People v. Maldonado

DEVINE, J.

Appellant was convicted of sodomy and lewd acts committed against a 12-year-old boy. The defense was general denial and alibi. No contention is made that the evidence is insufficient to sustain the judgment. The

[924]

single ground for appeal is the claim that there was misconduct on the part of the jurors and that it was an abuse of discretion for the trial court to deny appellant’s motion for new trial.

First Episode of Claimed Misconduct

Appellant’s grandmother, who was a witness for him at the trial, testified, on hearing of the motion for new trial, that during a recess of the trial, she heard a juror, the one who later became foreman, say to another man, “they going to give about two or three years.” She thereupon accosted the men, called them liars and said, “what two or three years, why. He is innocent.” The bailiff, who saw the lady speaking but did not hear what she said, except the word “liar,” stopped her. He testified at first that she was addressing jurors, but later, that he did not recognize the persons addressed as having been jurors. The lady was asked if she heard her grandson referred to by name, and she said no, but it was his jury, he was the only one in court, and “If it wasn’t him, they didn’t tell me it is not him. ”

She testified (there was no objection to this, although it was hearsay) that a 15-year-old boy, who had also been a defense witness, had told her that he had heard the deputy district attorney say to the jurors, “I am going to pin him, see.”

The boy denied that he had heard the deputy district attorney say this, denied that he, the boy, had said so to appellant's grandmother, and said that he had not seen the deputy district attorney talk to any juror, or any juror talk to. the deputy; but he did see and hear what is related about the second episode, below.

The foreman of the jury testified that he could not recall any incident involving the grandmother except that after the trial she broke down and was restrained by the bailiff from approaching the jurors as they filed out. He testified he knew absolutely nothing about the incident which the grandmother had testified about, did not recall her approaching him, saying anything, shouting “liar,” and never noticed any outburst from the lady in the hallway. The court reporter testified that she noticed a commotion in the hall as she was returning to the courtroom and saw the bailiff talking to the grandmother.