In re ROBERT WINCHESTER, on Habeas Corpus
Crim. No. 6568
In Bank
Jan. 29, 1960
Petitioner‘s application for a rehearing was denied February 24, 1960.
528
Stanley Mosk, Attorney General, Doris H. Maier and Raymond M. Momboisse, Deputy Attorneys General, for Respondent.
This is a collateral attack upon the orders of the trial court, based upon the same grounds as those urged on the motion for new trial and on the appeal. They are: unlawful separation of the jury after it had retired to consider its verdict; a partisan atmosphere in the courtroom and prejudicial, partisan remarks by the trial judge; errors of law in the admission of evidence; and prejudicial restriction of the petitioner‘s right of cross-examination. The return to the order to show cause urges that the writ of habeas corpus is not available to this petitioner, and that the determination of these issues upon the appeal is conclusive. It also denies that there was any deprivation of due process or denial of any fundamental constitutional rights at the trial.
Habeas corpus has become a proper remedy in this state to collaterally attack a judgment of conviction which has been obtained in violation of fundamental constitutional rights. (In re James, 38 Cal.2d 302, 309 [240 P.2d 596]; People v. Adamson, 34 Cal.2d 320, 327 [210 P.2d 13]; In re Major, 135 Cal.App.2d 405, 411 [287 P.2d 359]; People v. Sorensen, 111 Cal.App.2d 404, 405 [244 P.2d 734].) The denial of a fair and impartial trial amounts to a denial of due process of law (People v. Robarge, 111 Cal.App.2d 87, 95 [244 P.2d 407]) and is a miscarriage of justice within the meaning of that phrase as used in
Habeas corpus is not an available remedy to review the rulings of the trial court with respect to the admission or exclusion of evidence, or to correct mere errors of procedure occurring on the trial (In re Lindley, 29 Cal.2d 709, 723 [177 P.2d 918]) committed within the exercise of an admitted jurisdiction (In re Porterfield, 28 Cal.2d 91, 99 [168 P.2d 706, 167 A.L.R. 675].) It will not lie ordinarily as a substitute for an appeal (In re Byrnes, 26 Cal.2d 824, 827 [161 P.2d 376]) nor as a second appeal. The appeal herein was taken on a settled statement. In referring to the evidence here claimed to have been erroneously admitted, this statement recites that “This testimony was given by witness as a part of a conversation between witness and Defendant. Although Defendant‘s counsel apparently started to object to this answer, no objection was actually made. Further, no Motion to Strike or to have jury disregard testimony or Motion for Mistrial was made.” It is apparent that any error in regard to the admission of this testimony was waived.
Whether or not an erroneous denial of the right to fully cross-examine a witness is a denial of due process depends on the facts of the particular case. (See discussion and cases cited in Priestly v. Superior Court, 50 Cal.2d 812, 822-823 [330 P.2d 39], concurring opinion.) The settled statement does not refer to the claimed restriction upon the petitioner‘s right to cross-examine witnesses for the prosecution. Manifestly we cannot determine from the record before us that any error in this regard was so erroneous as to constitute a denial of due process or a miscarriage of justice.
The two main inquiries before us therefore, are whether there was a partisan atmosphere at the trial which deprived the petitioner of a fair trial and whether the separation of the jury so impaired his right to a trial by jury as to require the granting of a new trial.
The petitioner alleges that throughout the trial an adverse crowd of persons were talking and commenting on the proceedings in the presence and hearing of the jury during court sessions as well as during recesses; that during the final argument of defense counsel there was some muffled heckling going on in the rear of the courtroom; and that when
With reference to the separation of the jury, at the hearing on the motion for new trial the petitioner called the bailiff as a witness. He testified that after the jury had retired to consider its verdict he had taken them to a restaurant for dinner and that while there three of the jurors had obtained permission from him to telephone their respective homes that they would be detained. The telephone was located in the kitchen 30 to 40 feet from where the bailiff was seated. There was an uncovered opening between the kitchen and the dining room. The calls lasted about one minute each, only one juror leaving the table at a time for this purpose. The bailiff remained seated at the table with the other jurors. He was within sound of the voices of the jurors who were telephoning. He admitted he could not distinguish what any of them said, and that he had no personal knowledge of the telephone numbers called, the persons spoken to, nor the conversations which took place. No evidence in rebuttal was offered by the prosecution at that hearing.
On the appeal the prosecution offered in rebuttal affidavits of the three jurors who had made the telephone calls, in each of which it was stated that the affiant had called home, the person with whom the telephone conversation took place, and that no mention was made of the petitioner‘s case. Where only the jurors know what their conduct has been, their unsupported affidavits are the weakest type of evidence. (People v. Backus, 5 Cal. 275, 277; People v. Werwee, 112 Cal.App.2d 494, 497 [246 P.2d 704].) This evidence was not properly before the appellate court. (Broads v. Mead and Cook, 159 Cal. 765, 768-769 [116 P. 46, Ann. Cas. 1912C 1125]; Pardy v. Montgomery, 77 Cal. 326, 327 [19 P. 530]; Solomon v. Solomon, 118 Cal.App.2d 149, 152 [257 P.2d 760].)
The return to the order to show cause herein contains the affidavits of these three jurors, plus affidavits of the members of their families to whom they talked during these telephone conversations, each affirming that no mention was made of the petitioner‘s case during such conversations.
In habeas corpus proceedings the purpose is to go behind form and ascertain substance. The scope of inquiry, under proper circumstances, may embrace additional evidence received either directly or under an order of reference. (In re Connor, 16 Cal.2d 701, 712-713 [108 P.2d 10].)
Whether the separation of jurors without permission of the court after they have retired for deliberation in a criminal case constitutes prejudicial misconduct depends upon the circumstances of each individual case. (People v. Weatherford, 27 Cal.2d 401, 418 [164 P.2d 753]; People v. Rushton, 111 Cal.App.2d 811, 814 [245 P.2d 536].) It was early held that if the separation was such that a juror might have been improperly influenced by others the verdict would have to be set aside. (People v. Backus (1855), supra, 5 Cal. 275.) Such separation, without any showing by the defend-
The affidavits of the three jurors and of the members of their families that no mention was made of petitioner‘s case establish that no prejudice resulted from the telephone calls. The possibility that the jurors may have been approached by some person or persons present in the kitchen is so remote that we do not believe a presumption of prejudice may be supported by that possibility alone. Accordingly we conclude that the presumption of prejudice arising from permitting the jurors to telephone has been rebutted and that petitioner suffered no impairment of his right to a fair and impartial jury.
The writ is denied and the petitioner is remanded to the custody of the sheriff of Merced County.
Gibson, C. J., Traynor, J., Spence, J., and McComb, J., concurred.
PETERS, J.-I dissent.
The majority opinion correctly states the law but then misapplies that law to the facts shown by the record.
The majority opinion correctly points out that the applicable code sections (
Thus, if the separation of the jury took place under circumstances “that a juror might have been improperly influenced”
In the instant case, the improper separation of the jury is admitted. Thus, the only question is whether that separation occurred under circumstances that one or more of the three separated jurors “might have been improperly influenced by others” during the separation. The record demonstrates that this is a reasonable possibility. This being so the verdict cannot stand.
The majority opinion states the facts to be that after submission of the case, the bailiff took the jury to a restaurant for dinner; that three of the jurors, separately, were permitted to go to a telephone, unescorted, for the stated reason of calling their respective families; that the telephone used was located in the kitchen of the restaurant 30 to 40 feet from where the bailiff was seated; that there was an uncovered opening between the kitchen and the dining room where the bailiff was seated; that each call lasted about one minute; that the bailiff could see the jurors at the telephone and hear their voices, but could not hear what they said. But what the majority does not state is that the kitchen was occupied by cooks and perhaps others who may have talked to the three jurors or made references to the case in the presence of those jurors. The record shows that throughout the hearing before the trial court challenging the separation of the jury, it was assumed, at all pertinent times, by everyone connected with this proceeding, and particularly by the prosecution and by the trial judge, that during the telephone calls the kitchen was occupied by cooks and perhaps by other persons. In fact the trial judge in ruling that the “presumption of prejudice” had been overcome, based his ruling on the fact that because cooks were present in the kitchen, and could have heard the telephone conversations, it would have been highly unlikely that the jurors would have engaged in improper conversation on the telephone. (Cl. Tr. 54, 55.) The attorney general, in his brief, adopts this argument. He urges that the trial court‘s ruling was largely based on the fact that because the telephone calls were “made in the presence of other persons [the cooks et al.]” the separation of the jurors could not possibly have caused any prejudice to petitioner.
The majority opinion admits that the separation took place under circumstances sufficient to raise the “presumption of prejudice,” but holds such presumption was rebutted in this habeas corpus proceeding by the affidavits of the three jurors
To this argument there are several answers. The majority opinion concedes that the affidavits of the jurors “are the weakest type of evidence.” The affidavits of the members of their families to whom they talked during these telephone conversations would seem to be in the same category. Yet the state did not produce or offer any excuse for not producing additional evidence of a higher nature which was available, that is the testimony of the cooks and probably others who, the trial judge and the attorney general concede could have overheard the conversations. In such a situation
The presumption of prejudice was not rebutted for another reason. There is no showing of any kind that those in the kitchen did not talk to the jurors about the case, or make remarks about the case in the presence of the jurors. The jurors’ affidavits do not deny that the cooks in the kitchen talked to them, nor have any affidavits of the cooks been filed. Under these facts the reasonable possibility exists that these three jurors may have been improperly influenced by biased members of the restaurant staff. Certainly, it is a possibility that the cooks, in the presence of the jurors, may have said something to those jurors about the case. These facts, under the very rules of law set forth in the majority opinion, require the issuance of the writ. Certainly, it was not incumbent on Winchester to prove that the cooks had talked to the jurors about the case. To the contrary, it was incumbent upon the prosecution to rebut the presumption that they had. This the prosecution did not do. Thus the case is really a very simple one. Since the prosecution has not produced evidence to rebut the presumption of possible misconduct of persons other than those to whom the telephone calls were made, the prosecution has not sustained its burden. The possibility exists that one or more of the three separated jurors “might have been improperly influenced by others.” This being so, and that possibility being reasonable and not being rebutted, the writ must issue.
The majority opinion seeks to overcome this argument by the simple statement that the “possibility that the jurors may have been approached by some person or persons present in the kitchen is so remote that we do not believe a presumption of prejudice may be supported by that possibility alone.” What makes that “possibility” “remote“? It is not only a possibility but it is a reasonable possibility. It is strengthened, if it needs strengthening, by the fact that the record shows that this case had aroused great public interest in this small community and had caused expressions of feelings adverse to petitioner. While the majority opinion correctly points out that the trial judge denied the improper conduct attributed to him by counsel for petitioner, the record also includes his admission that he was required to, and in fact did, admonish the spectators during the trial when such spectators audibly expressed their feelings adverse to Winchester.
Under these circumstances, it seems clear to me that the “presumption of prejudice” arose and has not been rebutted. Thus, in my opinion, the writ should issue.
There is another factor to be considered. Although the charge against petitioner was failure to support a minor child, the basic issue was paternity. Although normally that issue is triable in the superior court (
Inherent, although unexpressed, in the majority opinion is the thought that by granting petitioner‘s application this court might be doing violence to the rules and customs which have developed since the inclusion of both sexes on juries,
I would issue the writ.
Schauer, J., concurred.
PETERS, J.