*1 No. 22558. Feb. [Crim. 1983.] PEOPLE,
THE Plaintiff and Respondent, COOK,
JERRY RAY Defendant and Appellant.
Counsel Funke-Bilu, lian under Court, appointment for Defendant and Supreme Appellant. Denvir,
Quin Defender, State Public Goldsen, H. State Ralph Deputy Defender, Public as Amici Curiae on behalf of Defendant and Appellant. George General, Deukmejian, Philibosian, Attorney Robert H. Chief Assistant General, Stein, Attorney General, William D. Assistant W. Eric Attorney Collins and General, Frances Marie Dogan, for Plaintiff Attorneys Deputy and Respondent.
Opinion BIRD, C. J. a verdict, has deliberated and failed to After agree upon may the trial court comment on the evidence and express opinion regarding or innocence of the accused?
I. Appellant was convicted aby a witness from preventing dissuading a trial attending by means of force (Former or threats of unlawful Pen. injury. Code, 136, (b).)1 subd. § case prosecution’s against consisted appellant primarily
of Clemie McManus and her 10-year-old Jaine. McManus had daughter, known appellant, his brother Randy, and other members of the for family Cook more than a year. was Randy a defendant murder case. pending capital Legislature 1The repealed 1980, Penal Code 1, section 136 chapter Statutes section page 2076. See now Penal Code section 136.1. a witness McManus In the prosecution subpoenaed November alleged that after the the hearing testified at Randy’s hearing. She preliminary home, murder, at McManus’ hid the police and his from Randy accomplices for testify to again expected her and her childrеn McManus holding hostage. the state at trial. Randy’s upcoming came to 26, 1980, unexpectedly the afternoon of March appellant
During According door. her the front McManus’ outside apartment spoke ex- McManus, She Randy. was testifying asked she appellant why against at the her be witness had subpoenaed plained prosecution he heard had examination. Appellant assertedly responded preliminary his testified against different and warned McManus “if story [McManus] stated further . . off the stand alive.” Appellant brother . wouldn’t walk [she] *4 left, he . . . he’d after that “if the go should to police department [McManus] see that the situation was taken care of.” She and serious.” was
McManus testified that voice was “stern appеllant’s McManus death” left the “scared to his threats. After by appellant apartment, Jaine, to the incident. and her went the daughter, report to station police with the conduct was consistent McManus’ testimony concerning appellant’s door when her answered the front told Jaine testified that she story by daughter. her behind the half-open knocked and then summoned mother. From appellant door, She in a loud voice. she could hear to her mother talking appellant that if her heard in the courtroom and that he would be allegedly appellant say testified, alive.” Jaine also her come off the stand mother he “wouldn’t let of” if the police claimed heard “to care McManus she threaten take appellant were contacted. cross-examination, credibility the attack sought
Through appellant that the her was theory McManus and One daughter. presented appellant by too made him witnesses were recall statements accurately frightened that the witnesses had the conversation. also contended during Appellant from fabricated their incidents of harassment retaliation for prior other members of the Cook family.2 after- early or innocence jury began deliberating appellant’s guilt that the
noon 1980. At 11 next July requested a.m. the morning, jurors by only prosecution Hayse, polygrapher employed 2The other witness was Kenneth Department parties, Hayse pursuant stipulation California of Justicе. testified that to the performed polygraph appellant. Hayse appellant’s he had answers examination stated denying were “deceptive.” that he had threatened McManus in his conversation her Hamp Appellant testify only did not his defense John trial. The witness called was ton, Hayse. validity a polygrapher, questioned who of the examination results reached testimony McManus and her be read back them. After complete daughter done, was this deliberations continued The trial from 2:37 until 4:08 p.m. p.m. court then a note received from the their to reach jurors inability indicating verdict. The court recalled the any and asked whether it could provide assistance it to them. The court the state authorized Constitutiоn explained to comment on the evidence at the trial. presented be-
Initially, jury forewoman asked for an difference explanation bench, tween a misdemeanor and a After an from the felony.3 answer receiving It forewoman stated that “otherwise it is of law. ... is the not matter matter of the believability of a witness.” When the trial court whether inquired continued, would be able to arrive a verdict if deliberations were Nevertheless, forewoman stated that she did so. the trial court not think in- structed the resume its deliberations.
At 4:30 returned to the p.m., courtroom. The forewoman reported was still deadlocked and delivered a note the court. The note in- dicated that the could resolve its if “an differences it could hаve [by the trial judgment of both Clemie and Jaine court] counsel, McManus as witnesses.” Over the the trial objection appellant’s *5 court assented to the It jury’s request. its comments the prefaced by instructing to jury pursuant CALJIC No. 17.32 that its were “intended to be ad- statements and that visory only” the remained “the exclusive of the judges questions of fact.”4 the court
Thereupon, reviewed the the of the defining instruction elements offense and of charged the issue fact. expressed ultimate opinion concerning “After I look that instruction it and to recollection of evidence apply my case, I taken in this am of in those have fact been opinion that ingredients a beyond established reasonable doubt . . .” . 3The had been instructed that a lеsser of included offense former Penal Code section (b) (a) (a), was willfully subdivision subdivision that person of section. Under a who subdivision prevented or a attending dissuaded witness from proceeding guilty was of a misde (b), meanor offense. Subdivision felony, requirement prevented added the that the witness attending by or dissuaded from proceeding injury. of or use force threat of (4th 1970) 4CALJIC 17.32 by No. ed. anything states in full: “I have not intended I have said done, asked, by any or or questions suggest you that I or should have to intimate how any questions decide of fact you. submitted to indicate, anything your “If have you disregard I done or said to and has seemed so will it form opinion. own time, however, case, you deciding per- “At this and for the am purpose assisting of this I by mitted the Constitution of California to comment on the evidence and the and credibility any of witness. “My you advisory only binding you comments are intended to be not are the ex- and are as judges you credibility clusive questions fact submitted to and of the witnesses. any or disregard they agree your “You should all if do with views of the comments credibility
evidence and the of the witnesses.” The to the jury. conclusion then evidentiary explained basis for this was stated, thing the same by doing trial “Now I have arrived that [opinion] court is, do, that to look at and that have to you I have asked do and you right will that instruc- witnesses, if recall you believability credibility mat- to look at certain 1979)], 2.20 ed. we tell (6th you tion No. rev. [CALJIC character and included, “the quality ters.” factors the court explained, These mannеr and the testifying of the witness while testimony, demeanor bias, or other testifies, interest which or she existence nonexistence are consistent motive, made witness that statements that previously [and] to the statements in-court these standards testimony.” their Applying [s/c] is in fact her “their testimony of McManus and the court opined daughter, credible and ... of those witnesses is believable evidence both given have they it doubt that the extent that this Court a reasonable beyond satisfies arrive at elements would be willing established the and therefore I necessary a verdict in this matter.” of McManus’
The court elaborated extensively regarding well, it, have to ask yourselves, “I think when look at you really testimony. you bias, tell the truth. What what motive in this witness not to or interest that time or there on March before in this situation that existed 26th of 1980 where had some since that time that would this witness in a she put position bias, here or motive but tell the truth as she testified interest to do anything under oath[?] me I analyze
“I find there is none. doesn’t as It make sense just any bias, woman, testified, interest or any her that she had testimony, and how she motive to do truth. anything but tell the *6 action,
“She can I have been able to discern gain this as far as nothing by been from what has said in the I convinced her demeanor courtroom. was time, that all that she she is kind of that we see just plain, ordinary witness does not have that would her in a any special skill or education training, put where we any would not that she could answer those position expect questions thаn that more she did or without of the inconsistencies articulately ap- some those, we can in that because as I told peared testimony, you, something [szc] in the normal of events. expect course her she
“I came to the that I believe because also conclusion would simply had technical had other inconsistencies, occasions to tell the same [5] that her stories story have always and although been there consistent, that might testimony at apparently referring 5The trial court was between McManus’ inconsistencies trial, examination, police to the preliminary her and her written statement trial, date incident. At threatened “that the situation appellant of the McManus stated that contrast, if at the reported By taken care of’ him to the she had testified police. she [would be] defendant, Cook, an without invitation on her that this Mr. came to her part in establishment and her said words which can be inter presence reasonably as threat force and violence preted her her in upon body person upon her, order to dissuade again, remember that means to advise or re only toor ask her from in quest any further his testifying against proceedings [>z'c] brother.” discussion, this
Following the trial court shifted its attention to appellant’s motive in commented, committing charged offense. The court it “I think is established beyond doubt that his any brother was in fact a defendant ain capital offense, a murder and that the victim of kidnapping, that case was a ten-year- old and that the girl, purpose motive that was to that killing girl keep from testifying at trial and that matter did in fact involve this defendant’s brother, and that if she had that something she and could perceived testify case, against regarding it well do underlying might damage to his very brother and relatives, because of the fact that they blood and the natural in- clination is to ones protect he family, that would fact have a motive to [ízc] to that go establishment as soon as he was free to do so and tell her to knock it off and not do it again.” the court
Finally, concluded its remarks on the evidence by reiterating views concerning McManus’ truthfulness and “. . I . am of appellant’s guilt. after opinion, case, evaluating witnesses who testified this that she is Well, in fact a truthful then, witness. I have to those words threat accept and use of force were actually uttered and therefore I be of the would that he is in fact Code, of a guilty violation of Section 136b of the Penal felony.”
Before deliberations, their resuming were reminded that had they the “ultimate responsibility of the determining believability witnesses” and that trial court’s comments were not Fourteen minutes after “binding.” room, to the returning found guilty charged appellant offense. now
Appellant appeals from his conviction.
II. The com issue raised this whether the trial court’s by case is primary ments the trial to deadlocked were contends that jury proper. Appellant ” preliminary appellant go examination that not the police department. “asked to She [hеr] had not any mentioned threat made appellant informing dissuade her from about police the incident. In her earlier written police, statement to the had stated that she was witness by appellant police, told she if contacted the she would be “taken care of.” 407 and thereby verdict of guilty influenced the to return a court improperly .6 the evidence to comment on constitutional authority exceeded scope VI, in perti Article section 10 of the California Constitution provides the evidence and nent court make such comment on part “[t]he for the necessary in its is witness as credibility any opinion to allow determination of the The of this is cause.”7 proper purpose provision evidеnce to the trial court to utilize its in analyzing experience training 66 Cal.2d (1967) v. Brock assist verdict. reaching just (People 645, 50 Cal.2d 321, 889]; (1958) 650 Friend 426 P.2d v. Cal.Rptr. People [58 723, 570, 97]; 576-577 P.2d 5 Cal.2d at pp. v. People Ottey, supra, [327 466, 725-726; Quercia U.S. 469 (1933) see also v. United States 289 [77 1321, 1324-1325, 698].) L.Ed.2d 53 S.Ct. the trial court “to do
To facilitate this the Constitution objective, empowers Friend, 50 more than v. merely supra, summarize the evidence.” (People 576.) Cal.2d at the testimony, advising court evaluate p. may critically as to of the witnesses and the credibility weight significance {Id., 576-578.) evidence. at pp.
However,
not without
the trial
to comment on the evidence is
court’s power
Brock,
650;
v.
People
strict limitations.
v.
Cal.2d at
66
(People
supra,
p.
Friend,
469,
577;
(1935) 4 Cal.2d
50 Cal.2d at
v. De Moss
supra,
People
p.
182,
P.
1031];
P.2d
v.
187
477
134
Peoplе Huff (1955)
Cal.App.2d
[13
[50
too
168].) The
likely
place
comment is that the
danger
judicial
issue. (People
much reliance on the
of how to resolve a factual
judge’s opinion
Friend,
Schauer, J.);
v.
(dis.
v.
The United States Court has in Supreme similarly commented Bollenbach v. United (1946) 607, 354, States 326 350, U.S. 612 L.Ed. 66 S.Ct. [90 402]. “ ‘The influence of the trial and of judge necessarily properly . . great weight,’. jurors аre ever watchful of the that fall from him. words trial, in a Particularly criminal the last word is to be decisive judge’s apt States, word.” (See Quercia also v. United U.S. at 470 supra, 289 p. [77 1325].) L.Ed. at p. reasons,
For these trial court that chooses to comment must be careful to extremely exercise its “with power wisdom and restraint and ” view Shannon, protecting rights defendant. v. (People 260 supra, 331; at see 864, also Cal.App.2d p. (1975) v. Rincon-Pineda 14 Cal.3d People 119, Friend, 886 247, 538 Cal.Rptr. 845]; P.2d 92 A.L.R.3d People [123 v. supra, 587; Moss, 50 Cal.2d at People 77.) v. De 4 p. Cal.2d supra, p. court’s comments must be fair and not scrupulously invade province Friend, jury as exclusive trier of fact. v. 50 Cal.2d at (People supra, 577-578.) pp.
Prior have VI, cases held that article section 10 does not the trial рermit judge state inaccurately testimony witnesses nor withdraw material evidence Brock, from the 650; jury’s consideration. v. (People 66 Cal.2d at supra, p. Friend, People v. 577; 50 supra, Cal.2d v. 5 Cal.2d Ottey, supra, atp. People addition, In 724.) at p. comment should rather than temperate argumentative the trial court must avoid advocacy. engaging partisan Moss, v. De (People 476-477; 4 supra, Cal.2d at v. Talkington pp. People 75, (1935) 8 368].) 99 P.2d Cal.App.2d [47
Most importantly, constitutional comment provision allowing judicial not authorize does arbiter usurp exclusive function as the jury’s questions fact and the v. Ottey, supra, witnesses. (People 728; Cal.2d at p. 56, v. Moore People (1974) 40 65-66 Cal.App.3d [114 655].) No matter Cal.Rptr. how the evidence overwhelming guilt, “[t]he not in the judge may guisе of comment control the verdicts a direction either Brock, 650; or directly made.” impliedly (People v. 66 Cal.2d at supra, p. (1971) v. Foster People 657; v. Farnum Cal.App.3d People 310, 314-315 327].) The ultimate for responsibility determining innocence of the accused must remain with those box. “This is well principle normally so established that its basis (United 1969) matter of discussion.” (1st States v. Cir. 416 F.2d Spock 180-181.)
It is difficult to draw line of demarcation between those comments precise VI, evidence which are authorized article section 10 and those which Shannon, 724; not. v. (People Ottey, supra, supra, Cal.2d
409 comments 330.) judicial at Prior decisions have scrutinized 260 p. Cal.App.2d comments and and extent of the under a test that examines “the context Flores v. (People comment is made.” circumstances under which peculiar Shannon, v. 579, 138]; People 584-585 (1971) 17 Cal.Rptr. Cal.App.3d [95 330.) at 260 supra, Cal.App.2d p. circumstances decisions involving
There to be no California appear comments on the of the in which the court’s identical to those case present However, was deadlocked.8 evidence were made after the that it jury reported the course comments during two Court of decisions involving judicial Appeal deliberations instructive. jury Flores, 579, returned to the the jurors In v. 17 People supra, Cal.App.3d hours. The foreman reported courtroom after three deliberating approximately five to had verdict and was divided been able to reach a yet the two testifying The trial cоurt then analyzed seven. witnesses, officer, conviction as the defendant and the and stated its arresting deliberations and the defendant’s continued its guilt. Thereupon, rendered a verdict. guilty court[,] reversed, of the
The Court of that “the comments Appeal concluding seven,’ five to were made to after it was advised that the was ‘split ” comments, be tan- (Id., were found to 583-584.) an error. at These which pp. conviction, tamount to an argument jury’s for “had the effect usurping defendant’s constitutional function as the sole of the facts to determine 584, (Id., 588.) or innocence.” at pp. Moore, involved cir- v. 40 56 People supra, Cal.Rptr. Cal.App.3d 655] [114 Moore, almost deliberated cumstances similar to those of Flores. In the jury court informed the three hours before to the courtroom. The foreman returning been able to was still the evidence and had not yet considering to a verdict. the court reviewed the agree Thereupon, of- of the charged witnesses its that the defendant was gave guilty deliberations, convicted fense. Less than two hours after the jury resuming the defendant. . . . exceeded the
The Court of concluded that “the court’s remarks Appeal comment on the evidence” constitutional conferred on trial authority judges trial court’s 8Many part involve comments on the evidence made as decisions Brock, supra, 66 e.g., People (See, jury. v. prior instructions to submission of the case to Friend, 649; 574; (1936) 6 supra, People v. Gosden People p. p. at v. 50 Cal.2d at Cal.2d 155, 162-163, People 211]; fn. 1 v. Smith Cal.App.2d Cal.2d P.2d 267 [72 Shannon, Huff, 2; People supra, 696]; fn. v. Cal.App.2d p. at 185.) supra, p. and reversed the (Id., defendant’s conviction. 67.) the court Initially, *10 found that the trial (Id., review of judge’s the was inaccurate. at testimony 65.) however, More p. important, was the fact that the comments occurred dur- the course of the ing jury’s deliberations. This circumstance led the Court of to conclude that Appeal “the judge jury’s the function” to decide usurped [had] (Id., the of 67.) facts the case. at p.
Both Flores and Moore implicitly recognized the trial court’s timing remarks on the evidence is an to in important circumstance consider determin- the ing impact of judicial comments on a As this court observed in jury. Cooper (1961) v. Superior 291, 842, Court 55 Cal.2d 299-300 359 P.2d Cal.Rptr. [10 274], the “coercive effect” of comment when the comments greater are made the course during of deliberations rather than “as a at the summing up conclusion of the counsel’s arguments.”
Comments made at a time when deliberations have resulted in a jury deadlock, case, inas the are present even more to be apt controlling. Abiding the trial court’s will opinion the deadlocked with an alter- provide jury easy native to the arduous task of to hammer out a unanimous decision. It attempting is too much to expect that who jurors have honest different from that opinions of the more trial experienced will be able to to judge hold their after positions the trial court explains its viеws to them.9
This was in recognized an decision of the Fourth early Circuit Court Ap (Foster States (4th There, v. United peals. 1911) 305.) Cir. 188 the F. court ex verdict, . . plained . are to jurors unable as to their agree “[o]nce slightest expression from the to or presiding as innocence guilt defendant must have necessarily influence controlling minds upon (Id., . . . .” jury 309.) rule in Foster the trial p. adopted prohibited court from or expressing any opinion innocence of accused guilt “after the had retired and at a time when jury they had failed as to their agree (Ibid.)10 verdict.” cautionary is9It evident that exclusive jury instructions the effect that the is the arbiter of potent improper judicial verdicts are insufficient neutralize the effect of comment. As the 123, (1968) Bruton v. United States Supreme United States 135 Court stated 391 U.S. [20 476, 484, 1620], L.Ed.2d 88 S.Ct. “there are some contexts in which the risk that the will not, cannot, or great, consequences follow failure so vital to the instructions so defendant, practical ignored.” system and human limitations of the cannot be Im (See People v. Graham proper judicial presents comment on evidence such situation. 525, (1972) (1958) v. Archambault 677]; Commonwealth 156 528 P.2d 448 [319 72, 75].) Pa. 90 A.2d [290 10This has superseded far-reaching rule since been limitation on the federal trial more 389, (1933) United States v. Murdock power court’s In comment on the evidence. U.S. 381, 384-385, 223], prohibited L.Ed. 54 S.Ct. federal Supreme United States Court [78
judges
expressing opinions
from
to the
when all the facts of
case
except
as
of defendants
(See
Gant
“undisputed
only questions
and admitted” and
of law remain to be decided.
also
518,
(8th
1974)
521.)
v. United States
Cir.
506 F.2d
trial courts from
Prohibiting
on the evidence to a deadlocked
commenting
also
decision in
protects
salutary
this court’s
policies underlying
Gainer
The coercive nature of a trial court’s comments on the evidence to a dead- locked is jury only slightly different. The comments tend to the jurors compel to harmonize their views with those of the rather than with those of the judge, Nevertheless, the majority. ultimate effect of the conduct same as when the admonition to minority jurors given. accused is to highly likely be of the deprived right have his or guilt innocence determined the in- by vote of dependent each juror.
Thus, judicial comments to a deadlocked well circumvent if jury may not erode the safeguards Indeed, established this court in by Gainer. a trial court’s remark that the prosecution’s witnesses are more credible than those of the ac- cused is to have aрt an even coercive greater effect than an admonition to minority jurors reconsider their views in of the It follows then light majority. that a prohibition judicial comment to a deadlocked is not only consis- tent with Gainer but also necessary values identified that preserve (See decision. also Crowley P.2d 748].)
That the trial court’s comments deprived individual appellant judgment of each on the juror issue of his innocence is evident from the cir- Here, cumstances of this case. deliberated jurors for almost a and a half day without able being to reach a verdict on their own. Twice the forewoman in- dicated that further deliberations would be unfruitful. Ultimately, turned to the court deadlock, to resolve the for an on the asking оpinion credibility McManus and her The outcome of daughter.12 trial appellant’s on whether hinged believed these witnesses. prosecution 11 Gainer also found it error for inaccurately a trial court to jurors instruct deadlocked that if they (Ibid.) agree failed to to a verdict would case have to be retried. 12The record indicates jury’s request opinion credibility prosecu for an of the tion response witnesses was made in prior to the trial court’s remark that it was authorized to comment on the evidence. deadlock,
Rather than declare a mistrial to the due the trial court responded jurors’ and forceful comments on the evidence. The request lengthy court’s statements concerned of the wit- only сredibility prosecution nesses, but also identified a motive for have crime committed the appellant and informed the it the verdict believed should reached. comments,
Three times during trial court expressed witnesses These were prosecution was truthful. statements supported the court’s analysis extensive the same factors which the had been instructed to consider in previously assessing her McManus and daughter.
The trial court was also had to the emphatic explaining appellant reason to commit the “in offense. The found that fact charged appellant a motive to togo and tell her to knock it off” ap- since ha[d] [McManus’ home] “natural pellant’s inclination” was to in the murder protect his brothеr capital proceeding. *12 occasions, on three
Finally,
the trial court stated
that
separate
unequivocally
the
the
testimony
prosecution witnesses established that
had uttered
appellant
the
threats.
alleged
of the nature of
is the
Typical
following
these comments
statement of the judge.
satisfies this court
a reasonable
doubt
beyond
“[I]t
prosecution
established the
and therefore I would
necessary
[the
elements
has]
to arrive at a
in
willing
verdict
this matter.”
That the
relied on the
jury
court’s
its deadlock
evident
opinion
resolving
is
from the swiftness with which the
verdict
the
jury agreed
guilty
after
remarks
made.
were
It is
14
inconceivable that in the
minutes of further
deliberations the
had sufficient time to
either a
or
conduct
rational
evaluation of the
con
thorough
trial court’s
and reach an
opinion
independent
Thus,
clusion
the evidence.
did not function as the
and
concerning
sole
jury
exclusive arbiter of the
of the
or
witnesses and the
credibility
prosecution
guilt
innocence of
The trial court’s remarks exceeded the
appellant.
scope
proper
VI,
judicial comment
10 of article
and interfered with
permitted by
ap
section
Moore,
v.
40
pellant’s constitutional
to a
trial.
right
(People
supra,
is, therefore,
65-67.)
at
Reversal of
conviction
Cal.App.3d
pp.
appellant’s
67;
(Id., at
442
(1960)
cf.
v.
54 Cal.2d
mandatory.
People
Holmes
Witkin,
III. evidence, While section 10 of article VI comment on permits judicial it does not authorize the trial court to as the function ex usurp Brock, 650-651; clusive fact. trier of v. at (People supra, Cal.2d pp. People Moore, Flores, v. supra, 65-67; at Cal.App.3d supra, pp. 583-584.) pp. Comment a time when the is deadlocked is so to invade the likely such jury’s and control verdict that comment province must be deemed erroneous. judgment conviction is reversed. J., J.,*
Mosk, J., Broussard, concurred. Spencer, *13 KAUS, J. concur in the result. court bull good It is that the takes I horn and overrules the which its view dicta a trial court to on the permit express is, fact, ultimate the defendant in The Constitution question—whether guilty. of merely “comment evidence and the permits ” a witnesses. This is far from cry allowing intrusion at the ultimate mo ment of truth when each must ask he a reasonable juror himself whether has True, doubt concerning defendant’s courts must whether the guilt. evidence “could a a reasonable reasonably of support finding beyond 573, (Jackson 307, 560, v. (1979) doubt” 443 U.S. 318 Virginia L.Ed.2d [61 “ or, 2781]), formulation, S.Ct. in 99 the California ‘whether a reasonable trier Brock, (see 645; 13Contrary dicta People supra, prior contained in decisions v. 66 Cal.2d Friend, supra, v. therein) 50 p. Cal.2d at 578 and cases cited are overruled. This by today’s conclusion reached overwhelming is in the view accord with Archambault, (See, majority jurisdictions. supra, of other Commonwealth v. e.g., 290 A.2d 73; Comment, by Jury Power to Comment on the p. generally, see Guilt: Trial or Trial Issue of by Judge (1964) 440; Note, Judge’s Right Trial Comment Evidence 9 Vill.L.Rev. on Pertain- ing C.J.S., Capital Punishment 311, 311; Case (1959) 32 23 So.Cal.L.Rev. Offense Law, 993, 1022.) Criminal § *Assigned by Chairperson of the Judicial Council. 414
of could fact have found the sustained its burden prosecution proving ” (1980) defendant a guilty beyond reasonable doubt.’ v. 26 (People Johnson 557, Yet, 431, Cal.3d 738].) 576-578 P.2d 606 that saying [162 state of the evidence given reasonable in not a reason justifies juror having doubt, able is different from harbor quite that if he does such telling juror doubt, he tidiest, and the are in court The truth that the most disagreement. conclusive case prosecution contain undefinable which a flaws particular (In cannot reconcile with juror demanded standard constitutionally proof. (1970) 368, 373-375, re Winship U.S. 361-364 L.Ed.2d 90 S.Ct. [25 1068].) In the court Winship from Davis United States quoted approval 499, 507, U.S. L.Ed. S.Ct. “No man should 353]: of his life under the forms of deprived law unless the who him try conscience, able, upon their say before them ... evidence suffi cient to show beyond reasonable doubt the existence of fact necessary every (Italics constitute the crime charged.” added.) When a trial court departs from comments on evidence and credibility states its views on ultimate it question forbidden guilt, trespasses ground—the conscience each juror.1
On the other I hand cannot condemnation of join wholesale exercising of comment after a privilege deadlock has been reached. I sub- respеctfully mit that while a unanimous verdict after dramatically comment may prove comment, between in- power difference coercive effect postdeadlock tervention and real. In most predeliberation comment is more than apparent early cases comment—if it has avoids a deadlock from aris- any effect—simply in the first it ing place. say Therefore—if mattered—I would prefer but generally unsolicited and balanced comment power proper, temperate is not diminished been of deliber- by having before passed up beginning ations.2 *14 Justice, 1The American Bar Project Association on Minimum for while Standards Criminal evidence,
advocating given authority that trial be at courts the to summarize and on the comment position the same time ‘may suggest guilty takes the that court not not verdict “[t]he may nor guilty, directly the an express opinion court on the or innocence of the defen ” Justice, (ABA Project dant.’ Trial Relating on Minimum Standards for Criminal Standards 1968) 4.7(b)(ii), 126-127.) by Jury (Approved pp. Draft std. majority (1971) v. Flores 2The on Cal.App.3d Cal.Rptr. relies and 579 [95 138] People v. Moore 40 Cal.App.3d of a support its establishment 655] case, however, special barring rule postdeadlock all comment. In did the suggest neither court Instead, timing judicial that the of the the comment was the fatal flaw. both courts found that going beyond trial courts had erred in expressing a fair comment on the evidence and definite 583-588; (17 opinion question guilt. pp. ultimate at Cal.App.3d dеfendants’ 65-67.) addition, pp. at In the Moore trial court had misstated Cal.App.3d the facts in several (40 65.) respects. case, however, In this it does not matter. The court did not comment until after the had jury asked it to do expressly so. deny court the Why power to assist the when jury assistance is needed most—when the for jury asks In help? many cases where the court before the comments starts its jury deliberations, remarks at best or coercive at unhelpful worst. Where asks for least, we guidance alternative, know that the first need not us. worry
RICHARDSON, J., Concurring and Dissenting. concur the majority’s I that, case, conclusion in this the extent and nature of the trial comments judge’s invaded the improperly A must be jury’s judge’s comments sphere. scrupulous- fair and ly may role as thе exclusive of fact. When a usurp jury’s trier is deadlocked the chances that a comments on evidence af- judge’s may increased, fect the deliberations jury’s well and we should may rigorously scrutinize the judge’s remarks. Here the had been deadlocked. The probability court’s here statements affected the is improperly underscored by fact that only 14 minutes after the comments the well established deadlock dissolved and the arrived at an unanimous verdict. facts, Under these I therefore would find comments judge’s improperly would, intruded upon jury’s function as ultimate factfinder and accordingly, reverse the judgment. dissent, however,
I respectfully from the that a majority’s sweeping principle never judge may comment the evidencе when is upon deadlocked. This too far. The goes have in their people California ordained Constitution “The court make such comment the evidence and as any witness in its deter- necessary for proper (Cal. Const., VI, mination 10.) cause.” art. While compelled § courts, this acknowledge my constitutional to the trial col- grant authority add leagues nonetheless their own judicial the section language thereby contrast, narrow the extent In substantially trial court’s I would authority. retain the we case-by-case which have followed in con- approach historically claims such as sidering those herein advanced. The successful and consistent of this method is application demonstrated the cases cited amply majority.
We are here with presented a constitutional no containing internal provision limitations to when a not, as judge may comment on the evidence. We should advance, forever close the door comments at evidentiary any particular stage of trial. It entirely possible that under such different circumstances *15 comment might altogether I would avoid the broad appropriate. majority’s generalizations, resolution, our limit review to a case-by-case being able fairly factual variants which rise to the anticipate multiple give issue. I would Particularly, avoid our own limitations engrafting
wide procedural authorization which the themselves have in their people placed fundamental charter. J.,
Reynoso, concurred.