Lead Opinion
Opinion
Pеtitioner, Jerry D. Bigelow, was tried for murder, robbery and kidnapping. The jury convicted him of robbery and kidnapping, but the following bizarre circumstances resulted in a mistrial on the murder charge: The jury had first submitted a verdict which acquitted Bigelow of murder, but found that the charged special circumstances existed. While the trial court and counsel attempted, over a period of one and one-half days, to resolve the inconsistency, one of the jurors changed his or her mind. Accordingly the jury then stood deadlocked 11-1 on the murder count and the court declared a mistrial. Bigelow seeks a writ of mandate to compel the trial court to enter judgment of acquittal on the original verdict. We will issue the writ because we believe that the trial court exceeded its authority in its control of the jury process; fundamental statutory and constitutional principles require that we give effect to the jury’s attempted acquittal.
Bigelow was previously convicted of felony murder. The California Supreme Court reversed that conviction as a farce and a sham because he was tried and given the death penalty without counsel. (People v. Bigelow (1984)
The problem which arose in this case was the jury’s submission of an inconsistent verdict. After having deliberated for six days, the jury returned a unanimous written verdict as follows: (1) the jury found defendant Bigelow not guilty of the crime of murder in the first degree in violation of Penal Code section 187;
The trial court refused to record the verdict. When the judge first read the verdict, he declared that it was not consistent. He asked the jury to retire to the deliberation room, and then said to counsel that the finding of not guilty of murder was inconsistent with the finding that the special circumstances were true. After some discussion with counsel, the judge also said that the verdict was not final. “These verdicts cannot be considered to be final because we have not read it and we have not polled the jury.” To which defense counsel, Mr. Bryan, responded “Right,” the judge said, “So stipulated?” and the district attorney, Mr. Spencer, said “Yes.” The judge further commented that “There’s no way it can be finаl, because this is just inconsistent.”
A discussion took place between the judge and Mr. Bryan. All parties were troubled by the inconsistency in finding the defendant innocent of murder but guilty of special circumstances. Mr. Bryan at first said that he thought the jury was confused and perhaps were trying to convict of robbery and kidnapping but acquit of murder. He suggested that the jury should be made to understand “that there’s an inconsistency there” and that “they can’t find him not guilty of murder and then answer yes to [the special circumstances] question.” He said, “Maybe if they’re just told that, maybе that’s something they could clear up like that and we could be done with it.” At the judge’s recommendation he then agreed to “just let it sit right now.” As it was getting late in the afternoon, the judge said the jurors should be sent home and the court and counsel should try to work out a solution to the problem. The judge recalled the jury and told them that
Mr. Bryan did not then demand that the jury be polled or the verdict be recorded. Howevеr, he did urge the court to construe the verdict form as a final verdict of acquittal. Mr. Bryan eventually articulated the position that the verdict form the jury had returned acquitted Bigelow of murder, that it expressed the decision that Bigelow was not guilty of murder and nothing else. He then went on to say that the jury was confused when it made findings on the special circumstances. Mr. Bryan argued that the jury instructions were misleading because (a) they did not explicitly inform the jury that if they acquitted of murder they should not go on to make findings on the special circumstances and (b) the jury was separately instructed to make findings on the special circumstances in language which could be read as imposing on the jury a mandatory duty to make special circumstances findings regardless of the verdict on the murder charge. The pertinent instructions read as follows: (1) “If you find the defendant in this case guilty of murder of the first degree, you must then determine if murder was committed under one or more of the following special circumstances.”; (2) “You must decide separately each special circumstance charged in this case. . . .You will include in your verdict on a form that will be supplied, your finding as to whether the special circumstance is or is not true.”
The following day, discussions between the court and counsel resumed. Mr. Bryan formally moved in writing for the court to receive and record the verdict of acquittal of murder of count I of the information, and made an argument under section 1162 that the jury had rendered a verdict of acquittal; that the findings were not inconsistent but rather that the special
The court denied the motion to enter a judgment of acquittal, gave the jury different verdict forms and sent them back to deliberate, over defense objection. Before the afternoon deliberations, the court recalled the two new sets of verdict forms which it had given the jury (still unmarked) and gave them yet another form.
The next day, May 11, was the eighth day of deliberations. The jury began deliberating at 9:35 a.m. At 11 a.m., the court received a written inquiry from the jury asking “Can we go with our original not guilty verdict?” The court after discussion with counsel had the jury brought into the courtroom and instructed them that “All the verdict forms to be used in this case are in your possession. You use what you have. And instructions are contained therein, as well as standard instructions I gave you.” At this juncture one and one-half days had passed since the jury had submitted its original verdict to the court.
The foreperson then said to the judge “Okay, your Honor. Then I’ve got another question.” That question was “Your Honor, we the jury in this case have come to an impasse, 11-1, one person has changed his mind. We are hopelessly deadlocked. Paul Dickie [foreperson]. P.S. Please poll us. Thank you.”
The court excused the jury for the noon recess. After the recess, the court received another written question from the jury which said, “I did not know that the jury foreman sent in a request of the first verdict be admitted. One question I would like to know is that if one comittes [s/c] a murder (two people involved) are both parties charged for one, even if one person pulls the trigger, a big confusion on the part of all.”
The court attempted to persuade the attorneys to make further argument to the jury, but they could not agree. (The district attorney wanted to wait a few days if he had to argue, defense counsel was for immediate argument or nothing.) Finally the court brought the jury back into the courtroom and told them the answer to the foregoing question was in the instructions which they had. The jury then submitted a second request to be polled, stating the jury was deadlocked 11-1. The court polled the jury on the question whether further deliberation would be produсtive. Only six thought it would not be productive, so the judge sent the jury out for further deliberations. Shortly afterward the jury returned a note that they were deadlocked 11-1. After polling the jury and finding unanimous accord that further deliberation would be futile, the court declared a mistrial over
The defense renewed its motion to compel recording of the verdict of acquittal. The motion was denied. The court did not permit the jurors to testify regarding their discussions in the jury room.
Discussion
The problem in this case began with inconsistency and lack of clarity in the jury instructions, which were necessarily lengthy and complex because of the multiple offenses charged and the alternative theories of murder (felony murder or “straight” murder under § 187). One problem was that although the grammatical form of the murder instruction implied that the jury should not find on the special circumstances if they аcquitted of murder, the instruction did not directly inform the jury not to go on to special circumstances unless they convicted of murder. It will be recalled that the instruction read “If you find the defendant. . . guilty of murder of the first degree, you must then determine [if special circumstances existed].” Another problem was that a separate instruction directed the jury to find on special circumstances: “You must decide separately each special circumstance charged in this case. . . . You will include in your verdict on a form that will be supplied, your finding as to whether the special circumstance is or is not true.” This instruction was not qualified by a reminder not to find on special circumstances unless the jury had convicted of murder.
The problem was then compounded by the trial court’s failure to take prompt action. In our view, as we shall state in detail, the trial court was not under a duty to enter an immediate acquittal on the jury’s first submission on May 9. It was then late in the day, the verdict was inconsistent, and it was not unreasonable to allow the jury to go home for the night while the court and cоunsel took some time to decide what action to take. But the trial court’s course of conduct beginning on May 10, when it denied the defense motion to receive the verdict and sent the jury out for further deliberation, had the effect of directing the jury to reconsider its verdict.
Four statutes bear on this case, sections 1161, 1162, 1164, and 1165. Section 1161 provides that if there is a verdict of conviction and the court thinks the jury may have mistaken the law, the court may explain its reasons to the jury and direct it to reconsider the verdict; “but when there is a verdict of aсquittal, the Court cannot require the jury to reconsider it.” (Italics added.) Section 1162 provides that judgment may be given on an
From these statutes certain basic principles follow. First, once the jury submits a verdict of acquittal to the trial court, the court may not order reconsideration of that verdict but rather must order that judgment be entered on the verdict. (§§ 1161, 1165; People v. Blair (1987)
Here, the jury submitted a written statement, duly signed by the foreman, stating a unanimous acquittal of murder. That verdict was legally inconsistent in also finding the existence of the special circumstances. That verdict might also be viewed as not in proper legal form, for the same reason. However, a jury verdict of acquittal need not be in any particular form. (§ 1162.) The jury may render its verdict in any manner that unmistakably manifests its intent. The touchstone of a jury verdict of acquittal is the jury’s manifestation of a definite and final intent to acquit of the offense. (See Stone v. Superior Court (1982)
Nor need a verdict be legally consistent. The jury’s prerogative to render a legally inconsistent verdict is unquestioned by any authority. Jury unanimity, not consistency of theory, is the touchstone of a valid verdict. (People v. Milan (1973)
Once the jury has manifested its intention to acquit, then the court must receive and record the verdict. (§§ 1164, 1165.) The court may not thereafter declarе a mistrial without giving effect to that verdict. Nor may the court, by refusing to poll the jury or otherwise impeding recordation of the verdict, deny the defendant his right to have his guilt or innocence determined by the first tribunal to hear the matter. (Stone v. Superior Court, supra,
Stone v. Superior Court, supra,
When the trial court first received the verdict, it justifiably viewed thе submission as ambiguous because of the inconsistency of acquittal of murder and findings that special circumstances existed. Such a verdict could have two possible meanings. The jury could have intended a finding of not guilty of murder, followed by superfluous findings with respect to punishment which the jury mistakenly believed it was obliged to enter. (See, e.g., People v. Allen (1974)
But by the next day, May 10, faced with a written statement of acquittal of defendant which purported to be unanimous, and with defendant’s motiоn to receive and record the verdict, the trial court could not resubmit the matter to the jury for further deliberation. At that point its options were limited. The court could have either 1) granted the motion to record the verdict of acquittal, 2) polled the jury to determine if there were 12 votes for acquittal, or 3) informed the jury that the acquittal was not consistent with findings of special circumstances and asked it to clarify its verdict to show its true intent. But instead, the court sent the jury back to deliberate. Such deliberations continued for an еntire day and one-half, from the morning of May 10 until late in the morning on May 11, when a juror finally changed his or her vote and the court declared a mistrial. During all that time the jury was not told why its verdict was not acceptable. This conduct by the trial court amounted to mandating reconsideration of a verdict of acquittal and is forbidden by statute and by precedent. (§ 1161; People v. Blair, supra,
The People argue that not all the jurors signed the inquiry whether the jury could go with its first verdict. That fact became apparent when a juror submitted a later question prefaced with the statement that “I did not know that the jury foreman sent in a request of the first verdict be admitted.” However, the number of jurors who made the inquiry is not determinative. The point is that a day and one-half after submission of the original acquittal, which purported to be unanimous, some jurors were still inquiring whether that verdict would be acceptable. The court essentially told the jury that it was not. Under the circumstances presented here, the eventual hung jury can only be viewed as the product of trial court conduct which the jury understood as rejection of its verdict. That conduct deprived the defendant of his right to test the jury verdict (People v. Thornton, supra,
Bigelow tenders juror affidavits which he claims demonstrate that the source of the confusion was the jury instructions. However, the trial court correctly rejected this evidence, as must we. A court may not consider juror affidavits for the purpose of demonstrating the jurors’ mental processes during deliberatiоns; such evidence is inadmissible. (Evid. Code, § 1150; People v. Grant (1985)
The People cite cases where the trial court resubmitted inconsistent verdicts to the jury. (People v. Mestas, supra,
Federal cases arе cited allowing the trial court to direct the jury to continue deliberating if the verdict is deemed unintelligible. Even while citing these cases, the People recognize they are not controlling in California in light of the statutory mandates of sections 1161 and 1165. Further, even conceding the trial court’s right to require some further deliberation, that right did not extend to twice rejecting the verdict over a period of a day and a half with no explanation and requiring the jury to continue deliberating after it had rendered a verdict that purported to bе a unanimous acquittal.
The People argue that the inconsistency of the acquittal with the contemporaneous convictions of robbery and kidnap alone justified rejecting the verdict. That position is refuted by voluminous authority which, as already discussed, and as the trial court here recognized, allows the jury to acquit despite any theoretical inconsistency. The law on this point is beyond argument. None of the cases cited in opposition holds otherwise.
The People argue that Mr. Bryan agreed in open court that the original verdict form was inconsistent and ambiguous and thus may not now argue that the verdict could be treated as a valid acquittal. They emphasize Mr. Bryan’s failure immediately to demand receipt of the verdict and polling. The record speaks for itself; at first all concerned were confused as to the significance of the verdict but by the end of the day on which it was returned Mr. Bryan contended that it was an acquittal, and by the next morning he had formally moved in writing to record the verdict. The People’s emphasis on Mr. Bryan’s allеged original “agreement” that the verdict was inconclusive reads too much into counsel’s remarks. At most,
Further, Mr. Bryan’s state of mind does not control whether or not the jury acquitted his client. If they did, then nothing he said could change that fact, and if they did not then the People are right regardless of what Mr. Bryan did. Defense counsel has no power to waive his client’s fundamental constitutional protection against double jeopardy.
We conсlude that defendant is entitled to entry of a judgment of acquittal on the murder charge because under the circumstances presented here the trial court impermissibly mandated reconsideration of a verdict of acquittal.
Disposition
Let a writ of mandate issue directing the Monterey County Superior Court to receive and record the verdict of the jury in this matter, acquitting the defendant, Jerry D. Bigelow, of the crime of first degree murder, Penal Code section 187.
Agliano, P. J., and Capaccioli, J., concurred.
Notes
All further statutory references are to the Penal Code unless otherwise indicatеd.
Concurrence Opinion
I concur in the judgment but respectfully disagree with the majority’s characterization of the trial court’s conduct with respect to the jury.
In my view there is inadequate record support for the majority’s conclusion that the trial court may have coerced reconsideration of the verdict and that it directed continued deliberation without giving the jury guidance. The record indicates instead, that after lengthy discussion with counsel and thorough evaluation of this difficult problem, the trial court chose what was then a manifestly reasonаble solution. It gave the jury a new form of verdict which, unlike the initial form, clearly explained that the jury should not determine the question of special circumstances upon deciding to acquit on the charge of murder. The court thus gave the jury the opportunity and means to itself purge the verdict of the inconsistent findings.
The court’s well-intentioned plan unfortunately went awry when a juror appeared to reconsider his vote, leading the court to declare a mistrial. We now conclude, in light of Penal Code section 1161, that the trial court should earlier have accepted and recorded the jury’s verdict. That conclusion, however, neither requires nor justifies the suggestion that the court in effect directed the jury to reconsider its verdict. As I view the record, the
A petition for a rehearing was denied April 7, 1989. Agliano, J., was of the opinion that the petition should be granted. Petitioner’s application for review by the Supreme Court was denied June 22, 1989. Kaufman, J., was of the opinion that the application should be granted.