California Court of Appeal Apr 18, 2013 No. D061801Unpublished
Filed 4/18/13 P. v. Smith CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061801
Plaintiff and Respondent,
v. (Super. Ct. No. SCD219244)
ANDRE DELOINE SMITH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Desiree A.
Bruce-Lyle, Judge. Affirmed.
The issue in this case is whether the trial court abused its discretion, on remand
from an earlier appeal, by denying defendant an evidentiary hearing on his motion for a
new trial based on juror misconduct. We find no abuse of discretion and accordingly,
affirm the order.
BACKGROUND1
A jury convicted Andre Deloine Smith of carrying a concealed dirk or dagger.
(Former Pen. Code, § 12020, subd. (a)(4).) The evidence showed that on the evening of
February 28, 2009, a police officer was investigating a matter and Smith aggressively
demanded the officer's badge number. Smith threw his hands up in the air and he had
nothing in his hands. The officer ordered Smith to stay back at least twice, but Smith
continued to walk toward the officer. After receiving a final warning to stay back, Smith
responded with an obscenity, while placing his left hand at his side. The officer saw
Smith "fumbling his hand around" near his waistband and almost immediately thereafter,
the officer heard a "loud clank" on the ground. The officer saw a knife with a blade that
was approximately three and a half inches long and Smith offered, " 'Yeah. You're right,
Officer. I dropped the knife. You got me.' " Smith did not testify at trial.
After the jury was released, Smith filed a petition to unseal juror identifying
information in an attempt to obtain juror affidavits to support a motion for new trial based
on juror misconduct. (Code Civ. Proc., § 237, subd. (b).) The court denied the petition.
The court suspended imposition of sentence for three years and placed Smith on
summary probation.
Smith appealed, contending the trial court abused its discretion by denying his
petition. This court agreed, finding good cause for the release of the juror identifying
information. In support of the motion, Smith's counsel filed a declaration that stated
1 For convenience, we recite facts from the earlier appeal in this case. (People v. Smith (May 11, 2011, D056551) [nonpub. opn.].) 2
counsel for both sides had met with Juror No. 10 after trial, and Juror No. 10 revealed
that the "entire jury panel" based its conviction on Smith's failure to testify. We
concluded Juror No. 10's statement "clearly suggests the possibility that one or more
jurors discussed Smith's failure to testify during deliberations," and thus the
"statement . . . provides a basis for permitting Smith to investigate whether the jury in
fact discussed the improper subject of Smith's failure to testify. . . . If the jury did in fact
discuss Smith's failure to testify, evidence of such a discussion would be admissible to
impeach the verdict, pursuant to Evidence Code section 1150." We conditionally vacated
the judgment and ordered a limited remand. We directed the trial court to disclose juror
identifying information to Smith's counsel and depending upon the results of counsel's
investigation and upon his subsequent motions (if any), to take such further action as may
be necessary.
On remand, the trial court released identifying information on jurors, including
Juror No. 12.2 After counsel's investigation, Smith filed a motion for a new trial based
on jury misconduct. The motion was not supported by any sworn juror affidavit. Rather,
Smith presented a statement by counsel's investigator, to the effect that he had
interviewed Juror No. 12, and Juror No. 12 stated he did not have full recall of the
deliberations, but he did recall that the jury had concerns that Smith did not testify, did
not defend himself, and did not talk about what happened. Juror No. 12, however, denied
that the jury based its decision on Smith's silence.
2 The parties agree Juror No. 12 is at issue in this appeal, not Juror No. 10. 3
The prosecution opposed the motion, arguing the investigator's statement was
inadmissible hearsay, and a sworn juror affidavit is a prerequisite to an evidentiary
hearing on the issue of juror misconduct. In reply, Smith presented a declaration by the
investigator, which reiterated the information in his statement. The prosecution also
objected to the declaration as inadmissible hearsay.
At a hearing, Smith's counsel represented she was unable to submit a sworn
affidavit from Juror No. 12, because after talking with the investigator and being
presented with a proposed affidavit, he refused to sign it. Counsel advised the court as
follows: Juror No. 12 "asked if I could e-mail him the declaration before he signed it. I
said that's fine. And he was concerned. His wife is a lawyer. And I guess he was
concerned that he might be facing charges. I did make it clear he is not facing any
charges. That's not what is going on. [¶] And I sent him a declaration that I had written
up, essentially what the court has in front of [it] . . . . And [Juror No. 12] e-mailed me
back. And he saida long list, basically backtracked on every statement that he made.
He said that he felt that his statements were taken out of context. He felt that
modifications needed to be made. He asked me to delete certain portions and to send it to
him again." (Italics added.)
Counsel added, "I deleted those portions. I sent it to [Juror No. 12] again. [¶] He
responded that he didn't want to sign anything and that he would rather just come into
court and testify in his own words. [¶] I did subpoena him to be here today. He was
outside the door at 1:30 when I was here earlier. His wife was here. I believe that he is
still out there, though I didn't check as I was trying to get back into this court as soon as 4
possible. [¶] So that is why I submitted a declaration on behalf of my investigator."
Counsel conceded that the modified declaration she sent to Juror No. 12 "really didn't say
much at all, because . . . he had indicated he wasn't willing to sign much."
The court disallowed the investigator's declaration as inadmissible hearsay. The
court found that a sworn juror affidavit was required to make a prima facie case for an
evidentiary hearing and thus it denied Smith a hearing. It also denied his motion for a
new trial. The court reinstated the original judgment.
DISCUSSION
Smith does not dispute that the investigator's declaration was inadmissible
hearsay. It is settled that " 'a jury verdict may not be impeached by hearsay affidavits.' "
(People v. Williams (1988) 45 Cal.3d 1268, 1318-1319; People v. Avila (2006) 38 Cal.4th
491, 605.)
Rather, Smith contends that when, as here, a juror is available to give live
testimony in lieu of a sworn affidavit, an affidavit is not a prerequisite of an evidentiary
hearing. " 'We review for abuse of discretion the trial court's denial of defendant's
postverdict request for an evidentiary hearing into allegations of jury misconduct.' "
(People v. Avila, supra, 38 Cal.4th at p. 604.)
In People v. Hedgecock (1990) 51 Cal.3d 395 (Hedgecock), the California
Supreme Court held "it is within the discretion of a trial court to conduct an evidentiary
hearing to determine the truth or falsity of allegations of jury misconduct, and to permit
the parties to call jurors to testify at such a hearing. This does not mean, however, that a
trial court must hold an evidentiary hearing in every instance of alleged jury misconduct.
5
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. Even with
such a showing, an evidentiary hearing will generally be unnecessary unless the parties'
evidence presents a material conflict that can only be resolved at such a hearing." (Id. at
p. 419, fn. omitted.)
In Hedgecock, the defendant's motion for a new trial was supported by sworn
affidavits indicating juror misconduct. The prosecution submitted counter-affidavits
denying any juror misconduct. The high court held that under that circumstance, the trial
court abused its discretion by finding it was unauthorized to hold an evidentiary hearing.
(Hedgecock, supra, 51 Cal.3d at pp. 411-415.)
Here, the trial court relied on People v. Cox (1991) 53 Cal.3d 618 (Cox). In Cox, a
juror declined to sign under penalty of perjury a declaration that ostensibly included
statements she made to a defense investigator. The high court "declin[ed] to extend the
holding in Hedgecock to situations in which the defendant merely seeks to place unsworn
statements under oath by calling upon reluctant jurors to reiterate those statements from
the witness stand." (Cox, at p. 698.) Cox explains: "First, we find no constitutional,
statutory, or decisional imperative supporting such an extension. A criminal defendant
has neither a guaranty of posttrial access to jurors nor a right to question them about their
guilt or penalty verdict. . . . [¶] Second, requiring testimony under such circumstances is
tantamount to the type of 'fishing expedition' condemned in Hedgecock. Either a juror is
willing to come forward and, at least on a preliminary basis, sign an affidavit or not.
6
Unless the reticence results from impermissible interference by the court or prosecutor,
the reasons therefor should not be subject to further inquiry." (Cox, at pp. 698-699.)
Cox added, " 'To grant this kind of power to the losing attorney would open the
door to harassment of jurors and . . . ultimately damage the jury process and the
administration of justice.' [Citation.] In the civil context, we have also recognized that
'permitting counsel for the losing party to interrogate unwilling trial jurors touches the
integrity of our venerable jury process. . . . [O]nce aware that after sitting through a
lengthy trial he himself may be placed on trial, only the most courageous prospective
juror will not seek excuse from service.' [Citations.] Although in Hedgecock we
permitted a limited right to examination under specified circumstances, the justifiable
concern for juror prerogatives cautions against an extension of that rule to the instant
facts." (Cox, supra, 53 Cal.3d at p. 699.) Additionally, the court noted, "jurors might
well completely refuse to talk with defense counsel or investigators if they anticipated
being called into court for subsequently declining to acknowledge their statements under
oath." (Ibid.)
Likewise, we conclude under the facts here that the court's ruling was proper. The
presentation of competent evidence is a prerequisite of an evidentiary hearing on jury
misconduct. (Hedgecock, supra, 51 Cal.3d at p. 419.) Another ruling would subject
jurors to being dragged into court for fishing expeditions. Here, certainly, defense
counsel's questioning of Juror No. 12 would have been a fishing expedition. When
presented with a proposed declaration, Juror No. 12 "backtracked" on his supposed
statements to the investigator and claimed the investigator took his statements out of
7
context. Defense counsel modified the declaration, but Juror No. 12 was still unwilling
to sign it. Counsel conceded the modified version had little information in it, which does
not suggest a strong possibility of prejudicial jury misconduct. As Hedgecock cautions,
live juror testimony is ordinarily warranted only to resolve a conflict in sworn affidavits,
and no conflict existed here because there were no sworn affidavits. (Ibid.)
Further, Smith submits that Juror No. 12 showed up to voluntarily testify at an
evidentiary hearing, but defense counsel subpoenaed him. Counsel advised the court
Juror No. 12 refused to sign an affidavit because he feared implicating himself. The
court could reasonably find he was a reluctant juror. Requiring Juror No. 12 to testify
regarding an unsworn statement is the type of juror harassment Cox is designed to
preclude. Under all the circumstances, we find no abuse of discretion.
DISPOSITION
The order is affirmed.
MCCONNELL, P. J.
WE CONCUR:
BENKE, J.
IRION, J.
8
AI Brief
AI-generated · verify before citing
Holding. The trial court did not abuse its discretion in denying an evidentiary hearing on a motion for a new trial based on juror misconduct where the defendant failed to provide a sworn juror affidavit and the juror was unwilling to sign one.
Issues
Whether a trial court abuses its discretion by denying an evidentiary hearing on juror misconduct when the defendant fails to provide a sworn juror affidavit and relies on unsworn hearsay statements.
Disposition. affirmed
Quotations verified verbatim against the opinion
“The presentation of competent evidence is a prerequisite of an evidentiary hearing on jury misconduct.”
“We find no abuse of discretion and accordingly, affirm the order.”
“Requiring Juror No. 12 to testify regarding an unsworn statement is the type of juror harassment Cox is designed to preclude.”