California Court of Appeal Mar 17, 2017 No. E064121Published
Filed 3/17/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E064121
v. (Super.Ct.No. RIF1300143)
LAMONTE TYREE RUSSELL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.
Affirmed.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr.,
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts III, IV, and VI.
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Randall D. Einhorn, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff
and Respondent.
I
INTRODUCTION
Defendant Lamonte Tyree Russell and codefendants, Ronald Edward Butterfield
and Eric Lamichael Deon Williams, were charged with committing attempted murder
Cal.3d 419, 443; People v. Taylor (1986) 178 Cal.App.3d 217, 225.) After the infield
identification lineups, during which witnesses identified Williams but not defendant,
defendant’s handcuffs were removed. Defendant was free to leave at this point but
voluntarily agreed to go to the police station to be questioned. Defendant was not
handcuffed when he was transported to the station. During his interview, he was also not
handcuffed.
Although the interview room was locked when defendant was left alone in the
room, this was for safety purposes. As explained by Rowe, otherwise defendant would
have had free, unsupervised access to the entire police station, since no one was present
in the station while Rowe and Brandt were interviewing Williams. Furthermore,
defendant could have knocked on his interview room wall or door to get the officers’
attention in the event he wanted to leave or had a particular need.
Rowe’s statement during defendant’s interview, telling defendant that he was not
accused of anything, further supports the determination defendant was not in custody.
Rowe explained that defendant was being interviewed only for the purpose of finding out
what happened during the assault. Even if Rowe actually questioned defendant as a
suspect, rather than merely as a witness, Miranda warnings were not required simply
“because the questioned person is one whom the police suspect.” (Oregon v. Mathiason
(1977) 429 U.S. 492, 495.) “While the nature of the police questioning is relevant to the
custody question, police expressions of suspicion, with no other evidence of a restraint on
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the person’s freedom of movement, are not necessarily sufficient to convert voluntary
presence at an interview into custody.” (People v. Moore (2011) 51 Cal.4th 386, 402.)
Here, there was no other evidence of restraint and the interviewing officers’
comments and questions were not overly aggressive, confrontational, threatening,
intimidating, or accusatory. (Aguilera, supra, 51 Cal.App.4th at p. 1164.) During
defendant’s interview, the interviewing officers were cordial and courteous. Rowe
became somewhat confrontational on a few occasions, such as when Rowe told defendant
he believed defendant was not being totally honest, was giving evasive responses, and
was omitting important information. Such comments and questioning as whole, however,
did not convert defendant’s voluntary presence at his interview into a custodial
interrogation. In addition, the officer-witness ratio was only two officers (Rowe and
Brandt) to one interviewee during the first part of the interview and just one on one
during the second part of defendant’s interview.
Although Rowe did not tell defendant he was free to leave, this was apparent from
the removal of his handcuffs, Rowe asking defendant if he would voluntarily go to the
station to answer questions, defendant remaining unhandcuffed throughout the interview,
and Rowe repeatedly telling defendant he was not under arrest. Rowe also told defendant
he understood defendant was not physically involved and believed defendant had not hurt
anyone. Rowe further explained to defendant that he did not read defendant his Miranda
rights because Rowe was not accusing him of doing anything. Rather, Rowe was merely
trying to find out what had happened.
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The duration of defendant’s detention at the police station (under five hours) was
not excessive. Defendant arrived at the police station at around 6:40 a.m., not wearing
handcuffs or restrained in any way. He was placed in an interview room, unrestrained.
After about an hour and a half, Rowe arrived at the station to interview defendant. At
around 8:00 a.m. Rowe and Brandt interviewed defendant for 50 minutes. Defendant was
then left alone in the interview room for about two hours, until 10:41 a.m., while Rowe
and Brandt interviewed Williams and defendant slept on the floor. Thereafter the second
part of defendant’s interview commenced. The interview lasted about an additional 20
minutes. Then defendant was released because Rowe believed he did not have sufficient
evidence to arrest defendant.
Defendant maintains the trial court abused its discretion by not considering the
video recording of the second part of defendant’s interview, which was conducted after
Rowe interviewed Williams. Defendant argues that, even if he was not in custody for
purposes of Miranda during the first part of his interview, he was in custody during the
second part. The trial court initially stated after a recess in the motion hearing, that the
court had just watched videotapes of both the first and second parts of defendant’s
interview. Defendant argues the court later stated it did not watch the videotape of the
second part of defendant’s interview. But the court stated this somewhat equivocally
three weeks after the hearing on the motion to suppress during the trial. The court
remarked, when discussing playing the interview videotapes for the jury, that the court
recalled listening to the first segment but not the second part because it was not at issue.
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The trial court’s statement acknowledging it had just watched the video of both
parts of defendant’s interview is more credible than the court’s later statement to the
contrary. The former statement was made right after the court watched the interview
videotapes. Furthermore, there were transcripts of the interview videotapes, which the
trial court may have alternatively reviewed before ruling on defendant’s motion to
suppress. Under such circumstances, we cannot assume, as defendant does, that the trial
court did not consider the second part of defendant’s interview when ruling on
defendant’s motion to suppress.
Furthermore, even if the trial court did not review the videotape or transcript of the
second part of defendant’s interview, failure to do so does not constitute prejudicial error.
The videotapes and transcripts are part of the record on appeal and, when an interview is
recorded and the surrounding facts are undisputed, the issue is subject to independent
review. (People v. Linton (2013) 56 Cal.4th 1146, 1177.) Based on the totality of the
evidence before this court, we conclude there was substantial evidence that defendant
was not in custody when he was interviewed by the police. Therefore the police were not
required to advise defendant of his Miranda rights before or during his interview.
Accordingly, the trial court did not err in denying defendant’s motion to suppress
statements defendant made during his police interview.
V
DISCLOSURE OF JUROR IDENTIFYING INFORMATION
Defendant contends the trial court violated his due process rights by refusing to
disclose TJ11’s identifying information. Defendant argues TJ11 did not protest
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disclosure and therefore the trial court was required to release her identifying
information. We disagree.
A. Procedural Background
Defendant filed a posttrial motion to disclose juror identifying information under
Code of Civil Procedure sections 206 and 237 (disclosure motion). Defendant requested
the information for the purpose of investigating whether to bring a motion for new trial
based upon juror misconduct. Defense counsel’s amended supporting declaration stated
that after the trial, he spoke to TJ11 in the courthouse hallway. TJ11 stated she had voted
not guilty to count 1, and guilty to counts 2, 3, and 4 because the foreperson and other
jurors led her to believe the jury must be unanimous only as to count 1. TJ11 further told
defense counsel that on the last day of deliberations, TJ6 “brought in a sheet full of
information he had prepared during the evening recess, purportedly consisting of matters
he had researched on the internet, and which included Biblical quotations he shared with
Juror #11 in order to persuade her.”
During the initial hearing on defendant’s disclosure motion, the prosecutor agreed,
and the trial court found, that defendant had met his burden of making a prima facie
showing of good cause for disclosure of the jurors’ identifying information. The trial
court agreed to draft a letter notifying the jurors that counsel was requesting release of
their identifying information. The court told counsel they would have an opportunity to
comment on the letter’s contents and could make suggestions on changes to the letter.
The trial court sent the jurors a letter dated July 8, 2014, which notified the jurors
that counsel had requested their personal juror contact information, that a hearing on the
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request was scheduled for July 25, 2014, and that the jurors were requested to notify the
court at the hearing or beforehand by phone or letter as to whether they objected or
agreed to the granting of the disclosure request. The letter concluded by stating, “If we
do not hear from you within 10 days of receipt of this letter, we will try to contact you by
phone before the hearing.” The letter did not state that if the court did not receive a
response, it would assume the juror did not object to disclosure.
During the hearing on July 25, 2016, the trial court noted that one of the jurors,
Juror No. 10, was present at the hearing and all of the other jurors, with the exception of
TJ11, had responded. Juror No. 10 told the court he did not have any objection to
speaking with counsel regarding the trial. After Juror No. 10 left the courtroom, the court
stated that the only other juror who consented to speaking to counsel was Juror No. 2.
All the other jurors, except for TJ11, sent the court written responses or telephonically
told the court they did not want to be contacted. The court stated the court clerk called
TJ11 the day before the hearing and the morning of the hearing and left messages but
TJ11 did not respond.
Defense counsel argued TJ11’s nonresponsiveness meant she did not object to
releasing her identifying information and therefore it should be released. The trial court
disagreed but deferred ruling on whether to release TJ11’s information until the
continued sentencing hearing on September 12, 2016. The court said that, in the
meantime, the court clerk would continue to try to contact TJ11 by phone. The court
stated that it believed that if a juror had not contacted the court in response to the court’s
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letter, the juror did not want to be contacted, but the court would consider any authority
to the contrary.
At the hearing on September 12, 2015, the court advised the parties it still had not
heard from TJ11. TJ11 was called at least five times. The prosecutor argued that TJ11’s
nonresponsiveness should be construed as an objection to releasing the juror’s identifying
information. The prosecutor stated that counsel spoke to the two jurors, Juror No. 2 and
Juror No. 10, who agreed to be contacted, and those jurors did not corroborate TJ11’s
statements made to defense counsel.
After hearing oral argument, the trial court noted that all the jurors, except TJ11,
had responded by letter or phone. Some of the jurors had received followup calls. The
court noted: “I think that the fact that (TJ11) has certainly received notice from the
Court, the letter was not returned – and while no phone messages have been returned, it’s
clear that her phone is still operational. No one has called back and said it’s a wrong
number. So clearly she’s gotten our requests either by letter or by phone or both. [¶]
And the fact that she is refusing to respond leads me to no other conclusion than that she
is desirous of not speaking with us, which certainly is her right under the law.”
The court added that the two jurors who were contacted did not corroborate any of
the comments that TJ11 made in the hallway. There was no corroboration that Juror No.
6 or any other juror said during deliberations that the verdicts did not have to be
unanimous. There also was no evidence of any outside influence, such as Juror No. 6
bringing to deliberations Biblical references. The two jurors who spoke to counsel
denied that any of those discussions occurred during the juror deliberations. The trial
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court therefore found there was no credible evidence that any misconduct occurred during
the deliberations. The court further found there was not a sufficient basis to subpoena
TJ11. In response to the trial court’s findings, defense counsel stated he would not bring
a motion for new trial.
B. Applicable Law
After a jury convicts a defendant, defense counsel may attempt to contact jurors to
discuss the case with them in an effort to determine whether there was juror misconduct.
Jurors often wish to keep their contact information confidential. “‘Discovery of juror
names, addresses and telephone numbers is a sensitive issue which involves significant,
competing public-policy interests.’” (People v. Tuggles (2009) 178 Cal.App.4th 1106,
1147 (Tuggles), quoting People v. Rhodes (1989) 212 Cal.App.3d 541, 548.) “Trial
courts have broad discretion to manage these competing interests by allowing, limiting,
or denying access to jurors’ contact information. [Citations.] The Legislature has
supplemented the protection of jurors’ personal information by enacting Code of Civil
Procedure section 206.” (Tuggles, at pp. 1147-1148.)
Under Code of Civil Procedure section 206, jurors have the prerogative of
agreeing or declining to discuss the case after trial with the parties. “Nothing in section
206 compels a reluctant juror to speak with any of the parties, their counsel, or
investigators. ‘If any juror refuses to consent, that is the end of the matter.’” (Tuggles,
supra, 178 Cal.App.4th at p. 1148, quoting Townsel v. Superior Court (1999) 20 Cal.4th
1084, 1097.) If counsel wish to speak to jurors and are unable to locate them, counsel
may file a petition under Code of Civil Procedure section 237, seeking access to jurors’
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contact information. Under Code of Civil Procedure section 237, even if there is good
cause for disclosure, the petitioner is not automatically entitled to jurors’ contact
information. (Tuggles, at p. 1149.) Sections 237 and 206 were enacted “to balance the
interests of providing access to records of juror identifying information for a particular,
identifiable purpose against the interests in protecting the jurors’ privacy, safety, and
well-being, as well as the interest in maintaining public confidence and willingness to
participate in the jury system.” (§ 206, Stats. 1995, ch. 964, § 1; see also Townsel, at p.
1091.)
If the trial court sets a hearing on a petition for disclosure of jurors’ contact
information under Code of Civil Procedure section 237, jurors are entitled to 20 days to
object before the hearing. (Code Civ. Proc., § 237, subd. (c).) Jurors may object by
telephone or in writing, rather than appearing at the hearing. (Tuggles, supra, 178
Cal.App.4th at p. 1149.) “Regardless of how a juror might object to the release of his or
her information, an objection precludes disclosure to the person requesting the
information. [Citations.] As the California Supreme Court has explained, ‘A criminal
defendant has neither a guaranty of posttrial access to jurors nor a right to question them
about their guilt or penalty verdict.’ [Citations.]” (Id. at p. 1149.) “Nothing in Code of
Civil Procedure section 206 or 237 dilutes the trial court’s inherent power to shield jurors
from unwanted contact by parties or their counsel.” (Id. at p. 1150; Townsel, supra, 20
Cal.4th at p. 1096.)
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C. Discussion
In the instant case, the trial court heard and denied defendant’s request for
disclosure of TJ11’s personal contact information. Defendant contends the trial court
erred in denying the request because TJ11 did not “protest” disclosure. Defendant argues
TJ11’s nonresponsiveness was not a protest within the meaning of Code of Civil
Procedure section 237. The People argue to the contrary that TJ11’s nonresponsiveness
qualified as a protest.
Code of Civil Procedure section 237 does not define the term “protest.” Section
237, subdivision (c) states various ways in which a juror may protest a request for
disclosure, including appearing in person, in writing, by telephone, or by counsel. But
subdivision (c) does not limit a juror’s protest to these specified methods. Rather, the
statutory language suggests the Legislature intended to accommodate jurors in conveying
their objections to disclosure of their personal contact information.
Subdivision (c) of Code of Civil Procedure section 237 therefore did not preclude
the trial court from finding in the instant case, based on the totality of the circumstances,
that TJ11’s nonresponsiveness constituted a “protest” or objection to disclosure under
section 237. The disclosure request, notice letter the trial court sent the jurors did not
inform TJ11 that if she did not respond to the letter, the court would conclude TJ11
agreed to disclosure and would release her personal contact information to defendant. In
addition, after TJ11 failed to respond to the court’s letter, the court made at least five
follow-up calls over a period of a month and a half, leaving messages requesting TJ11 to
notify the court regarding whether she wanted her identifying information released to
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counsel. TJ11 did not return any of the calls and did not appear in court or contact the
court regarding the matter. The trial court continued the hearing on defendant’s
disclosure request to allow the court clerk to continue attempting to contact TJ11, the
only juror who had not responded. The court also verified that the court’s notice letter
was sent to TJ11’s correct address and that calls were made to TJ11’s current phone
number.
Under these circumstances, the trial court reasonably found that TJ11’s
nonresponsiveness reflected that TJII objected to disclosure of her personal contact
information and was unwilling to be contacted by defendant. Defendant argues that
TJ11’s silence is insufficient to constitute a “protest” under Code of Civil Procedure
section 237, subdivision (d). Defendant’s reliance on subdivision (d) for this proposition
is misplaced. Subdivision (d) states in part that, “[a]fter the hearing, the records shall be
made available as requested in the petition, unless a former juror’s protest to the granting
of the petition is sustained.” This language merely requires the trial court to release a
juror’s personal contact information, unless the trial court sustains a juror’s “protest.”
Subdivision (d) is not dispositive of the key issue here of whether TJ11’s
nonresponsiveness can be construed as a protest or objection to disclosure under section
237.
Subdivision (d) of Code of Civil Procedure section 237 further states that “[t]he
court shall sustain the protest of the former juror if, in the discretion of the court, the
petitioner fails to show good cause, the record establishes the presence of a compelling
interest against disclosure as defined in subdivision (b), or the juror is unwilling to be
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contacted by the petitioner.” Here, the trial court reasonably found under the totality of
the circumstances that TJ11’s nonresponsiveness constituted a passive objection or
“protest” to disclosure of her personal contact information and an unwillingness to be
contacted by defendant.
We reject defendant’s contention that in every instance a juror’s
nonresponsiveness is not a “protest” under Code of Civil Procedure section 237, and
therefore the court must release the juror’s personal contact information to the defendant.
We also reject the People’s contrary proposition that a juror’s nonresponsiveness must
always be construed as a protest. Whether a juror’s nonresponsiveness supports a finding
that the juror protests or objects to disclosure of personal contact information under
section 237, is a factual determination. In making such a determination, the trial court
must consider the totality of the circumstances and this court must give deference to the
trial court’s findings if supported by the evidence. (People v. Ferraez (2003) 112
Cal.App.4th 925, 931.) Here, there was sufficient evidence to support the trial court’s
reasonable finding that TJ11’s nonresponsiveness demonstrated she objected to
disclosure of her personal contact information and did not want to have any contact with
defendant. The trial court therefore did not abuse its discretion in denying defendant’s
request for the release of TJ11’s personal contact information.
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VI
COMPELLING TJ11 TO PROVIDE
ADDITIONAL INFORMATION
Defendant contends the trial court abused its discretion by not subpoenaing TJ11
to testify regarding her verdicts and serious misconduct she reported to defense counsel.
We disagree.
After the trial court denied defendant’s request to release TJ11’s identifying
information, the court discussed whether to subpoena TJ11 regarding juror misconduct
that TJ11 had reported to defense counsel. The court concluded there were insufficient
grounds for subpoenaing TJ11 because there was no credible evidence of any juror
misconduct.
“When allegations of juror misconduct made in a criminal trial raise a presumption
of prejudice, the court is not limited, as it would be in a civil case, to consideration of
evidence presented by affidavit or declaration to resolve whether a new trial motion
should be granted. The court may conduct an evidentiary hearing, at which jurors may
testify, to determine the truth of the allegations if the court concludes this is necessary to
resolve material, disputed issues of fact.” (People v. Hayes (1999) 21 Cal.4th 1211, 1255
(Hayes).) “The hearing should not be used as a ‘fishing expedition’ to search for possible
misconduct, but should be held only when the defense has come forward with evidence
demonstrating a strong possibility that prejudicial misconduct has occurred.” (People v.
Hedgecock (1990) 51 Cal.3d 395, 419 (Hedgecock).)
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Here, the trial court did not abuse its discretion in not subpoenaing TJ11 because
there was insufficient evidence “demonstrating a strong possibility that prejudicial
misconduct has occurred.” (Hedgecock, supra, 51 Cal.3d at p. 419.) The only evidence
submitted by defendant to show juror misconduct was defense counsel’s declaration
stating his conversation with TJ11 in the hallway, during which TJ11 reported what other
jurors had said during deliberations. These statements in defense counsel’s declaration
constitute inadmissible double hearsay under Evidence Code section 1200. The
statements consist of defense counsel stating what TJ11 had told him that other jurors had
said and done during jury deliberations. This inadmissible double hearsay is insufficient
to trigger the court’s duty to subpoena TJ11 to testify regarding juror misconduct.
(Hayes, supra, 21 Cal.4th at p. 1255.)
Furthermore, the double hearsay contained in defense counsel’s declaration is
inadmissible under Evidence code section 1150, subdivision (a), which provides: “Upon
an inquiry as to the validity of a verdict, any otherwise admissible evidence may be
received as to statements made, or conduct, conditions, or events occurring, either within
or without the jury room, of such a character as is likely to have influenced the verdict
improperly. No evidence is admissible to show the effect of such statement, conduct,
condition, or event upon a juror either in influencing him to assent to or dissent from the
verdict or concerning the mental processes by which it was determined.” (Italics added.)
In other words, “when a juror in the course of deliberations gives the reasons for his or
her vote, the words are simply a verbal reflection of the juror’s mental processes.
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Consideration of such a statement as evidence of those processes is barred by Evidence
Code section 1150.” (Hedgecock, supra, 51 Cal.3d at p. 419.)
In addition, juror comments made during the deliberations regarding verdict
unanimity do not constitute juror misconduct but rather, at most, indicate confusion or
misunderstanding of the law. In the instant case, the court properly instructed the jury on
unanimity. The court instructed the jury: “Your verdict on each count and any special
findings must be unanimous. This means that, to return a verdict, all of you must agree
on it.” (CALCRIM No. 3550.) The court also properly instructed the jury regarding
unanimity as to the theories of aiding and abetting, and conspiracy. (CALCRIM Nos.
409, 416.) It is presumed that the jury understood and followed the trial court’s
instructions and performed its duty properly. (People v. Jackson (2014) 58 Cal.4th 724,
767.) Defendant did not provide the trial court with any admissible evidence to the
contrary.
In addition to there being no admissible evidence of juror misconduct, there was
evidence supporting a reasonable finding that no juror misconduct had occurred. The
trial court polled the jury and each of the jurors individually stated that the verdicts as to
each count reflected their own verdicts. This demonstrated that the verdicts were
unanimous. Additional evidence refuting TJ11’s reported claim of misconduct included
statements by two jurors, Juror No. 2 and Juror No. 10, who informed the court that the
juror misconduct TJ11 had reported did not occur.
Where there was no admissible evidence establishing juror misconduct, and there
was admissible evidence to the contrary, the trial court did not abuse its discretion in not
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compelling TJ11 to testify. The court was not required to subpoena TJ11 because the
defense did not come forward with admissible evidence “demonstrating a strong
possibility that prejudicial misconduct has occurred.” (Hedgecock, supra, 51 Cal. 3d at p.
419.)
VII
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
CODRINGTON J.
We concur:
MILLER Acting P. J.
SLOUGH J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's jury verdict was unanimous because the juror's initial negative response was clarified as a misunderstanding, and that the defendant was not in custody during his police interview, thus rendering Miranda warnings unnecessary.
Issues
Whether the trial court erred in finding a unanimous jury verdict after a juror initially responded 'no' during polling.
Whether the defendant was in custody during his police interview, thereby requiring Miranda warnings.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“‘there is no verdict absent unanimity in the oral declaration.’”
“The trial court reasonably concluded TJ11’s “yes” response following the court’s followup inquiry confirmed that defendant’s guilty verdicts to counts 2, 3, and 4 were TJ11’s individual verdicts.”
“Miranda warnings were not required before or during defendant’s police interrogation because defendant was not in custody at the time of the interrogation.”