account was
corroborated by two other prosecution witnesses.
Another inmate with the last name of Johnson,
Charles Johnson, testified that he had seen
Gibson, JUstice and a third man in a shower
room on the second floor of the hospital within
a short time of when the murder occurred.
a5
There was also testimony from Ivan
Kranzelic who shared a hospital ward on the
fourth floor with Gibson. Gibson had gained
admittance to the hospital after allegedly
suffering an injury in football practice the
day before the murder. Kranzelic testified
that on the morning of July 21 he had seen an
inmate give a prison-made knife bg Gibson, who
in turn gave it to Justice. Kranzelic overheard
Gibson make various statements such as they would
have to do "it" that day. Around noon Gibson,
Justice, and a third inmate left the ward and
returned about twenty minutes later. Kranzelic
testified that Justice's hand was bleeding when
he returned and, as he sat on Gibson's bed, he
used a roil of toilet paper to try to stop the
bleeding. At the time these events were alleged
to occur Kranzelic was recovering from foot surgery
and had been given several doses of morphine.
At trial the state introduced evidence
showing that the murder victim had blood type "0."
Justice had blood type "AB." It was further shown
-6-
that the blood stains found on the murder weapon,
on Gibson's bed where Justice had sat, and on
the roll of toilet paper, which was also recovered,
all were of blood type "AB."
The trial lasted from December 1972
until April 1973. The jury deliberated for two
and a half days before returning a guilty verdict
on April 18, 1973. A month later, on May 17,
1973, Gibson and Justice made a motion for a
new trial on the grounds that the jury had
impermissibly relied upon evidence not produced
in court. Affidavits submitted by the jurors
reveal two incidents of misconduct.
At one point during the deliberations,
Juror Colin Grist went to an encyclopedia to
confirm his belief that blood type "AB" was rare.
He reported his findings back to other members
of the jury. Jurors Chapman, Gauger and Cox
remembered some comment by Grist. Grist was
unsure whether he made the comment before or
after the balloting on Justice.
Another juror, Mona Gauger, stated that
ae
while the jury was considering Kranzelic's
testimony she had commented on the dosage of
morphine. Other jurors were unsure what effect
the morphine may have had on Kranzelic, which
Gauger interpreted as a request for more in-
formation. She then consulted a medical
encyclopedia from which she apparently concluded
that the morphine dosage was too small to have
affected Kranzelic's perceptions. At least eight
other jurors remembered some comment by Gauger,
but there was some disagreement as to exactly
what she had said.
In both cases there were apparently
- some comments in the jury room to the effect
that the jury should not consider this evidence.
The trial judge denied the motion for
a new trial. In his oral ruling the judge
considered the applicable test to be that of
People v. Watson, 299 P.2d 243, 254 (Cal. 1956),
cert. denied 355 U.S. 846 (1957), which, in the
courts of California, requires reversal for an
error when it is "reasonably probable that a
aSe
result more favorable to the appealing party
would have been reached in the absence of the
error." (Emphasis added.) The judge specifically
declined to apply the stricter test of Chapman
v. California, 386 U.S. 18, 24 (1967), which re-
quires, in the case of federal constitutional
errors, that the error be harmless "beyond a
reasonable doubt."
In his ruling, the judge twice in-
dicated that were he to apply the Chapman
standard, he would have granted the motion:
I will state for the record that
I cannot say that it [the jury mis-
conduct] was harmless beyond a
reasonable doubt.
‘ . I don't think the Chapman
case applies to this situation. If
it does and I were to apply it, I
would feel, I think, compelled to
reach a different result.
The trial judge's decision was affirmed by an
unpublished opinion of the California Court of
Appeal. Petitions for certiorari to the
California Supreme Court and the United States
=Jo
Supreme Court were denied. In denying the
petitioners' subsequent writ of habeas corpus,
the federal district court judge did not
specifically decide whether the jury misconduct
in this case amounted to constitutional error,
but concluded that if there were constitutional
error it was harmless beyond a reasonable doubt.
We first must decide whether the
California trial judge applied the appropriate
test in determining the effect of the impermissibly
considered evidence. In United States v. Vasquez,
597 F.2d (9th Cir. 1979), we defined the test to
be applied when a jury acquires evidence that has
not been introduced into the record.
[T]he appellant is entitled to a new
trial if there existed a reasonable
ossibility that the extrinsic mate-
rial could have affected the verdict.
597 F.2d at 193 (emphasis added). The "reasonable
possibility" test of Vasquez is equivalent in
severity to the harmless error rule applicable
to constitutional errors under Chapman.
Vasquez involved a direct appeal from a
1 0<
trial in a federal district court. Therefore,
although it is intimated by the opinion, there
was no need to decide whether the "reasonable
possibility" test is compelled by constitutional
considerations that would make it applicable to m
the collateral review of a state court judgment.
We now conclude that the Vasquez test is compelled
by constitutional considerations.
In Turner v. Louisiana, 379 U.S. 466
(1965), the Court refers to sixth amendment rights
in considering the impact of outside influence
on a jury:
In the constitutional sense, trial
by jury in a criminal case necessarily
implies at the very least that the
"evidence developed" against a defend-
and shall come from the witness in a
public courtroom where there is full
judicial protection of the defendant's
right of confrontation, of cross-
examination, and of counsel.
3
379 U.S. at 472-73.
Turner involved the possibility of
prejudice created where the prosecution's leading
witnesses were the same two deputy sheriffs who
watched over the jury during the time it was
alt=
sequestered for Turner's trial. Although the
case did not involve the introduction of extra-
record facts, the implication of the statement
is that it would apply in such a rea A year
after Turner, the court reversed a state court
decision where a court bailiff made various
prejudicial statements about a defendant to
jurors. The court noted the applicability of
the confrontation clause: |
[T]he statements of the bailiff to
the jurors are controlled by the
command of the Sixth Amendment.
Parker v. Gladden, 385 U.S. 363, 364, (1966):
The Second Circuit has granted habeas
corpus relief in two cases where extrinsic
material may have influenced a state court
Beuieak ? Opinions from other circuits have also
cited sixth amendment violations when a jury
has considered facts outside of those which have
been introduced at as”
These decisions have noted that when
a jury considers facts that have not been in-
troduced in evidence, a defendant has effectively
ai 2a
lost the rights of confrontation, cross-examination;
and the assistance of counsel with regard to jury
consideration of the extraneous evidence. In one
sense the violation may be nove serious than
where these rights are denied at some other stage
of the proceedings because the defendant may have
no idea what new evidence has been considered.
It is impossible to offer evidence to rebut it,
to offer a curative instruction, to discuss its
significance in argument to the jury, or to take
other tactical steps that might ameliorate its
Pie We believe that the California trial
judge erred in applying a reasonable probability P
standard and that the proper standard to be
applied is whether it can be concluded beyond a
reasonable doubt that extrinsic evidence did
not contribute to the verdict.
We must next review the record to
determine the effect, if any, of the extrinsic
evidence considered by the jury in this case.
The state's case against Gibson and
Justice is a strong one. Nevertheless, if the
-13-
jury had readily accepted Johnson's eyewitness
testimony it seems unlikely that they would
have deliberated for so long to reach a verdict.
Furthermore, the fact that at least two jurors
believed that it was necessary to obtain more
evidence is, by itself, an indication that there
may have been a need to resolve some lingering
hesitation or uncertainty.
The extra-record evidence in this case
is of some import in bolstering Johnson's
testimony. Evidence that blood type "AB" is
rare would logically strengthen the inference
that it had been Justice who had possessed the
murder weapon and not some unknown assailant
with the same type of blood. The trial judge
had ruled that evidence concerning the rarity of
"AB" blood was inadmissible. The prosecution took
an immediate appeal from this ruling, which is
some indication of the importance the state
attached to this ales.” As to Kranzelic's
testimony, if the jury concluded that his
perceptions were not affected by morphine this
ai Re
would certainly strengthen his credibility.
The trial judge candidly acknowledged
that were he to apply the test for constitutional
error that we have concluded is required in this
case, he would have granted the motion for a new
trial. Although we are not bound by this
evaluation of the historical facts, see e@.g.,
Brown v. Allen, 344 U.S. 443, 456 (1953);
Developments in the Law - Federal Habeas Corpus,
83 Harv. L. Rev. 1038, 1113 (1970), we nevertheless
believe that under the circumstances the state
trial judge's conclusion should be given a great
deal of weight. The state judge presided over
Gibson and Justice's four-month trial and observed
the demeanor of the witnesses. At the time of
his ruling he was in a far better position to
evaluate the credibility of the witnesses than we
are now, reviewing a cold record eight years after
the trial.
We conclude that there is a reasonable
possibility that the extrinsic evidence affected
the verdict. Accordingly, the petitioners’ writ
«i Se
of habeas corpus must be granted unless the
State of California elects to grant a new trial
within sixty days.
REVERSED.
1. The court noted in Chapman:
There is little, if any dif-
ference between .. . ‘whether
there is a reasonable possi-
bility that the evidence com-
plained of might have contri-
buted to the conviction" and
requiring the beneficiary
of a constitutional error to
prove beyond a reasonable
doubt that the error compl-
ained of did not contribute
to the verdict obtained."
386 U.S. at 24 (emphasis added).
2. Such a test might conceivably
be based upon the supervisory powers of
the court. See Murphy v. Florida, 421 U.S
794, 797-98 (1975).
3. The sixth amendment to the consti-
tution provides in part that an "accused
shall enjoy the right .. . to be confront-
ed with the witnesses against him...
and to have the Assistance of Counsel for
his defense."
4. In several cases the court has
reversed state court convictions without
a showing that specific extra-record facts
reached a jury during its deliberations.
The cases have involved situations where
there has been such peruasive pre-trial
publicity that it could be presumed that
the jury's verdice was based on either pre-
judgement of the defendant or consideration
of extraneous facts. See Sheppard v.
Maxwell, 384 U.S. 333 (1966); Estes v.
Texas, 381 U.S. 532 (1965); Irvin v. Dowd,
366 U.S. 717 (1961).
5. Bulger v. McClay, 575 F.2d 407, 411
(2d Cir. 1978), cert. denied 439 U.S. 915
(1978); Owen v. McMann, 435 F.2d 813 (2d
Cir. 1970), cert. denied 402 U.S. 906
(1971). See also Downey v. Peyton, 451
F.2d 236 (4th Cir. 1971).
6. Government of Virgin Islands v.
Gereau, 523 F.2d 140, 150 (3rd Cir. 1975)
cert. denied 424 U.S. 917 (1976) (""con-
Sideration by the jury of extra-record
facts about the case .. . [is] prima
facie incompatible with the Sixth Amend-
ment.'); United States v. Thomas, 463 F.2d
1061, 1063 (7th Cir. 1972); Farese v. United
States, 428 F.2d 178, 179 (5th Cir. 1970).
7. The Fifth Circuit has referred
metaphorically to extraneous evidence as
"the dagger of hidden evidence." United
States v. Howard, 506 F.2d 865, 866 (5th
Cir. i97ap.
8. The length of jury deliberations
has been cited as a factor of some import-
ance in Parker v. Gladden, 385 U.S. 363,
365 (1966) (26 hours) and Dallago v. United
States, 427 F.2d 546, 559 (D.C. Cir. 1969)
(5 days). In opposing petitioner's motion
for a new trial the prosecution stated that
the jury actually only deliberated for
"possibly nine hours." Presumably the
prosecution meant that this nine hour
period was spread over two and one half
days. Even accepting the prosecution's
version, however, it does not seem pos-
sible that the jury would have deliberated
nine hours over several days if the jurors
did not have serious questions as to the
credibility of the eyewitnesses.
9. The fact that a jury has acquired
inadmissible evidence has been cited in
United States v. Vasquez, 597 F.2d 192,
194 (9th Cir. 1979), and Dallago v. United
States, 427 F.2d 546, 558 (D. C. Cir. 1969).
m*
IN THE UNITED STATES DISTRICT COURT
FOR THE NOTHERN DISTRICT OF CALIFORNIA
EARL B. GIBSON,
NO.
C761125SW
Petitioner,
Vv.
THOMAS L. CLANON, SUPERIN-
TENDENT, VACAVILLE MEDICAL
FACILITY, VACAVILLE,
CALIFORNIA,
Respondent,
LAWRENCE JUSTICE,
Petitioner,
ee ee reer
Vv.
GEORGE SUMNER, SUPERINTEN-
DENT, CORRECTIONAL TRAINING
FACILITY, SOLEDAD, CALIFORNIA,
Respondent.
Ne ee a a a he ee
MEMORANDUM OPINION AND ORDER
Petitioners Gibson and Justice, who
by this petition seek Habeas Corpus re-
lief, were tried and convicted for the
murder of Leo Davis, a guard at San
Quentin prison. They attack the verdict
of the jury, alleging that there were
o@s
two incidents of juror misconduct which con-
stituted prejudicial error under Chapman
v. California, 386 U.S. 18 (1967).
At the time of the alleged murder,
Gibsoi was confined at San Quentin, serv-
ing a sentence for first degree burglary
and Clanon was confined, serving a sent-
ence for assault with a deadly weapon.
They do not contest the validity of
their confinement on those convictions.
FACTS
On July 19, 1971, Herman Johnson, an
inmate at San Quentin, was wounded during
a fight. Several inmates were present
during the fight, and there vas testi-
mony at trial that petitioners Justice
and Gibson were his assailants. In any
case, Johnson was placed in Room 202 on.
the second floor of the prison hospital,
a room with a door capable of being
locked for his protection. An unarmed
guard, Leo Davis, was assigned to protect
Johnson.
The next day, petitioner Gibson was
able to gain entrance into the prison
hospital for an alleged injury suffered
in a football game. The injury was pur-
portedly to his back. Although the
prison doctor was of the opinion that
Gibson had not been injured and knew it,
Gibson was allowed to stay in bed on the
fourth floor.
Ivan Kranzelic, an inmate hospital-
ized on the fourth floor while recovering
from foot surgery, claimed to be a wit-
ness to certain events surrounding the
death of Officer Davis. Kranzelic was
receiving pain medication, including
thrice daily dosages of morphine, but he
denied he was sleeping. Kranzelic testi-
fied that at about 8:30 a.m. on the day
of the attack, Justice brought Gibson a
pair of pajamas, left and returned about
20 minutes later at a time when Ricardo
wien
Cooper, ‘Monky D" Palmer and an unidenti-
fied tall black man were also present.
Subsequently Dr. Erickson, a prison
doctor, examined Gibson and when he left
Gibson asked Palmer if he had brought the
"things'' in. When Palmer answered that
he had, Gibson said that they had to do
"it" that day, as the doctor might want
to put him into a cast. The conferees
then went into a washroom. When they
came out, Kranzelic watched Gibson change
into a blue shirt and blue pants. Palmer
gave Gibson a seven or eight inch prison-
made knife. Justice took the weapon and
put it into soiled pajamas he was carry-
ing. Cooper took Kranzelic's crutches,
telling him they were for Gibson, and
left the room with Gibson and Justice.
Palmer followed shortly thereafter.
Charles Johnson, a clerk-typist on
the second floor of the hospital, testi-
**%
?%
«Se
fied that he went to the room next to
Room 202 (Herman Johnson's room), to
speak with an inmate named Pierce. Guard
Leo Davis asked Charles Johnson to get an
attendant for Herman Johnson. He left to
do so, and as he rounded the corner, at
11:45 a.m., he saw petitioners and an-
other inmate in the shower room.
Charles Johnson brought inmate Kajar
from the nurses' station to attend Herman
Johnson. While Kajar did so, Charles
Johnson returned to his work station,
again passing the shower room. He noticed
that the trio was still in the shower. A
few minutes thereafter he heard the panic
buzzer.
The door to Herman Johnson's room
was locked but contained a small window
and food tray porthole, out of which the
occupant could look. Johnson testified
that at about noon her heard a "scuffling"
af
sound outside the door. He observed Gib-
son, Justice and a third person, dressed
in jail blues. Johnson observed the un-
identified man holding Officer Davis
around the neck while Gibson and Justice
stabbed him. At one point Justice passed
the knife to the unidentified man who also
struck Davis. Although the assailants
were holding Davis, Davis managed to blow
his whistle. One of the attackers said
that Davis did not have the key, and they
vanished.
Kranzelic, still in his bed, observ-
ed the trio return about twenty minutes
after they had left. Justice limped but
still moved quickly; one hand was bleeding.
Both petitioners went into the kitchen,
and Kranzelic heard running water.
Justice's hand was still bleeding later
when the trio were seated on Gibson's bed,
and Justice used toilet paper to blot the
blood, which he then threw into a trash
4%
can. One of the three threw something
wrapped in paper out the window when
Gibson said to get rid of "it". A few
minutes later an officer came in and
arrested Gibson.
Officer Davis died from his wounds.
Evidence presented at trial showed
that Justice had superficial cuts on his
hand July 21; Gibson's and Davis' blood
type was "0" and Justice's was "AB". Fur-
ther evidence was introduced to show type
"AB" blood was found on a prison-made
knife which was found outside a hospital
window and conceded by the parties to be
the murder weapon. "AB" blood was found
on a pair of pants found in Room 224, on
Gibson's bedding, on a smock found in the
linen room, and on a toilet paper roll
found in a trash can on the fourth floor.
Evidence of the rarity of type "AB"
blood was excluded from the trial but
the prosecution argued that the ‘'AB"
7%
ofc
blood in the case was Justice's "calling
card". Evidence was introduced that
Kranzelic received three morphine doses
on the day of the attack, but no testi-
mony was given as to whether this amount
was minimal or would have any effect on
his powers of perception. The defense
made no serious argument that the dosage
affected Kranzelic's perceptions.
The jury convicted petitioners of
the murder of Officer Davis.
JUROR MISCONDUCT
Two jurors researched two areas of
the case and reported the results of
their research to their fellow saalieie O
Juror Colin F. Grist admitted that
he consulted an encyclopedia in order to
discover how rare AB type blood is in the
general population and obtained the in-
formation that it was a rare blood type.
He believed but was not certain that this
was done after the jury had finished
-9-
ballotting on defendant Justice. He had
some recollection, but was not certain,
that he might have mentioned to another
juror that AB blood was rare.
Jurors Chapman, Gauger and Cox recal-
led the statement. Of the nine jurors pol-
led, four recalled the statements, and the
affidavits of these jurors indicate that the
comment was a brief one and that it prompted
an admonition from other jurors that evi-
dence of the rarity of AB type blood was not
properly in evidence. Nothing in the affi-
davits indicated that any juror ~elied on
this information in the reaching their verdict.
In her original affidavit juror Mona
Gauger stated that during deliberations she
consulted a medical encyclopedia at the re-
quest of her fellow jurors to determine the
effect on perception of the amount of mor-
phine given to prosecution witness Ivan
Kranzelic. Her research confirmed her belief
that the dosage was relatively small and
-10-
would not have rendered him stuperous or
completely unable to perceive events taking
place around him. She related this infor-
mation to the other members of the jury.
In her second affidavit Gauger further
explained that during the deliberations
concerning Kranzelic's testimony she com-
mented on the dosage of morphine given Kran-
zelic and some members of the jury said that
she "should be sure."' She interpreted this
as a request to look up the information.
She recalled that at some point a juror com-
mented that since no evidence had been pro-
duced as to the effect of morphine that they
could not consider it.
Juror Chapman recalled Gauger's state-
ment and recalled that he and possibly an-
other juror stated that this information was
not evidence produced in court and that there-
fore it could not be considered by them. The
subject was then dropped. Juror Grist re-
called Gauger's comment about a morphine dose
i
wit<
but had no recollection of the specific
nature of the comment. Foreman Lubersky
recalled that Gauger had stated that she
had consulted a medical reference book and
that the amount of the drug administered
was a minimal dosage and that effect was
to increase perception and imagination
for a couple of hours and give the patient
a feeling of well-being. Gauger's remarks
lasted no more than a minute. Juror Taylor
recalled that Gauger had said that she
looked something up in a book and said:
i . something to the effect that de-
pending on a man's weight that the dose
given wouldn't hurt his ability to see or
hear.'' He recalled that two jurors, one
being Chapman, commented that this was not
in evidence and that they should not be
concerned with it. Juror Cox recalled
either that Gauger said that the dosage
of morphine could have either dulled or
sharpened Kranzelic's powers of observa-
o12«
tion a little. Juror Storey stated that
Gauger had said that in some cases percep-
tion would be heightened while in others
the recipient would be made drowsy. She
recalled that foreman Lubersky commented
that this should not be considered as it
was not in evidence and that she herself
commented that this information had no
value or validity. Juror Michael re-
called a statement by Gauger that morphine
hinders the imagination and further re-
called that’ Lubersky stated that they
could not consider this as evidence.
Juror O'Brien did not recall Gauger's com-
ment. Juror Mraz recalled that Gauger
stated that morphine might make a person
more alert and recalled Lubersky's admoni-
tion. Here again, there is no indication
that the jurors used this information in
any way in reaching their verdict. To the
contrary, in both instances, the jurors
apparently rejected any consideration of
a] 9s
these matters.
Petitioners seek a new trial claim-
ing the above-described conduct of the
jurors resulted in a denial of their rights
under the Constitution of the United States,
including the Sixth Amendment's right of
confrontation and cross examination made
applicable to state criminal proceedings
by Poindexter v. Texas, 380 U.S. 400 (1965);
the Sixth Amendment's right to trial by
jury which determines guilt solely on evi-
dence taken in court (Turner v. Louisiana,
379 U.S. 466, 472 (1965); Irwin v. Doud,
366 U.S. 717, 722 (1961); Patterson v.
Colorado, 205 U.S. 454, 462 (1907)); the
due process right to counsel in present-
ing the case (Geders v. United States, 425
U.S. 80 (1976); Brooks v. Tennessee, 406
U.S. 605, 613-614 (1972); the right to
have counsel vigorously argue the case
(Herring v. New York, 422 U.S. 853 (1975));
and the right to have the prosecution prove
-14-
its case beyond a reasonable doubt (Cool
v. United States, 409 U.S. 100, 105 (1972); .
In re Winship, 397 U.S. 358 (1970)).
TRIAL JUDGE'S RULING ON JUROR MISCONDUCT wl
At a hearing on the motion of def-
endants' for a new trial, the trial judge
in this case orally denied the motions
with a lengthy statement of his reasoning.
Inter alia, the judge decided to follow
the California state constitutional test,
as laid down in People v. Watson, 46 Cal.
2d 818, 836 (1956), cert. denied, 355 U.S.
846 (1957), and not the test of Chapman
v. California, 386 U.S. 18 (1967). The
judge was clear in his reasoning:
the conduct of the jurors in
this case in taking the testi-
mony with regard to morphine
and the AB blood would not
affect the result [the verdict]
in [the Watson] sense.
**¥*
_215-
I will state for the record
that I cannot say that it was
harmless beyond a reasonable
doubt. Now I think these are
judgments that basically that
an appellate court has to make.
I think they are entitled to make
their own independent judgments
as to the more probable cause
test and the harmless beyond a
reasonable doubt,
kk *
Which to apply? The Chapman
(sic) test, which I don't think
applies and the reason I don't
think it applies, it is not
every denial of confrontation
and it is not every interfer-
ence by misconduct on the part of
the jury that rises to Constitu-
tional dimension. Any erroneous
admission of hearsay evidence
olte
is a denial of confrontation
in a sense, and I don't think
the Chapman case applies to this
situation. If it does and I
were to apply it, I would feel,
I think, compelled to reach a
different result. (Reporter's
Transcript, June 22, 1973, pages
659-660.)
On that basis, the claim of misconduct was
found to be insufficient to warrant a new
trial.
CALIFORNIA APPELLATE COURT RULING
The California Court of Appeals, which
considered the affidavits and related the
content as stated above, then found that:
[t]he jurors did not request
that Gauger research the subject.
Furthermore, the jurors received
prompt admonitions that the matter
should not be considered as it
was not presented in evidence
°S
nite
and the discussion was very
brief, lasting perhaps only a
minute.
DISCUSSION
Two legal tests by which to measure
the impairment, if any, of the defendant's
rights by juror misconduct have left this
criminal action in an unsettled posture.
The Watson test, applied under California's
State constitution, and the Federal test
may not be the sea
People v. Watson, 46 Cal.2d 818, 836
(1956), cert. denied, 355 Y.S. 846 (1957),
created a "reasonably probable" test for
measuring harmless error. Evidence which
the state supreme court found to have
been "undoubtedly collateral and irrelevant
to any issue in the case" (Id. at 834) was
admitted by the trial court, and was
attacked by appellants on appeal. In re-
viewing the result of this error, the
supreme court found that there had been
+
«iSs
harmless error within the meaning of
California Constitution article VI, section
4-1/2, which read "No judgment shall be
set aside . .. unless, after an examin-
ation of the entire cause, including the
evidence, the court shall be of the opinion
that the error complained of has resulted
in a miscarriage of justice. The exact
nature of the phrase "miscarriage of jus-
tice’ has been interpreted on many occasions,
and the court concluded that the result of
any trial should only be declared a
"miscarriage of justice"
when the court, "after an exam-
ination of the entire cause,
including the evidence," is of
the "opinion" that it is reason-
ably probable that a result
more favorable to the appeal-
ing party would have been reached
in the absence of the error.
(46 Cal.2d at 836.)
019
This test was applied by the trial judge
at the conclusion of Gibson's and Jus-
tice's motions for a new trial and the
misconduct of the jury was found to have
been harmless error.
If this test is to be applied by
this federal district court, the opinion
of the trial judge should be given great
weight, since the opinion is based upon
an interpretation of a state constitutional
provision and the state court trial judge
has infinitely more experience and ex-
pertise in making such an interpretation °
than this court would have.
The standard under the federal consti-
tutional provisions, may however, differ
from this test. In Chapman v. California,
386 U.S. 18 (1967), the state prosecuting
attorney commented, as he was permitted
to do under California's constitution,
on the failure of the defendants to testi-
fy. After trial and before the California
=O
superme court decided the appeal, the
Supreme Court decided Griffin v. Californie a
380 U.S. 609 (1965) which found the prac-
tice of commenting on a failure to testi-
fy violative of the Fifth Amendment to the
Constitution of the United States. The
question in Chapman then was which test
to apply in ruling on the issue of a con-
stitutional error by a trial wee 386
U.S. at 21-23.
The Court noted that all 50 states
have harmless error rules or statutes, and
the Congress had long before established
such a statutory rule for federal pro-
ceedings. See 28 U.S.C. § 2111. The
federal rule provided that judgments should
not be reversed for "errors or defects
which do not affect the substantial rights
of the parties.” Id.
None of these rules on its face
distinguished between federal
constitutional errors and errors
«22 «
of state law or federal statutes
and rules. All of these,
state or federal, serve a very
useful purpose insofar as
they block setting aside con-
victions for small errors or
defects that have little, if
any, likelihood of having changed
the result of the trial. (Id.)
The Court then addressed the problem of in-
significant constitutional errors which
would not have changed the result of the
trial: ‘We conclude that there may be some
constitutional errors which in the set-
ting of a particular case are so unimport-
ant and insignificant that they may, con-
sistent with the Federal Cuiigcteukion. be
deemed harmless, not requiring the auto-
matic reversal of the conviction." Id.
The Chapman court in fashioning a
harmless-constitutional error rule, began
by pointing out the emphasis on "sub-
>
?%
~-22<
3/
stantial rights"' in the federal statute.
The Court then claimed to adopt the ap-
proach taken in Fahy v. Conneticut, 375
U.S.
85, 86-87 (1963):
We prefer the approach of this
Court in deciding what was harm-
less error in our recent case
of Fahy ... . There we said:
"The question is whether there
is a reasonable possibility
that the evidence complained
of might have contributed to
the conviction." . . . Although
our prior cases have indicated
that there are some constitu-
tional rights so basic to a fair
trial that their infraction
can never be treated as harmless
error, this statement in Fahy
itself belies any belief that
all trial errors which violate
the Constitution automatically
oi%n
call for reversal. At the same
time, however, like the federal
harmless error statute, it
emphasizes an intention not
to treat as harmless those
constitutional errors that
"affect substantial rights"
of a party. An error in admit-
ting plainly relevant evidence
which possibly influenced the
jury adversely to a litigant
cannot, under Fahy, be con-
ceived of as harmless. (Chapman
v. California, 386 U.S. 18,
23-24 (1967).
The Court restated the harmless error rule
while asserting that the rule adhered to
meaning of the Fahy case: "we hold .
that before a federal constitutional error
can be held harmless, the court must be
able to declare a belief that it was harm-
less beyond a reasonable doubt." Id.
-24-
The error in Chapman was then measured
in terms of the constitutional test and
held to have been harmless.
The harmless constitutional error
test was subsequently discussed by the
Supreme Court in Harrington v. California,
395 U.S. 250 (1968). In that case, Justice
Douglas speaking for a divided court
stated "We do not depart from Chapman;
nor do we dilute it by inference. We re-
affirm it." 395 U.S. at 254. However,
in reaching his decision to affirm appel-
lant Harrington's conviction, Douglas said:
(T)he case against Harrington
was so overwhelming that we con-
clude that this violation of
Bruton was harmless beyond a
reasonable doubt, unless we
adopt the minority view in Chapman
(386 U.S., at 42-45) that a
departure from constitutional
procedures should result in an
=23a
automatic reversal, regardless
of the weight of the evidence.
(Id. at 254.)
And again:
The case against Harrington .
is so overwhelming that unless we
say that no violation of Bruton
can constitute harmless error,
we must leave this state con-
viction undisturbed. (Id.)
The dissent (by Mr. Justice Brennan, with
whom the Chief Justice and Mr. Justice
Marshall joined) lamented:
The Court today overrules Chapman
v. California .. . the very case
it purports to apply .. . The
Court today by shifting the
inquiry from whether the consti-
tutional error contributed to
the conviction to whether the un-
tainted evidence provided "over-
whelming" support for the con-
-26<
viction puts aside the firm re-
solve of Chapman. . .” (395 U.S.
250, 255 (1969) (Brennan, J.,
concurring). )
We have found no subsequent Supreme Court
case which dilutes the impact of Harrington.
In the present case, the trial judge
found that the Watson test, which he ap-
plied, exonerated the misconduct of the
jurors: the erroneous admission of evi-
dence which the jury considered did not
result in the reasonable probability of a
different verdict. The trial court dis-
cussed but declined to apply the Chapman
case.
For the reasons stated below, this
court is of the opinion that the error
was harmless under either Chapman or
Harrington. °
TYPE "AB'' BLOOD
The properly admitted evidence showed
that Justice had type "AB" blood and that
o'Fu
type "AB" blood was found on the murder
weapon, on clothing and on toilet paper
used in the attack on Officer Davis.
Whether "AB" blood was rare would be ir-
relevant to show that Justice was one of
the assailants unless other evidence placed
Justice at the scene. And if Justice were
at the scene, had "AB" blood, sustained
a wound which was bleeding, then the “_
blood would be his "calling card" regard-
less of its rarity.
Justice was placed at the scene of
the attack by the testimony of Herman
Johnson, the apparent intended victim, by
Charles Johnson, the clerk-typist, and to
some extent by Ivan Kranzelic, the inmate
on the fourth floor of the hospital. The
fact that Justice was the only known sus-
pect to have "AB" blood type is merely
further evidence from which the jury could
conclude that he was present at the scene
Xt
of the murder. This is so without any re-
gard for the rarity of his blood type,
since his was the only blood which matched
that found on the weapon, on the clothing
and elsewhere. It was not the rarity but
the match up that placed him there. The
court is convinced beyond a reasonable
doubt that the evidence of the rarity of
the blood type did not contribute to
the verdict against Justice.
Whether Gibson was guilty of murder
could not in any way depend upon whether
Justice's blood type, "AB'', was rare. Any
consideration by the jury of such a fact,
if it did so, did not, beyond a reasonable
doubt, contribute to Gibson's conviction.
KRANZELIC'S MORPHINE DOSAGE
The eyewitness testimony of Kranzelic
has been termed by the petitioners here as
crucial to the prosecution. But his testi-
mony only placed the assailants on the
>"
7%
-29-
fourth floor of the hospital before and
immediately after the attack which took
place on the second floor. The intended
victim and Charles Johnson placed the
assailants on the second floor. Herman
Johnson was the only eyewitness to the
murder itself.
While Kranzelic's testimony might
have cumulatively added to an overwhelm-
ing mountain of testimony surrounding the
events July 21, it is not the testimony
which is being complained of here. The
jury knew that Kranzelic was taking mor-
phine. However, they were told he had not
been sleeping. No testimony was intro-
duced by the defense of any adverse
effect that dosage might have had on
Kranzelic's ability to perceive the events
he described at trial. While the defense
did suggest, in an argument lasting less
than a minute, that Kranzelic might have
«30
been asleep, the testimony was to the con- .
trary and uncontradicted. The defense did
attack, for more than a day of argument,
Kranzelic's motive for testifying and
reasons for lying. The subsequent dis-
covery by one juror that the amount of
morphine was minimal, and the prompt ad-
monition against considering such a fact,
negate any contribution such evidence
might have had to the verdict. In view of
the overwhelming untainted evidence, this
Court is convinced beyond a reasonable
doubt that the research into the effect F
of the morphine dosage on Kranzelic did
not contribute to the verdict.
CONCLUSION
There is no question that this jury's
misconduct was error. Under the Watson
test, applied pursuant to California cons-
titutional law, the court concludes there
is no reasonable probability that the
evidence admitted by juror misconduct
\
would have altered the verdict. Under
the Chapman-Harrington test, the court
finds beyond a reasonable doubt that this
evidence, erroneously admitted, did not
contribute to the verdict. Therefore,
IT IS ORDERED that the petition for
habeas corpus relief, filed by petitioners
Gibson and’ Justice, be and the same is
denied.
DATED: February 11, 1977
/s/ apencer Williams
FOOTNOTES = Earl Gibson and Lawrence Justice v.
Page 18
Page 17
Page 17
Thomas Clanon, srbethigeteene, See.
et al., No. SW
1/ This conduct was established by
affidavits filed to impeach the ver-
dict on the basis that the jury's
verdict was improperly influenced by
conduct censisting of overt acts which
are objectively ascertainable, i.e.,
influence open to sight, hearing and
Other senses and thus subject to
corroboration. Calif. Evid. Code
§ 1159; see People v. Hutchinson,
71 Cal. 2a-342> 452350 =350 (1969). The
summary of the content of the affi-
davits is taken from the opinion of
the California Court of Appeals, l
Crim. 12598, November 14, 1975.
2/ Compare People v. Watson, 46
Cal.2d 818, 836 (1956), cert.
denied, 355 U.S. 846 (1957), with
Chapman v. California, 336 U.S. 18
). But cf., Harrington v.
California, 355 U.S. 250 (1563).
3/. Appellant wore an army uniform
during his trial. The prosecution
introduced a letter in which appel-
lant intimated to army authorities
tnat his height was more than the
maximum accepted by the military at
the time. This evidence was osten-
sibly used to rebut the inference
appellant attempted to draw of patri-
otic fervor by showing tnat he really
wanted to get out of the army.
Page 20
Page 22
A The Court first found that the
ifth Amendment right of the peti-
tioners to remain silent made appli-
cable to the state court proceedings
through the Fourteenth Amendment was
a federal right requiring the Court
to fashion a federal rule. 386 U.S.
at aks
5/ The Court noted the similarity
with the California standard which
prevents a miscarriage of justice,
but also noted that the California
courts have neutralized this to some
extent by emphasis, perhaps over-
emphasis, upon a view of overwhelming
evidence. The state court in Chapman
found no miscarriage of justice as to
one appellant because it found from
"other substantial evidence ... the
proof of his guilt must be deemed
Overwhelming.” Id. at 23 and 23 n.7,
APPENDIX C
7%
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
PEOPLE OF THE STATE OF
CALIFORNIA,
1 Crim. 12598
Plaintiff and Respondent,
)
)
)
)
)
vs. ) Gua. Ce.
) No. 4150)
EARL BILLY GIBSON and )
LAWRENCE JUSTICE, )
)
-)
Defendants and Appellants
Defendants Earl Billy Gibson
("Gibson") and Lawrence Justice ("Justice")
appeal from the judgment upon convictions as
follows: Both defendants for violation of
Penal Code section 187 (murder); and Gibson,
for two counts of violating Penal Code sec-
tion 4500 (assault on a non-inmate by one
serving less than a life sentence). Each
defendant makes several assignments of error
which he claims to be prejudicial. In order
to place the respective contentions in proper
ate
perspective we set out the facts in pertinent
detail.
The Facts
Herman Johnson, an inmate in San
Quentin Prison, testified that Gibson had
accused him of being a witness in a case
involving the murder of a correctional
officer at Soledad Prison. Johnson denied
the accusation, but notwithstanding his
denial Gibson told him on two occasions that
he was going to "get hit."
On July 19, 1971, Johnson encoun-
tered Gibson and Justice at the foot of a
flight of stairs. ‘Johnson was stabbed in the
neck by Gibson and was taken to the prison
hospital. On the following day Gibson went
to football practice. He complained of an
injury to his back and was taken to the pri-
son hospital. Gibson was examined the next
morning by a doctor who determined that there
was no external evidence of injury and
authorized his release from the hospital.
«tn
Johnson had been assigned to room
202 on the second floor of the prison hospi-
tal. For security purposes Officer Leo Davis
was placed in front of the door to Johnson's
room. Johnson testified that on July 2l,
1971, at around noon, he heard a "scuffling"
sound outside his door. The door to his
room, which was locked, had a small window
and a food tray "porthole." Johnson observed
Gibson, Justice and a third person whom he
described as a tall black man who wore his
hair in a large natural. The three men were
dressed in jail blues, and Gibson wore a blue
wool cap. Johnson observed the unidentified
man holding Officer Davis around the neck
while Gibson and Justice struck him. Johnson
Stated that at one point he saw Justice pass
a knife to the unidentified man who then hit
the officer. Johnson heard a whistle blow
softly and then heard someone say, “He don't
have the key."
ale
Ivan Kranzelic, an inmate on the
fourth floor of the prison hospital, testi-
fied to certain events which he claimed to °
have observed immediately preceding and
following the attack on Officer Davis.
Although he acknowledged that he had received
morphine for pain, he denied sleeping. He
' stated that on the day of the attack, at
about 8:30 a.m., & man known as "Choice"
brought Gibson a pair of pajamas. "Choice"
left and returned about 20 minutes later at
which time Ricardo Cooper, "“Monky D" Palmer
and an unidentified tall black man were
present. At about 10:00 a.m., Dr. Erickson
examined Gibson and when he left Gibson
inquired of Palmer, "'Monky D,' did you
brought that things in?" When Palmer stated
that he had Gibson said, "We have to do it
today, doctor might put me in a cast.”
Gibson, "Choice," Cooper and the tall black
man went into the washroom. When they came
out Kranzelic observed Gibson changing into a
’%
aie
blue shirt and blue pants and observed Palmer
hand a "shank" to Gibson, which "Choice" then
Placed between a bunch of pajamas. Gibson
asked Cooper how he could pass by Miss
Baldwin and Cooper said he would take care of
that. Cooper took Kranzelic's crutches,
telling him they were for Gibson. Cooper,
Gibson and "Choice" left the room. A few
minutes later Palmer left.
About 20 minutes later, Cooper,
Gibson and "Choice" returned. They were
walking rapidly. They went into the kitchen
and Kranzelic heard water running. The three
men and Palmer, who had been in the kitchen,
came out of the kitchen and went to Gibson's
bed. Gibson asked "Mike", who was standing
in front of the kitchen, if the cops were
coming. Gibson was wearing a T-shirt. [It
had a blood spot on the side. Gibson took
his clothes off and put them in his night
locker, which he pushed to the end of the
|
wigio
room near the last bed. Gibson brought the
locker from that bed to his bed. He took
something wrapped in paper from under the
blanket of his bed and handed it to "Robert"
telling him to get rid of it. Robert threw
it out of the window. Gibson handed his
T-shirt to Cooper who went in the washroom.
Kranzelic heard a tearing sound and a
flushing of the toilet.
Kranzelic testified further that
"Choice" came out of the kitchen area holding -
his hand and some paper. He went to Gibson's
bed and threw the paper in a garbage can.
Palmer threw a roll of toilet paper with
blood spots on it in the same garbage can.
Cooper wore a lab coat under which he hid an
object that looked like a screw driver.
Gibson put on a new pair of pajamas. A few
minutes later an officer came in and arrested
Gibson.
Kranzelic described "Choice" as
being five feet four inches tall, between 22
'%
ote
and 24 years of age, with long messy hair.
He stated that "Choice" was a weight lifter
and that he walked with a limp. At a pre-
trial hearing Kranzelic identified a photo-
graph of defendant Justice as the person he
knew as "Choice." At the grand jury hearing
Kranzelic could not identify a photograh of
Justice.
Wayne Clark, a correctional officer,
searched the fourth floor of the prison
hospital for evidence. He found a roll of
toilet paper with red stains on it in a trash
can.
Charles Johnson, an inmate, testi-
fied for the prosecution. He stated that on
July 21, 1971, at about 11:45 a.m., he went
to visit a patient in the room next to that
occupied by Herman Johnson on the second
floor of the prison hospital. Officer Davis,
who was guarding Herman Johnson's room, asked
Charles Johnson to summon an attendant. As
Charles Johnson went around the corner he saw
Gibson, Justice and Reginald Muldrew in the
shower room. Charles Johnson summoned inmate.
Kajor, a hospital attendant, from the nurse's
station and accompanied him back to Herman
. Johnson's room. He noticed that Gibson,
Justice and Muldrew were still in the shower
room.
Charles Johnson visited the patient
in the room next to that of Herman Johnson
and then went down to the first floor. While
there he heard the panic buzzer and upon hear-
ing the officers say “second floor" he went
upstairs to the second floor where he
observed Justice and Muldrew. Justice asked
Charles Johnson what had happened and Johnson
replied that he didn't know. A nurse told
Charles Johnson to proceed downstairs. While
on the first floor Charles Johnson observed
that both Justice and Muldrew were there.
Justice was permitted to go through the
center grille gate.
-
atts
Officer George Randolph escorted
Justice out of the clinic door. Officer
Randolph noticed that Justice had something
in his right hand. When he asked Justice to
open his hand Justice glared at him but com-
plied, revealing blood-stained tissue paper
and a deep cut between the thumb and fore-
finder. Officer Ayres also observed that one
of Justice's hands was closed around some
paper.
Justice's hand was examined by
Arthur Cimon, a medical technical assistant,
at about 2:25 p.m. He observed three incise
wounds on the palm, which he described as
superficial and of the type resulting from a
cut Dy a knife, razor or piece of glass.
Simon testified that in his opinion the
wounds were fresh, possibly two or three
hours old, but that it was possible that they
were a few days old.
A white-over-brown rubber shower
thong was found near room 202, occupied by
=lQe
Herman Johnson. A similar thong was found in
room 224. The first was a left thong and the
second a right thong. Officer Ayres testi-
fied that Justice customarily wore a pair of
rubber shower thongs while in the hospital
and that these were white on the top and
brown on the bottom. When Justice was taken
from the hopsital about 30 to 45 minutes
after the attack on Officer Davis, he was
wearing green and white thongs of a different
shape than the one he customarily wore.
Ellis Baker, an employee of the
Department of Corrections who participated in
the search of the second floor of the hospi-
tal, observed a knife on the roofwell from
the window in room 226. When retrieved, the
knife, which had a wooden handle and some
tape next to the handle and the blade, had
red faded stains on the tape aiid blade. [In
room 224 bloodstains were discovered on the
bedsheets. A blue shirt, blue pants and a
-li-e
pile of.. freshly laundered pajamas were found
under the bed in room 224. A rubber shower
thong was found in the pile of pajamas. Some
of the pajamas had bloodstains, as did the
blue shirt and the blue pants. There were
bloodstains on the sink by the door and on
the bed. The bloodstains on the sink
appeared to be fresh. There were smudged
fingerprints on the window panes. Finger-
prints were also found on the knife, but they
could not be identified.
It was stipulated that Officer Davis
died of knife wounds. Davis received nine
wounds, all of which were consistent with _
having been inflicted by a single weapon.
Records of the Alameda-Contra Costa
Medical Association Blood Bank were intro-
duced into evidence. ‘These disclosed that
Officer Davis' blood type was "0." Blood
samples were taken from Gibson and Justice
pursuant to search warrants and the results
@12-
were admitted into evidence. Gibson's blood
type is "O" and that of Justice is type "AB."
Louis Maucieri, a criminalist
employed by the Department of Justice, was
permitted to testify as an expert, over
defense objections as to his qualifications.
He testified that "AB" type blood was found
on the kinife, on a pair of denim pants found
in room 224, on a roll of toilet paper found
in a fourth floor trash can, on a white
jacket found in the fourth floor soiled Linen
hamper, and on Gibson's bedding.
Sufficiency of the Evidence
Both defendants contend that the
evidence was insufficient to sustain a ver-
dict against them. In considering this con-
tention we must take cognizance of the
following basic rules applicable to appellate
courts: (1) "The test on appeal is whether
there is substantial evidence to support the
conclusion of the trier of fact; it is not
-~
ise
whether guilt is established beyond a reason-
able doubt." (People v. Redmond, 71 Cal.2d
745, 755; see also People v. Mulqueen, 9
Cal.App.3d 532, 540.); (2) The appellate
court "must view the evidence in a light most
favorable to respondent and presume in sup-
port of the judgment the existence of every
fact the trier could reasonably deduce from
the evidence." (People v. Redmond, supra, 71
Cal.2d 745 at p. 755.); (3) Before the appel-
late court may set aside a judgment of con-
viction on the basis of insufficiency of the
evidence, it must clearly appear that under
no hypothesis whatever is there sufficient
substantial evidence to support the conclu-
sion reached in the court below. (People v.
Spencer, 71 Cal.2d 933, 937; People v.
Redmond, supra, 71 Cal.2d 745 at p. 755.)
Gibson contends that the prosecu-
tion's case against him was so thoroughly
destroyed by the evidence adduced at the
-14- °
trial that a reversal is compelled. With
respect to the July 19 attack on Herman
Johnson, reliance is placed on the testimony
of several alibi witnesses who stated that
either they saw the attack on Herman Johnson
and that Gibson was not among the attackers
or that Gibson was elsewhere at the time the
incident occurred, and on the failure of
Herman Johnson to identify Gibson when he was
first interviewed by correction officers
after the attack. Gibson's statement to the
officers does not compel the inference that
he could not identify his attackers. He
merely refused to identify his attackers and
told the officers to wait and see it if hap-
pened again. At the trial Hernan Johnson
identified Gibson as his attacker. The cred-
ibility of Herman Johnson and the alibi wit-
nesses was a matter for the jury.
With respect to the July 21 attack
on Officer Davis, Herman Johnson's testimony
o13<
that he observed the attack and that Gibson
was one of the attackers and the inferences
that can be drawn from the testimony of
Kranzelic and Charles Johnson with respect to
Gibson's conduct at or about the time of the
attack provide substantial evidence that
Gibson participated in the attack. Gibson's
criticism of the prosecution's theory that he
faked an injury in order to obtain access to
the hopsital in order to "finish the job” on
Herman Johnson is a reasonable inference in
view of the testimony of Dr. Erickson and
that of Kranzelic. The fact that Gibson did
receive a slight injury at football practice
does not dissipate the prosecution's theory.
Gibson's argument that the testimony of
Kranzelic, Charles Johnson and Herman Johnson
indicates that Palmer was Davis' assailant
does not compel such an inference, but to the
contrary, was such as to warrant an inference
that Gibson was the assailant.
=16<
Justice contends that, except for
the testimony of Herman Johnson, there is no
evidence that he was in the area where the
attack on Johnson took place. Although three
witnesses testified that Justice was else-
where at the time of the attack, Johnson's
testimony, if believed by the jury, would
suffice to supply substantial evidence of
Justice's participation in the attack. With
respect to the attack on Officer Davis,
Herman Johnson testified that Justice was
present during the attack and that he
observed Justice pass a knife to a tall black
man who hit the officer with the knife.
Kranzelic's testimony as to Justice's conduct
at or about the time of the attack, Charles
Johnson's observations of Justice in the
vicinity of the area of the attack and the
circumstances surrounding the cuts on
Justice's hand are susceptible of inferences
that Justice participated in the attack on
Davis.
ol Fa
Defendants' attack is directed pri-
marily to the credibility of three prosecu-
tion witnesses and is predicated on certain
inconsistencies in their testimony. They
allege that each of these witnesses testified
falsely for the prosecution in expectation of
a parole. These inconsistencies and alleged
biases were fully developed at the trial. It
was for the jury to weigh the credibility of
these witnesses as well as the credibility of
the defense witnesses.
Grand Jury Organization
We consider, first, defendants' con-
tention that the jury which returned the
indictments against them was not selected in
a constitutionally premissible manner. In
People v. Pinell, 43 Cal.App.3d 627, 635
(cert. den., 43 U.S.L.W. 3659] (U.S. June 16,
1975), the same grand jury which indicted
defendants was held to have been selected in
a constitutionally permissible manner.
o18«
The Search Warrant
Search warrants authorizing the
taking of blood samples from each of defen-
dants was authorized. Defendants moved to
suppress the blood samples taken pursuant to
the warrants upon grounds of insufficient
showing of probable cause. The petition was
denied. The blood samples were analyzed for
blood type and the results were admitted into
evidence. These results provided a link in
the prosecution's efforts to connect Justice
to the killing by seeking to establish that
his blood was on the knife alleged to be the
murder weapon,
The search warrant was issued on the
basis of the affidavit of Correctional
Sergeant William Hankins. Attached to the
affidavit was a copy of the transcript of the
testimony of Herman Johnson given before the
Grand jury. Defendants contend that
Johnson's grand jury testimony was not
a1 Ga
properly before the magistrate and therefore
cannot form the basis of probable cause for
issuance of the search warrants.
Hankins' affidavit states, in part,
that he had read a certified copy of the
grand jury transcript attached as an exhibit
to the affidavit and that the testimony
therein of Herman Johnson indicated that
defendants were two of the persons who
stabbed and killed Officer Leo G. Davis.
Hankins did not purport to swear to the truth
of the matters contained in the*grand jury
testimony. of Herman Johnson but merely stated
that defendants had been indicted by the
grand jury for Officer Davis’ murder and that
a copy of the indictment and the grand jury
transcript were attached to and incorporated
in his affidavit. Hankins' allusion to
Herman Johnson's testimony was for the pur-
pose of stating the ground for the issuance
of the search warrants. The factual basis
-20<
for the issuance of the search warrnat was
the grand jury transcript itself, an official
document which indicated that the matters
therein testified to were given under oath by
the witness giving the testimony. The incor-
poration of the grand jury transcript in the
affidavit was proper. (See People v. Sloss,
34 Cal.App.3d 74, 81-82; and see United
States v. Ventresca, 380 U.S. 102, 108.)
Defendants assert that the grand
jury testimony of Herman Johnson does not
meet the requirements of Aguilar v. Texas,
378 U.S. 108. Aguilar holds that an affi-
davit for a search warrant may be based on
hearsay information and need not reflect the
direct personal sheacvations of the affiant,
but that it must contain both the underlying
circumstances from which the informant con-
Cluded that a crime had been committed and
some of the underlying circumstances from
which the officer concluded that the infor-
mation was credible or his information
@2)le
reliable. (At p. 114.) Accordingly, the
affidavit must allege the informant's state-
ment in language that is factual rather than
conclusionary and must establish that the
informant spoke with personal knowledge of
the matters contained in the statement, and
the affidavit must contain some underlying
factual information from which the magistrate
issuing the warrant can reasonably conclude
that the informant was credible or his infor-
mation reliable. (Skelton v. Superior Court,
1 Cal.3d 144, 152; People v. Superior Court,
6 Cal.3d 704, 711.)
In the present case, Herman
Johnson's testimony before the grand jury was
Clearly factual in nature and indicated that
he had personal knowledge of the facts
relatea.2/ His testimony under oath was as
1. Herman Johnson's testimony before the
grand jury as to his observations was essen-
tially as given at the trial, the substance
of which is included in the narrative of the
facts above set forth.
=2Fe
to matters and conduct personally observed by
him. This testimony was also sufficient to
supply the underlying factual information
from which the magistrate could conclude that
Herman Johnson was speaking truthfully and
that the information was reliable. It was
reasonable for both the magistrate and
Hankins to conclude that Herman Johnson was
both the victim of and a witness to a crime
from the nature of the information given by
him and the circumstances under which such
information was given.
The parties dispute at length
whether Herman Johnson can be characterized
as a “citizen-informer." The People contend
that because Herman Johnson was a victim of
and a witness to a crime his reliability is
Presumed. Defendants argue that because
Johnson was a prison inmate, a felon, and a
prosecution witness he was not a "citizen-
/
7%
o33e
informer .*2/ In the present case we need not
determine whether Johnson can be character-
ized as a “citizen-informer." Such a charac-
terization is important only in determining
whether the magistrate could reasonably rely
upon the information supplied to him under
the circumstances. Here the circumstances
before the magistrate were quite different
2. Corroboration of information received
from an informant is unnecessary for search
warrant purposes where the informant's state-
ments are made as the victim of a crime or on
his personal observation of a crime. (People
v. Hill, 12 Cal.3d 731, 761; People v. Paris,
48 Cal.App.3d 766, 772-773.) In such a case
the informant is presumptively reliable as a
"citizen-informant" even though his reliabil-
ity has not been previously tested. (People
v. Hill, supra; People v. Hogan, 71 Cal.
888, 890; People v. Paris, supra, at p. 773.)
A "citizen-informant" is distinguished from a
mere informer who gives a tip to law enforce-
ment officers that a person is engaged in the
course of criminal conduct. (Kraus v.
Superior Court, 5 Cal.3d 418, 421-422; People
v. Hogan, supra, 71 Cal.2d 888, 891.)
Accordingly, experienced stool pigeons or
persons criminally involved or disposed are
not regarded as “citizen-informants" because
they are generally motivated by something
other than good citizenship. (People v.
Scoma, 71 Cal.2d 332, 338, fn. 7; People v.
Griffin, 250 Cal.App.2d 545, 551; People v.
Lewis, 240 Cal.App.2d 546, 550.)
atte
from the ordinary situation where the affiant
is relying upon information from an infor-
mant, a victim of a crime or a witness to a
crime. Here the affiant was relying upon
information given by Herman Johnson through
testimony under oath before a grand jury.
Under these circumstances the magistrate
could reasonably conclude that the informant
was credible or that his information was
reliable. In testifying before a grand jury
a witness is exposing himself to charges of
perjury as well as to an action for malicious
prosecution if he makes unfounded charges.
Such a person is more than a mere informer
who gives a tip to law enforcement officers
or who is criminally involved or disposed.
The badge of reliability is impressed upon
the informant because he is a witness under
oath in a legal proceeding subject to the
sanctions imposed by law if he testifies
falsely. (See People v. Hogan, supra, 71
Cal.2d 888, 890-891.)
~ =
Defendants next contend that the
search warrant does not present particular-
ized facts which demonstrate an evidentiary
"nexus" between the property seized and the
crime under investigation under the principle
articulated in Warden v. Hayden, 387 U.S.
294, 307, that ". . . probable cause must be
examined in terms of cause to believe that
the evidence sought will aid in a particular
apprehension or conviction."
The thrust of defendants’ contention
is that in the instant case a showing of the
evidentiary value of the blood types of
defendants would have to include (1) probable
Cause to believe that the AB type blood found
on the alleged murder knife was not that of
the victim, and (2) probable cause to believe
that one or both of defendants left their
blood on the knife. The affidavit, they con-
tend, fails on both counts.
Although the affidavit does not
State that the victim's blood type was not AB
aZga
or that either of the defendants had wounds
on his body, it does state certain facts from
which the magistrate could find probable
cause that the AB type blood found on the
knife was not that of the victim and that one
or both of the defendants left their blood on
the knife. The affidavit states that the
affiant was advised by correctional officers
that Officer Davis had been stabbed numerous
times by assailants while he was on duty in
front of room 202 of the hospital. From his
personal knowledge, the affiant was aware
that Officer Davis and others had been
assigned to guard Herman Johnson, the patient
in room 202. He had been advised that a
knife had been found in a corner of as roof-
well immediately adjacent to room 224 and he
personally observed the knife in this posi-
tion. He observed bloodstains on the knife.
He also ". . . personally examined the hospi-
tal corridor area adjacent to room 202 and
atte
observed several large splotches and droplets
of fresh blood on the floor, leading away
from room 202 and toward the center corridor
where room 224 was located." The alleged
fact that a trail of droplets of blood led
from the area where the officer was stabbed
to the room adjacent to the place where the
murder knife was found reasonably suggests
that the assailants fled to the area of room
224 leaving a bloody trail. The reasonable
interpretation is that either the victim's
blood was dripping from the knife or that one
Or both of the assailants was injured and |
bled while fleeing from the scene of the
crime.
We conclude that the affidavit does
not fail as a matter of law to set forth com-
petent evidence supportive of the magistrate's
finding of probable cause. The facts stated
are such as would lead a man of ordinary
caution and prudence to believe and conscien-
tiously entertain a strong suspicion of the
~28@
guilt of the accused in the light of the
facts and circumstances presented. (See
Skelton v. Superior Court, 1 Cal.3d 144,
150.) Probable cause does not need as strong
evidence as is needed to convict, and it is
the function of the magistrate, not the
reviewing court, to appraise and weigh the
evidence presented by the affidavit in sup-
port of a search warrant. (Skelton v.
Superior Court, supra; see United States v.
Ventresca, supra, 380 U.S. 102, 107.)
Defendants also contend that the
affidavit is invalid because it does not
identify the person to be searched or the
things to be seized. They state that only
the warrants contain such description. The
federal constitutional mandate is that "no
Warrants shall issue, but upon probable
Cause, supported by Oath or Affirmation, and
particularly describing the place to be
searched, and the persons or things to be
«3Qu
seized." (U.S. Const., 14th Amend.). The
California Constitution contains similar
language. (Art I, § 13.) The mandate is
also to be found in Penal Code section 1525,
which provides that the warrant cannot be
issued but upon probable cause supported by
an affidavit naming or describing the person
and particularly describing the property and
place to be searched.
In People v. Alvarado, 255 Cal.App.
2d 285, 291, the applicable test is described
as follows: "It [the affidavit] must
describe with reasonable particularity the
place to be searched, and the property to be
seized. ([Citation.] The test for the latter
is ‘whether the warrant places a meaningful
restriction on the objects to be seized.'
[(Citation.]" (See Aday v. Superior Court, 55
Cal.zd 789, 796.)
The affidavit in the instant case
sets forth with particularity the affiant's
@36-
personal observations and verifications from
prison records of defendants’ presence at the
prison hospital at the time of the homicide;
that he assisted in the investigation of the
stabbing and the finding of a knife on the
roofwell immediately adjacent to room 224 in
the prison hospital; his examination of the
knife and his observation of the bloodstains
thereon; his receipt of the report from the
Criminalist that the bloodstains on the knife
were of group AB human blood; his observa-
tions of fresh blood on the floor of the pri-
son hospital leading from room 202, where
Officer Davis had been guarding Herman
Johnson, toward room 224; his observations of
a number of latent fingerprints having been
lifted from the wall area around room 202;
and his reference to the testimony given by
Herman Johnson to the grand jury that defen-
dants had stabbed Officer Davis. The affi-
davit then concludes as follows: "Wherefore
w 32a
your affiant prays that an order of this
court issue allowing the procurement of the
above mentioned samples of evidence for the
purpose of comparing the same with blood
stained knife and fingerprints mentioned
above on the grounds that said comparisons
will tend to show that a felony has been
committed."
An examination of the search warrant
indicates that the affidavit executed by
Hankins was presented to a judge of the
Superior court and that the search warrant
was restricted to the blood samples and
fingerprints of defendants sufficient for
testing. It is apparent that the warrant
restricts the things to be seized and that
the magistrate understood from a reading of
the affidavit, which specifically mentioned
defendants by name as the persons who stabbed
Officer Davis, that the purpose of the search
Warrant was to obtain blood samples from
o32e
defendants in order to compare them with the |
bloodstains on the knife and to obtain defen-
dants' fingerprints in order to compare them
with those taken from the wall area around
room 202.
In United States v. Ventresca,
supra, 380 U.S. 102, 108-109, the Supreme
Court observed that ". . . affidavits for
search warrants .. . must be tested... in
a commonsense and realistic fashion" and not
by "[t]echnical requirements of elaborate
specificity once enacted under common law
pleadings . .." (See People v. Superior
Court, 6 Cal.3d 704, 711.) Accordingly, we
conclude that the affidavit in support of the
search warrant in the present case met the
constitutional, statutory and decisional
requirements.
-33-
Blood Type Evidence
The court overrruled defendants'
objections to the admissibility of evidence
that AB blood type was found on the knife
retrieved from the roof well adjacent to room
224, on a pair of blue denim pants found in
room 224, on a roll of toilet paper found in
a trash can on the fourth floor of the prison
hospital and on a white jacket taken from a
linen hamper on the first floor of the hospi-
tal, and that Justice's blood type was AB.
Defendants contend that the court erred in
admitting the evidence.
The precise issue has not been pre-
sented to a California appellate court. In
several cases in which blood grouping tests
were admitted, admissibility was apparently
presumed. (See People v. Kemp, 55 Cal.2d
458 [cert. den., 368 U.S. 932]; People v. Jordan,
45 Cal.2d 697; and People v. Mummert, 57
Cal.App.2d 849 disapproved on other grounds
in People v. Collins, 54 Cal.2d 57, 60];
-34-
see also People v. Deriso, 222 Cal.App.2d 478.) |
The weight of authority in this
country holds that the results of blood
grouping tests are admissible in evidence on
the question of whether particular blood was
the blood of a specified individual or
whether particular bloodstains were made by a
specified individual. (See cases collected
and cited in 163. A.L.R. 939, 950-953; 46
A.L.R. 2d 1000, 1025-1027; 29 Am.Jur.2d 481,
§ 370.) The case of People v. Robinson,
27 N.Y.2d 864, 265 N.E.2d 543, relied upon by
defendants and holding that such evidence is
not admissible, is contrary to the weight of
authority.2/ :
The rationale of the cases upholding
the admissibility of blood grouping tests in
3. Robinson involved type A blood. The
evidence was held inadmissible because a
large part of the population has blood of
this type. This decision was criticized ina
law review article by Jerome Price entitled
"Evidence," 23 Syracuse L.Rev. 3l1l, 326-327.
criminal cases is that such evidence is a
link in the chain of circumstantial evidence
tending to show guilt. (See 163 A.L.R. 939,
950.) We perceive such evidence to be
admissible on the ground of relevancy as
countenanced by the Evidence Code. Section
210 of the Evidence Code, in pertinent part,
defines “relevant evidence" as "., .. evi-
dence . . . having any tendency in reason to
prove or disprove any disputed fact that is
of consequence to the determination of the
action." Section 351 of the Evidence Code
provides: "Except as otherwise provided by
statute, all relevant evidence is ad-
missible." There is no statute proscribing
the admissibility of blood grouping tests.
Defendants discuss at length cases
involving the use of blood tests to prove or
disprove paternity, contending that in such
cases blood group evidence that excludes the
possibility of parternity is admissible while
that which only shows the possibility of
2.
-36<
paternity is inadmissible. In considering
this contention we first observe that the
determination of paternity and the relevancy
of the evidence based on tests is governed by
statute. California has enacted a specific
chapter of the evidence code known as the
"Uniform Act on Blood Tests to Determine
Paternity." (Evid. Code, §§ 890-897.) The
act authorized the court to order the mother,
child and alleged father to submit to blood
tests. (§ 892.) It does not make the
results of the blood tests inadmissible in
evidence. To the contrary, it specifically
provides that the experts who make the tests
shall be called as witnesses to testify as
to their findings and shall be subject to
cross-examination by the parties. (§ 893.)
The act does not proscribe admissibility of
the tests but deals with the court's deter-
mination of paternity based on those tests.
Section 895 provides: “If the court finds
that the conclusions of all the experts, as
disclosed by the evidence based upon the
tests, are that the alleged father is not the
father of the child, the question of paternity
shall be resolved accordingly. If the
experts disagree in their findings or conclu-
sions, the question shall be submitted upon
all the evidence." (See Hodge v. Gould, 274
Cal.App.2d 806, 808.) In essence, section
895 deals with the weight to be given to the
admissibility of blood tests and not to their
admissibility in evidence. (See A.L.R.2d,
§§ 12 and 13 at p. 1027.)
Defendants' contention that the
admission of blood grouping tests contravenes
the rule of People v. Collins, 68 Cal.2d 319,
is without merit. Collins held it to be prej-
udicial error where the prosecution offered,
through an expert, a formula in statistical
probability from which the jurors were
invited to infer that the odds against
defendant's innocence were one in 12,000,000.
The court found that the testimony itself
-!
lacked an adequate foundation both in evi-
dence and in statistical theory and that
testimony and the manner in which the prose-
cution used it distracted the jury from its
proper function. (At p. 327.) The defi-
ciency recognized in the evidence proferred
in Collins is not present in the case of
blood grouping tests. The scientific basis
and accuracy of these tests have been
recognized by the courts and it is upon this
recognition that, when a proper foundation is
laid, the results of such tests are
admissible in evidence on such questions as
identity and paternity. (See Annotations on
blood grouping tests in 163 A.L.R. 939 and
46 A.L.R. 2d 1000.)
Blood Donor Records
Defendants contend that it was error
to permit the admission into evidence of
blood donor records from the Alameda-Contra
Costa County Medical Association Blood Bank.
These records were introduced to show that
-39-
Officer Davis' blood type was not AB and thus
that it was not his blood which was found on
the knife and other articles associated with
the murder. Defendants argue that the
records were not admissible under the
“business records" exception to the hearsay
rule and that introduction of these records
was violative of their Sixth Amendment right
to confront witnesses.
The evidence was presented by Peter
Rosendale, the technical director of the
blood bank. He described the procedure
employed by the blood bank in typing the
blood of potential donors. Rosendale pro-
duced donor history cards of a Leo G. Davis.
He also produced the "lab notes" or
worksheets of the technicians who typed the
blood. A sample had been tested on or about
December 1, 1969. The interpretation from
the results was that Davis had type O blood.
The court admitted the evidence.
-40=-
The business records exception to
the hearsay rule is provided for in Evidence
Code section 1271, which permits the intro-
duction of evidence of a writing made as a
record of an act, condition or event when
offered to prove the act, condition or event
if certain conditions are met. Defendants
argue that this exception has no application
to proof of a person's blood type.
In People v. Utter, 24 Cal.App.3d
535, 552-553, haqspital records relating to
the blood type of the victim were held to
come within the business records exception.
Similarly, in People v. Williams, 187
Cal.App.2d 355, 367-368, the report of the
results of a blood test showing absence of
alcohol in the decedent's system was
admissible as a business record. The cases
relied upon by defendants where records were
held to be inadmissible are cases in which
the writing sought to be admitted was a
record of the conclusion of the declarant
rather than the record of an act, condition
or event.4/ Most of these cases involve the
record of a medical diagnosis.
In the instant case the evidence
admitted was not a record of a conclusion or
medical diagnosis. It was not based upon the
"thought process" of the technician but
rather upon the "mechanics of blood typing."
(See People v. Utter, supra, 24 Cal.App.3d
535, 552-553.) The expert who testified
stated that the results of a blood grouping
4. In Hutton v. Brookside Hospital, 213
Cal.App.2d 350, 354-355, the court held in-
admissible the record of a registered nurse's
conclusion that the patient "seemed too ill
to be moved." In People v. Terrell, 138
Cal.App.2d 35, 57-58, the court held inad-
missible the notation in a hospital record of
a diagnosis of a probable criminal abortion
upon the rationale that the diagnosis was the
reasoning of the person making it arrived at
from the consideration of many factors. The
same rationale was applied in People v.
Reyes, 12 Cal.3d 486, 503, a cases involving
a medical diagnosis, wherein it was observed
that there was no opportunity to cross-
examine the person making the diagnosis for
the purpose of determining what factors led
him to his conclusion and where he was quali-
fied to make it.
examination case were considered to be an
“interpretation.” We are persuaded that
since the results of a blood grouping exami-
nation are reached through mechanical pro-
cedures from which interpretations can be
made, the record of such results are more
akin to evidence of a condition than to a
"conclusion." Accordingly, we conclude that
records of a blood grouping made under the
conditions prescribed in Evidence Code sec-
tion 1271 are admissible under the business
records exception.
Defendants argue that the Legisla-
ture has expressly determined that blood
grouping results should be subject to cross-
examination and are not within the business
records exemption to the hearsay rule. Their
authority for this contention is Evidence
Code section 893, which is concerned with
court-ordered blood tests to determine pa-
ternity. This statute directs that the
court-appointed experts shall be subject to
cross-examination. Section 893 is clearly
applicable to a specific situation and does
not reflect in any way upon the question
whether results of blood tests are admis-
sible under the business records exception to
the hearsay rule.
Adverting to the constitutional
right of confrontation, we note that it has
been recognized that certain exceptions to
the hearsay rule do not violate the Sixth
Amendment right to confrontation. (See
People v. Brawley, 1 Cal.3d 277, 290 [cert.
den., 400 U.S. 993] (extrajudicial statement
of coconspirator); Tomlin v. Beto, 377 F.2d
276, 277 (official records of prior
conviction); McDaniel v. United States, 343
F.2d 785, 789 [cert. den., 382 U.S. 826]
(business records of a corporation) .)
Defendants urge us to consider
Kienlen v. United States, 437 F.2d 843,
848-849, and United States v. Partin, 493
F.2d 750, 763. These cases involved opinions
aha
and conclusions recorded in hospital records,
the admission of which in each case involved
the accused's constitutional right to be con-
fronted with witnesses against him. It
should be noted that Partin held that the
portions of the hospital records showing
statements of the patient-witness, notation
of symptons, and treatment rendered were ad-
missible as factual data. (At pp. 763-764.)
Brawley, supra, has not been over-
ruled by'California v. Green, 399 U.S. 149,
Or Dutton v. Evans, 400 U.S. 74. Defendants
take comfort in the statement in Green that
", . » we have more than once found a viola-
tion of confrontation values even though the
statements in issue were admitted under an
arguably recognized hearsay exception." (At
pp. 155-156.) However, Green does not hold
that the business records exception to the
hearsay rule violates the confrontation
Clause of the Sixth Amendment. Green was
concerned with the Evidence Code section 1235
~~
which permits an inconsistent statement of a
witness to be used as substantive evidence if
the statement of a witness to be used as
substantive evidence if the statement is
otherwise admissible. The statute provides
that such a statement is not made inad-
missible by the hearsay rule. The consti-
tutionality of section 1235 was upheld in
Green. Defendants’ reliance on Dutton is
misplaced. That case held that a Georgia
Statute allowing into evidence as an excep-
tion to the hearsay rule a conconspirator's
out-of-court statement made during the con-
cealment phase of the conspiracy, was not
unconstitutional or violative of the right to
confrontation secured by the Sixth and
Fourteenth Amendments. (400 U.S. at pp. 83,
87-88, 89.)
Pretrial Photographic Identification
A group of photographs was shown to
both Herman Johnson and Charles Johnson.
Herman Johnson was shown 18 photographs on
~46<
the day of the murder. He picked out photo-
graphs of defendants, but was unable to
identify the third assailant. He was shown
the same group of photographs twice more,
with the same results. The same group of
photographs was shown to Charles Johnson on
July 23, 1971. He picked out defendants and
Reginald Muldrew. Each of the photographs
had imprinted on it the name of the person
depicted. No attempt was made to mask the
names when the photographs were displayed to
the witnesses. |
Defendants contend that the photo=
graphic identification was impermissibly
suggestive in that the names were on the
front of the photographs and that therefore
the subsequent in-court identifications were
tainted. (See Simmons v. United States, 390
U.S. 377; and Stovall v. Denno, 388 U.S. 293.)
The thrust of this contention is that de-
fendants were deprived of due process.
-47-
"A violation of due process occurs
only when the pretrial procedure is so imper-
missibly suggestive as to give rise to a very
substantial likelihood of irreparable mis-
identification.” (People v. Enos, 34
Cal.App.3d 25, 38; Neil v. Biggers, 409 U.S.
188, 199-200; Stovall v. Denno, supra, 388
0.8. 293, 302.)
In the present case the trial court
conducted an extensive pretrial hearing on
the propriety of the identification proce-
dures at the conclusion of which it denied
defendants' motion to suppress. This deter-
mination was tantamount to a finding that the
pretrial identification procedures were fair.
Under these circumstances the identifying
witness may identity the defendant in the
courtroom without the necessity of showing
that the courtroom identification has an ori-
gin independent of the pretrial procedures.
(People v. Rodriguez, 10 Cal.App.3d 18,
30-31; People v. Neal, 271 Cal.App.2d 826,
_
831-832 [cert. den., 396 U.S. 946]; People v.
Douglas, 259 Cal.App.2d 694, 698.) "In such
case the defendant may still offer before the
jury such evidence of unfairness as he can
produce. Such evidence affects the weight
rather than the admissibility of the identi-
ification. [Citations.]" (People v.
Rodriquez, supra, at p. 3l.)
Our inquiry, therefore, is to deter-
mine whether as a matter of law the trial
judge was required to make a determination
that the pretrial identification was unfair
sO as to place the burden upon the prosecu-
tion to establish that the in-court identi-
fication will have an origin independent of
the pretrial identification. (People v.
Rodriguez, supra, 10 Cal.App.3d 18, 30-31;
People v. Douglas, supra, at pp. 694, 698;
see United States v. Wade, 388 U.S. 218,
239-242.)
The evidence adduced at the pretrial
hearing disclosed that prior to the pretrial
-49-
photographic identification of defendants and
Reginald Muldrew, Charles Johnson gave
Sergeant Hankins the names of two of the per-
sons whom he thought had been involved. He
named one as "Justice" and one as "Reggie."
Hankins, prior to showing Charles Johnson the
photographs, did not give him the names of
any individuals who might be involved.
Charles Johnson then picked out from the
group of photographs those of defendants and
that of Muldrew. Defendants' objection is
that Charles Johnson must have known by this
time that defendant Gibson had been taken
into custody. This assertion, however, is
pure speculation as Charles Johnson denied
that he knew at that time whether or not
anyone had been taken into custody. It was
his understanding that the suspects were
still at large.
Herman Johnson testified that prior
to the photographic identification he gave
Sergeant Hankins appellant Gibson's name. He
-50-
did not give him Justice's name as he did not
know it. He also testified that prior to
being shown the group of photographs he was
not told that either Gibson or Justice were
Suspected. Darrell Smith, who showed Herman
Johnson the group of photographs, testified
that prior to displaying them he did not
indicate to the witness the names of any
Suspects. His testimony, however, does
contradict that of Hermann Johnson in that
Smith testified that Herman Johnson gave him
the names of "Earl" and "Giggles" prior to
the identification. "Giggles" is Justice's
prison nickname.
The evidence adduced at the pretrial
hearing produced a fact finding situation.
The resolution of factual conflicts, if any,
and the credibility of the witness were mat-
ters for the trial court. (See People v.
Rodriguez, supra, 10 Cal.App.3d 18, 31-32.)
The trial court was satisfied that the names
on the photographs did not destroy the
'%
-.
-5l-
reliability of the identification procedure.
The court was apparently satisfied that the
witnessses were unaware of the names of any
suspects. Both witnesses denied such
knowledge. Under the circumstances we per-
ceive no error in the trial court's
conclusion that the pretrial identification
was fair.
We observe, moreover, that even if
we were to assume that the trial court might
have made an initial determination that the
pretrial identification was unfair, its
determination to permit the in-court identi-
fication was supportable on the basis that
the in-court identification of defendants had
an origin independent of such pretrial
identification. In the instant case there is
no substantial likelihood of misidentifica-
tion. The testimony at trial indicates that
the identification of defendants by Herman
Johnson and Charles Johnson was based on
their observance of defendants at the prison
-52-
hospital at or about the time of the homi-
cide. Under the totality of the circumstan-
ces it cannot be asserted that defendants
were deprived of due process because of an
improper pretrial identification. (See Neil
v. Biggers, supra, 409 U.S., 188, 199.)
Voir Dire of Juror Chapman
Defendants contend that the trial
court should have granted their motion for a
new trial on the ground that juror Beauford
Chapman withheld relevant information on voir
dire of Chapman, other prospective jurors
were questioned whether they knew Or were re-
lated to law enforcement personnel. On his
voir dire Chapman was asked whether, from the
questions asked of other jurors, anything was
suggested to him that he felt he might want
to comment upon. Chapman answered "No." He
was then asked specifically, "You don't know
any law enforcement related people?" Chapman
did not give a direct "yes" or "no" answer,
but stated a student with whom he went to
-53<
high school was a law officer in Marin County
but that he was not a friend. Chapman was
also asked whether in addition to his wife
and children he had any immediate family that
resided in the area. To this question
Chapman responded: "My mother-in-law, and my
father, and one sister, and two brothers,
none of whom are in law, or police, or
anything." Chapman was then passed for cause.
Defendants presented the affidavit
of Juror Carol Rogiers which stated that, at
some point subsequent to the court's intro-
ductory remarks and prior to Chapman's actual
voir dire, Chapman commented to her "They'll
never keep me, my father-in-law was a police
officer in San Francisco."
In his affidavit Chapman stated he
recalled making a statement in the jury room -
before the actual selection of the jury that
his father-in-law had been a police officer
and that he "may have speculated as to what
effect this might have on my selection." He
-54-
stated that this reference was made in "a
purely speculative sense" because he did not
feel that the fact that his father-in-law had
been a police officer would affect his
ability to be fair and impartial. The affi-
davit states that his father-in-law had re-
tired around 1959, one year after Chapman's
marriage, and that he had died in 1967. The
affidavit states that his father-in-law had
never discussed the cases he worked on and
never made any statements about his contacts
Or experiences in his police work. The affi-
davit states that Chapman felt that his asso-
ciation with his father-in-law would not af-
fect his ability to be fair and impartial and
for that reason he did not feel it "was a
matter worth mentioning."
Affidavits of jurors may be used to
set aside a verdict where the bias or dis-
qualification of a juror was concealed by
false answers on voir dire examination.
People v. Castaldia, 51 Cal.2d 569, 572;
People v. Hutchinson, 71 Cal.2d 342, 346-348
(cert. den., 396 U.S. 994].) The question
whether a new trial should be granted rests
with the sound discretion of the trial court
and its determination cannot be disturbed
unless there has been an abuse of discretion.
(People v. Grinnel, 257 Cal.App.2d 653, 663;
People v. Starkey, 234 Cal.App.2d 822, 831.)
In the present case we cannot say
that there has been an abuse of discretion in
denying the motion for new trial on the
sround of Chapman's failure to disclose his
father-in-law's occupation. It was the trial
court's function to weigh Chapman's credi-
bility. In the duwictas of that function the
court specifically found that Chapman did not
deliberately conceal his father-in-law's
occupation. We also observe that no evidence
was adduced that Chapman was prejudiced or
biased or that he prejudged the case. The
affidavit of Juror Rogier does not present
any such evidence. Chapman's affidavit
denying bias or prejudice is sufficient to
support a negative finding on that issue.
(Clemens v. Regents of University of
California, 20 Cal.App.2d 276, 284.)
In Castaldia, upon which defendants
rely, two jurors gave false answers on their
void dire examination. Substantial evidence
was adduced that these jurors were biased and
prejudiced against persons charged with the
offense (bookmaking) for which the defendant
was on trial. The judgment and order denying
the motion for new trial was reversed because
the reviewing court after examining the
record which disclosed that the case was a
Close one, concluded that the misconduct of
the jurors resulted in a miscarriage of
justice. (51 Cal.2d at pp. 572-573.)
Similarly, in Clemens, another case upon
which defendants rely, there was substantial
evidence of prejudice and prejudgment on the
part of the juror accused of misconduct. In
that case, a medical malpractice action, the
juror involved was a dentist, but when asked
his occupation on voir dire he stated he was
engaged in ranching and investment planning.
He also stated that he had no bias or preju-
dice against malpractice litigation, would
encourage it ina proper case, and that he had
formed no opinion on the merits of the case.
Affidavits of other jurors indicated that the
juror told them he had not disclosed that he
was a dentist because he would have been
"kicked off" and contained statements indi-
cating bias and prejudice on the part of the
juror against the plaintiff and that he had
prejudiced the issues. The reviewing court
concluded, upon an independent review of the
record, that since bias, prejudice and pre-
judgment were clearly proved, the plaintiff
was deprived of his constitutional rights to
a fair trial. (20 Cal.App.3d at pp. 366-
367.)
We also find Clark v. United States,
289 U.S. 1, to be inapposite. In that case a
juror was found guilty of contempt for her
intentional concealment on voir dire of her
disqualification by previous employment by
the defendant in a case where the jury was
discharged because it was unable to agree,
the single vote for acquittal being cast by
the juror found to be in contempt. The con-
cealment by the juror was specifically
found to be wilful and deliberate and her
statement on voir dire that she was free. from
bias was found to be a positive misstatement.
The juror's bias was confirmed by her conduct
in relation to her fellow iurors both during
the trial and during deliberations. (At
pp. 10-11.)
Defendants also contend that they
were denied their absolute right to exercise
a peremptory challenge. The declaration of
attorney Glenn states that he would have
exercised a peremptory challenge to excuse
Chapman if he had been aware that Chapman's
father-in-law has been a policeman. The
-59-
record discloses that defendants were each
entitled to 25 peremptory challenges (Pen.
Code., §§ 1070, 1070.5) and that between
them they exercised only 14 challenges.
Thus, they were not deprived of any right to
exercise a peremptory challenge. Their unde-
veloped argument is a speculative one to the
effect that they would have exercised a
peremptory challenge with respect to Chapman
had they known that his father-in-law had
been a policeman.
Newly Discovered Evidence
In support of their motion for a new
trial defendants filed the declarations of
Franklin P. Glenn and Marvin Stender, their
attorneys. Glenn's declaration stated that
in pretrial discovery he learned that Jack
Pierce, a San Quentin inmate housed in the
cell adjacent to the corridor where Officer
Davis was attacked, was an eyewitness to the
attack. Pierce refused to answer any of
Glenn's questions at a pretrial interview.
ss
>
~~
At a post-trial interview Pierce stated that
he saw three assailants attack Davis: “that
of the three one was ‘a head taller' than the
other two; that he was not certain of his
tentative identification of Gibson as the
tallest of the three assailants; but that
Pierce was certain that neither of the two
shorter assailants was Gibson." Glenn
declared that had he known that Pierce could
not definitely identify Gibson as the tallest
of the three assailants he would have called
Pierce to testify. His reasoning was that
Pierce's testimony, coupled with that of
Herman Johnson (who testified that Gibson was
not the tallest of the three assailants),
would have definitely established that Gibson
was not one of the assailants. Glenn stated
he could not have discovered this information
before because of Pierce's refusal to talk
to him.
The declaration of attorney Marvin
Stender states that in a pretrial interview
«61
with Pierce, Pierce described a conversation
he had had the day before the attack on
Officer Davis. This conversation was with an
inmate whom Pierce described ". ..asa
short, muscular, black inmate who walked with
a limp and who worked in the prison hospital
linen room." This description, the declarant
alleges, fits only Justice. In the same
interview, Pierce stated that the above
described inmate was not one of the three
assailants. Following this interview Stender
approached Pierce on a street corner adjacent
to Pierce's home for the purpose of showing
Pierce a photograph of defendant Justice.
However, before he was able to do so, Pierce
was called to answer a telephone call.
Pierce did not return to resume his conver-
Sation with Stender.
Stender declared, further, that in a
post-trial interview Pierce told him that the
telephone call which had terminated the pre-
vious interview was from a Mr. Beckwood, an
-62@
investigator for the California Department of
Corrections, and that Beckwood had told him
to discontinue his conversation with Stender.
The declaration stated that at this post-
trial interview Pierce, for the first time,
stated that on on prior occasion had he
interpreted anything which Stender had done
or said as a threat. Stender delcared that
he had known prior to the conclusion of the
trial that Pierce no longer claimed that
Stender had threatened him, he would have
called Pierce as a witness on behalf of
defendant Justice.
Pierce refused to give either of
defendants a post-trial affidavit.
At an evidentiary hearing prior to
trial on the issue of the propriety of the
identification procedures, Jack Pierce
testified that he was an eyewitness to the
attack on Officer Davis. Approximately 30 to
45 minutes after the attack he was shown a
group of photographs. He recognized the
Pt
persons, but he refused to pick them out as
he did not want to become involved at that
time. He was released on parole on August 6,
1971, and on that date was again shown a set
of photographs. He identified defendants and
Muldrew. He also testified as to a conversa-
tion with attorney Stender during which he
alleged that Stender impliedly threatened
him. Both attorney Glenn and attorney
Stender cross-examined Pierce at length.
Pierce did not testify at the trial.
The trial court denied the motion
for new trial on the ground of newly disco-
vered evidence with the observation that
", . « Mr. Pierce's anticipated testimony
based upon his pretrial testimony is not the
type of evidence that can properly be
regarded as a basis for a motion for new
trial."
Penal Code section 1181, subdivision
8, provides that a new trial may be granted
"When new evidence is discovered material to
~64=
the defendant, and which he could not, with
reasonable diligence, have discovered and
produced at the trial. ..." To entitle a
party to a new trial on the ground of newly
discovered evidence it must appear that the
evidence, and not merely its materiality, be
newly discovered; that the evidence is not
merely cumulative; that a different result
must be probable on a retrial of the cause;
that the party could not with reasonable
diligence have discovered and produced it at
trial; and that these facts be shown by the
best evidence which the case admits. (People
v. McGarry, 42 Cal.2d 429, 433; People v.
Sutton, 73 Cal. 243, 247-248; People v.
Warren, 175 Cal.App.2d 233, 245.)
The claim of newly discovered evi-
dence warranting a new trial is looked upon
by the courts with distrust and disfavor,
and, unless a clear and unmistakeable abuse
of discretion is shown, the action of the
trial court will not be disturbed on appeal.
a
(People v. Williams, 57 Cal.2d 263, 270.)
It is apparent from the affidavits
of Glenn and Stender that they were aware
that Pierce was a potential witness. They
had attempted to interview him before trial
and they knew before the trial that Pierce
had testified at the pretrial evidentiary
hearing that defendants were among Officer
Davis' assailants. Counsel for both defen-
dants were aware of the testimony that Pierce
would give if called as a witness. Although
Glenn's declaration states that he could not
have discovered the evidence favorable to
Gibson because of Pierce's refusal to talk to
him, he did cross-examine Pierce at length at
the pretrial evidentiary hearing. With
respect to defendant Justice, the asserted
newly discovered evidence was known to
Stender, his attorney, prior to trial. What
he claims to be newly discovered is that
Pierce no longer claimed that he had been
threatened by Stender. We observe here that,
-66<
in connection with his motion for a new
trial, Stender stated that he and attorney
Glenn had considered calling Pierce as a wit-
ness on several occasions but did not do so
because of Pierce's allegations at the
retrial hearing that Stender had threatened
him.
The trial judge was justified,
moreover, in concluding that the testimony of
Pierce would be merely cumulative and that it
would not have rendered a different result on
retrial of the case. There is nothing to
indicate that Pierce would have varied his
testimony substantially from that given at
the pretrial hearing. The trial court was of
the opinion that there as nothing in the
declaration that gave any indication that
Pierce's testimony would be so favorable to
the defense that it could reasonably be
expected to change the result.
As respects the alleged misconduct
of the prosecution having to do with the
af Fe
alleged interference by investigator Packwood
as constituting newly discovered evidence,
the court was not furnished with any affida-
vit by Pierce that he had been interfered
with in the fashion alleged. It appears from
the record that the court had before it
(although not included on the record on
appeal) an affidavit by Pierce taken by the
Department of Corrections in which he denied
that anyone from that department had ordered
him not to talk.
There was, therefore, no abuse of
discretion in denying the motion for a new
trial on the grounds of newly discovered evi-
dence,
Misconduct of Jurors
Defendants contend that the trial
court erred in not granting a new trial on
grounds of jury misconduct in that members
of the jury conducted library research on
matters not presented in evidence. Two
jurors researched two areas of the case and
-68<
reported the results of their research to
their fellow jurors.2/
Juror Colin F. Grist admitted that
he consulted an encyclopedia in order to
discover how rare AB type blood is in the
general population and obtained the infor-
mation that it was a rare blood type. He
believed, but was not certain, that this was
done after the jury had finished balloting on
defendant Justice. He had some recollection,
but not certain, that he might have mentioned
to another juror that AB type blood was rare.
Jurors Chapman, Gauger, and Cox re-
called the statement. Of the nine jurors
polled, four recalled the atatensnts, and the
affidavits of these jurors indicate that the
5. This conduct was established by af-
fidavits filed to impeach their verdict on
the basis that the jury's verdict was im-
properly influenced by conduct consisting of
overt acts, which are objectively ascertain-
able, i.e., influence open to sight, hearing
and other senses and thus subject to cor-
roboration. (Evid. Code, § 1150; see
Peo xe Ys Hutchinson, supra, 71 Cal.2d 342,
CEE .)
|
ae
comment was a brief one and that it prompted
an admonition from other jurors that evidence
of the rarity of AB type blood was not prop-
erly in evidence.
In her original affidavit juror Mona
Gauger stated that during deliberations she
consulted a medical encyclopedia at the
request of her fellow jurors to determine the
effect on perception of the amount of
morphine given to prosecution witness Ivan
Kranzelic. Her research confirmed her belief
that the dosage given Kranzelic was relati-
vely small and would not have rendered him
Stuperous or completely unable to perceive
. events taking place around him. She related
this information to the other members of the
jury. |
In her second affidavit Gauger
further explained that during deliberations
concerning Kranzelic's testimony she com-
mented on the dosage of morphine given
Kranzelic and some members of the jury said
e100
that she "should be sure." She interpreted
this as a request to look up the information.
She recalled that at some point a juror com-
mented that since no evidence had been pro-
duced as to the effect of morphine that they
could not consider it.
Juror Chapman recalled Gauger's
statement and recalled that he and possibly
another juror stated that this information
was not evidence produced in court and that
therefore it could not be considered by them.
: The subject was then dropped. Juror Grist
recalled Gauger's comment about a morphine
dose but had no recollection of the specific
nature of the comment. Foreman Lubersky re-
called that Gauger had stated that she had
consulted a medical reference book and that
the amount of the drug administered was a
minimal dosage and that the effect was to
increase perception and imagination for a
couple of hours and give the patient a
felling of well-being. Gauger's remarks
aTie«
lasted no more than a minute. Juror Taylor
recalled that Gauger had said that she looked
something up in a book and said: "...
something to the effect that depending on a
man's weight that the dose given wouldn't
hurt his ability to see or hear." He
recalled that two jurors, one being Chapman,
commented that this was not in evidence and
that they should not be concerned with it.
Juror Cox recalled that Gauger said that the
dosage of morphine could have either dulled
or sharpened Kranzelic's powers of obser-
vation a little. Juror Storey stated that
Gauger had said that in some cases perception
would be heightened while in others the re-
cipient would be made drowsy. She recalled
that foreman Lubersky commented that this
should not be considered as it was not in
evidence and that she herself commented that
this information had no value or validity.
Juror Michael recalled a statement by Gauger
that morphine hinders the imagination and
~~,
and further recalled that Lubersky stated
that they could not consider this as evi-
dence. Juror O'Brien did not recall Gauger's
comment. Juror Mraz recalled that Gauger
stated that morphine might make a person more
alert and recalled Lubersky's admonition.
The jurors did not request that
Gauger reserach the subject. Furthermore,
the jurors received prompt admonitions that
the matter should not be considered as it was
not presented in evidence and the discussion
was very brief, lasting perhaps only a
minute,
The jury received no evidence in
court as to the rarity of AB type blood or
the effect of the dosage of morphine on
Kranzelic.
The trial judge found that the con-
duct of jurors Grist and Gauger constituted
misconduct, but determined, upon an applica-
tion of the test prescribed in People v.
Watson, 46 Cal.2d 818, 836 [cert. den., 335
a,
U.S. 846], that it was not reasonably prob-
able that a result more favorable to de-
fendants would have been reached in the ab-
sence of the misconduct. The trial judge, in
making his determination, declared that if he
were applying the federal test articulated in
Chapman v. California, 386, U.S. 18, he would
have been compelled to reach a different re-
sult. Chapman holds that where prejudicial
error occurs the judgment must be reversed
unless the reviewing court can declare a
belief that the error was harmless beyond a
reasonable doubt. (At p. 24.)
The conduct of the two jurors was
Clearly misconduct. The out-of-court recep-
tion of evidence is misconduct of a serious
nature. The People do not dispute that the
jurors acted improperly but urge that it con-
stituted harmless error under the Watson test
applied by the trial judge. Defendants con-
tend that the jurors' conduct constituted
error which is reversible per se. The trial
Tio
court specifically determined that the error
was not reversible per se.
Before proceeding to discuss the
legal issue presented it is necessary to
ascertain the importance of the two items of
evidence which were injected into the jury's
deliberations as the result of the miscon-
duct. Defendants assert that the rarity of
AB type blood was at the heart of the prose-
cution's case and point out that in his argu-
ment the prosecutor labeled it as Justice's
"calling card."
Evidence was received at trial that
Officer Davis' blood type was 0, that
Gibson's blood type is also type 0, while
Justice's blood type is AB. Evidence was
also received that AB type blood was found on
the weapon asserted to be the murder weapon,
On a pair of denim pants found in room 224,
On a roll of toilet paper taken from a fourth
floor trash can, on a white jacket taken from
the soiled linen hamper, and on Gibson's
oF$e
bedding.
Regarding the effect of morphine on
Kranzelic, there is no question but that
Kranzelic was a vital prosecution witness.
He had undergone surgery two days before the
events to which he testified occurred. On
July 21, 1971, he received three separate
shots of morphine from midnight up until
noon. No evidence was offered as to the
probable effect of Kranzelic's morphine
dosage on his perceptions but both sides drew
some inferences at trial.
The cases which hold the error re-
quires a reversal without regard to whether
the reviewing courts can declare that under
the state of the evidence the error is
hamrless are restricted to cases dealing with
the erroneous admission of confessions or in
cases in which the trial was fundamentally
unfair. (People v. Bostick, 62 Cal.2d 820,
824.) In other situations error which
constituted a denial of due process or a
~ =
violation of some other constitutional right
has been held not to be reversible per se be-
cause it was nonprejudicial. (People v.
Bostick, supra.) As observed in Chapman,
", . . there may be some constitutional
errors which in the setting of a particular
case are so unimportant and insignificant
that they may, consistent with the Federal
Constitution, be deemed harmless, not requir-
ing the automatic reversal of the
conviction." (386 U.S. at p. 22.)
The admission or exclusion of evi-
dence in violation of the common law and sta-
tutory rules usually treated as procedural
error which calls for a reversal of the judg-
ment only if a miscarriage of justice re-
sulted. (See Cal. Const., art. VI, § 13.)
It has also been held that illegally obtained
evidence does not constitute reversible error
per se. (People v. Parham, 50 Cal.2d 378,
384 [cert. den., 377 U.S. 945]; see People v.
Tarantino, 45 Cal.2d 590, 596.) In the
.
ote
instant case the reception by the jury of un=
authorized evidence was akin to the admission
of inadmissible evidence. Moreover, the un-
authorized reception by the jurors of new
evidence through their own efforts has been
held to be reversible error only when it
resulted in a miscarriage of justice and
hence, not reversible error per se, (See
People v. Tedesco, 1 Cal.2d 211, 221; People
v. Rowell, 133 Cal. 39, 41; People v.
Tugwell, 32 Cal.App. 520, 522-523; People v.
Yee King, 24 Cal.App. 509, 513; see also
People v. Terry, 2 Cal.3d 362, 397 [cert.
den., 406 U.S. 912]; People Vv. Lambright, 61
Cal.2d 482, 486.) Jury misconduct merely
raises a presumption of prejudice. (In re
Winchester, 53 Cal.2d 528, 534-535 [cert.
den., 363 U.S. 852].)
Defendant's reliance on Turner v.
Louisiana, 379 U.S. 466, Estes v. Texas, 381
U.S. 532, and Parker v. Gladden, 385 U.S.
363, is misplaced. In each of these cases
oFBw
the court found inherent or extrinsic pres-
sure in the particular conduct so as to de-
Prive the defendant of a fair trial.o/ The
particular misconduct in this case does not
rise to that level.
Adverting to the question whether
the error was subject to the Watson or the
Chapman test, we note the threshold require-
ment that we must determine whether the
6. In Turner, extreme prejudice was
found in the continual association in the
trial between the jurors and two deputy
sheriffs who were shepherding the jury and
who were also crucial witnesses in the case,
(379 U.S. 466, 472-473.)
In Estes, the televising of a criminal
trial was held to be inherently invalid as
infringing on the right of a fair trial
guaranteed by the Due Process Clause of the
Fourteenth Amendment. (381 U.S. 532,
536-552.)
In Parker, a bailiff assigned to shephard
a sequestered jury told one juror that de-
fendant was guilty and another that if there
was anthing wrong with finding defendant
guilty the Supreme Court would correct it.
This conduct was held to be violative of the
right to an impartial trial and the right to
be confronted by witnesses as guaranteed by
the Sixth and Fourteenth Amendments. (385
U.S. 363.)
-79-
error is one which may properly be charac-
terized as federal constitutional error. If
it is, the Chapman test applies. Defendants
contend that the jury's reception of evidence
out of court violates the confrontation
Clause of the Sixth Amendment and the right
to a trial by jury guaranteed by ‘that
amendment.
The People's reliance on People v.
Lambright, supra, 61 Cal.2d 482, and People
v. Castaldia, 51 Cal.2d 569 is not deter-
minative. In both cases the Watson test was
applied. Castaldia does not involve the un-
authorized reception of new evidence but the
giving of false answers on voir dire.
Lambright involved the refusal to permit the
jurors to be polled as to whether they had
read an article in a newspaper reporting that
the defendant had threatened to kill the vic-
tim. In any event, both cases were decided
Prior to Chapman.
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In People v. Dacy, 5 Cal.App.3d 216,
221-222, a juror remarked to some of the
other jurors during a break in their
deliberations that the defendant had an
arrest record. In that case the trial judge
refused to grant a mistrial on the basis that
he had instructed the jury before it retired
that it was not to consider anything outside
the evidence, and that, when the jurors were
queried about the incident after they had
reached a verdict on the charges but prior to
deliberating on the penalty phase, they
stated to the judge that they had heeded the
admonition and would continue to do so. The
reviewing court observed that if it could be
assumed that the incident could be regarded
as procedural error it would be regarded as
nonprejudicial error which did not result in
a miscarriage of justice under California
Constitution article VI, section 13 (the
Watson test). The court also observed
that the evidence against defendant was
tite
"overwhelming" and it is “inconceivable” that
the jury could have disbelieved it. (At
Pp. 222,)/
In People v. Lessard, 58 Cal.2d 447,
454, the defendant contended that the jurors
were guilty of misconduct in receiving evi-
dence out-of-court. An affidavit of a juror
who was excused because Of illness before the
matter was submitted to the jury stated that
", . « another juror read an inaccurate
account of the trial in a newspaper,
discussed the same with other jurors and
based her premature opinion of defendant's
guilt upon such newspaper article." The
affiant also alleged the other jurors formed
premature opinions of the defendant's guilt.
The court stated that "There can be
no doubt that the reading by jurors of news-
paper accounts of a trial in which they are
7. No petition for a hearing in the
Supreme Court was filed in Dacy.
=S2<
engaged amounts to a violation of their duty
and obligation and if such newspaper accounts
would be at all likely to influence jurors in
the performance of duty, the act would con-
stitute a ground for a motion for a new
trial.” (At p. 454). After noting that
jurors in a criminal action subscribe to an
oath to render a true verdict according to
the evidence (Code Civ. Proc., § 604), the
.court stated: "Under the oath which they
take they néuhae without a violation thereof
receive impressions from any other source,
However, the crucial question is whether it
can be proved as a fact or may be presumed as
a conclusion of law that the verdict of the
jury may have been influenced by information
Or impressions received from sources outside
of the evidence in the case." (At p. 454.)
The reviewing court in Lessard was
satisfied that the trial judge had not erred
in denying the motion for new trial and in
-83-
refusing to indulge the assumption that the
jurors violated their oaths and disregarded
his admonitions given throughout the trial.
It considered the affidavit of the foreman of
the jury in which he stated that he did not
hear any jurors discuss the guilt of the
defendant before deliberations and that he
did not hear any expressions of prejudice,
It is apparent that Lessard did not
consider the alleged misconduct of the jurors
in the context of the harmless error rule, or
whether error of a constitutional dimension
was involved, but that it treated the ques-
tion presented as one involving whether the
trial judge abused his discretion. It is
obvious, however, that the court did not con-
sider the misconduct asserted to constitute
prejudicial error per se.
Defendants acknowledge that all
instances of jury misconduct do not rise to
the level of federal constitutional error.
-84-
They place their reliance, however, on United
States v. Howard (5th Cir. 1975) 506 F.2d
865, and Jackson v. Hutto (8th Cir. 1975) 508
F.2d 890. In Howard a juror filed an affi-
davit in support of a motion to stay execu-
tion and grant a new trial in which he stated
that during the jury's deliberations one
juror had stated that the defendant had been
in trouble a few times and that this fact was
used to pressure the affiant and another
juror into aligning with the rest of the jury
on a guilty verdict. The federal district
court denied the motion without a hearing.
The appellate court vacated the lower court's
Order and remanded the cause for an inquiry
into the accuracy of the affidavit and to
consider whether there was any reasonable
possibility of prejudice to the defendant.
Howard does not hold that the misconduct com-
Plained of is of federal constitutional
dimension but only that the trial court
-85-
consider the affidavit and any prejudice under
the Chapman rule which the district court, as
a federal court, was required to follow
irrespective of whether the misconduct was of
federal constitutional dimension.
In Hutto the trial judge, in the
absence of defendant, orally communicated
with the jury on several occasions during the
jury's deliberations. The reviewing court
found that defendant's contention raised an
issue of constitutional significance but pro-
ceeded to find that the record disclosed the
absence of prejudice.
Hutto does not involve the reception
of unauthorized new evidence by jurors but
rather involves reception of oral communica-
tions with the jury on several occasions
during jury deliberations. The communica-
tions consisted of response to inquiries on
the law and the rereading of instructions.
These communications were made in the absence
aiGe
of the defendant. The reference in the opin-
ion in Hutto to the issue of constitutional
significance does not relate to the communi-
cations made by the judge to the jury per se
but to the fact that it was made in the
absence of the defendant and that the consti-
tutional right infringed upon was the defen-
dant's right to be present at every stage of
his trial. (508 F.2d at p. 891.)
In view of the foregoin
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