THE PEOPLE, Plaintiff and Respondent, v. DUANE HOLLOWAY, Defendant and Appellant.
No. S004695. Crim. No. 24659
Supreme Court of California
May 31, 1990
50 Cal.3d 1098
Louis N. Hiken, under appointment by the Supreme Court, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PANELLI, J.---Defendant was convicted of the first degree murders (
As explained hereafter, we conclude that the judgment of guilt must be reversed for jury misconduct. For guidance on retrial we nevertheless discuss the ruling on the motion to suppress defendant’s statements to the police.
GUILT PHASE FACTS
A. Prosecution Case.
Diane Pencin and her younger sister, Debra Cimmino (Debbie), lived together in a townhouse in Sacramento. Their parents, Mike and Lorie Cimmino, lived about one block away and kept in close touch with their daughters. The sisters were very security conscious; there was a burglar alarm in the residence, which included a panic button.
On Saturday, March 19, 1983, Diane and her father went to a movie together. About 11:30 p.m. that evening Lorie Cimmino talked to her daughter Debbie on the telephone and indicated that she might come over the next afternoon. She had a change of plans and did not go there on Sunday. Lorie Cimmino’s telephone conversation was the last contact anyone had with the sisters.
On Monday, March 21, Connie Greer, a friend of Debbie Cimmino’s, received a call from Debbie’s employer asking if she knew where Debbie was. Greer drove over to the Pencin-Cimmino townhouse to look for Debbie. When she arrived she noticed Diane’s car parked in front; this seemed strange since it was a workday. She also noticed that the Sunday and Monday newspapers were still lying on the walkway. After receiving no answer at the door and being unable to open it, Greer walked around to the carport where Debbie’s car was parked. The car was unlocked. She opened the door and discovered Debbie Cimmino’s body in the rear seat underneath a pile of blankets and clothing. Greer ran to her aunt’s house nearby and called for help.
Connie Greer was present when fire department paramedics and sheriff’s deputies arrived. The first deputy on the scene concluded that a homicide had been committed and summoned detectives. He then entered the townhouse to look for Diane Pencin. He discovered Diane’s nude body on the bed in the rear bedroom; the corpse was in rigor and very cold.
The autopsy of Debbie Cimmino revealed that she had numerous defensive wounds on her hands. The cause of death was manual strangulation. Vaginal and rectal swabs revealed no evidence of sperm. There was a small injury or tear to the entrance of the vagina; there was also some bruising. The tearing had occurred within a few hours of the victim’s death.
Detective Reed investigated the townhouse where Diane Pencin’s body was found. There were no signs of forced entry. The telephone in the kitchen had been disconnected from the wall. Two knives were lying on the floor near the bed containing Diane’s body. One knife had blood on it. Nothing in the house appeared to be missing, and there were no signs of a struggle. Both cords for the telephone in the bedroom were missing. Diane’s body was lying naked on the bed; her pajamas were mixed up with the bedspread on the floor. Her body had multiple stab wounds, bruising on her ankles and marks on her neck.
The autopsy of Diane Pencin revealed that she had at least six stab wounds and two smaller puncture wounds. She was alive when the wounds were inflicted. There were ligature marks on her wrists and possibly on her throat. There were no signs of trauma to her genitalia, nor was there any sperm present. The cause of death was multiple stab wounds in association with strangulation.
The two victims’ niece had spent Friday and Saturday, March 18 and 19, with the victims at their townhouse. She and Debbie had washed and cleaned the interior and exterior of Debbie’s car on Saturday morning, March 19. Diane had driven her home about 3 p.m. that day.
On March 21, the day the bodies were found, detectives spoke to Robert Cruz, a friend of defendant’s. Cruz had picked up defendant at his father’s house about 4 p.m. on Saturday, March 19. They watched television and drank beer at Cruz’s apartment until about 4 a.m. when Cruz drove defendant to defendant’s father’s house.
Around 8 a.m., Sunday, March 20, defendant called Cruz and told him that if anyone asked he was to say that he dropped defendant off at his
Officers interviewed defendant about 7:25 p.m. on March 21, 1983. Defendant said he had met Debbie in junior high school, had written to her after he had left school, had visited with her at his father’s house several times, but was not “in love” with her. On the afternoon of Saturday, March 19, defendant went with his friend Robert Cruz and spent the night at the latter’s apartment. Cruz drove defendant to his mother’s house about 7 a.m. on Sunday. Defendant said he had no idea why anyone would want to kill Debbie and Diane.
Defendant was interviewed again on March 22, 1983, after Robert Cruz had informed him that he had told the truth. This time defendant said Cruz had dropped him off at his father’s house at 3 or 4 a.m. Nobody was there, so he walked to a store and tried to call his father and a friend. No one answered, so he walked to his mother’s house. When passing the Chandler Street area (the victims’ street), defendant heard the sound of breaking glass and a woman screaming. When he arrived at his mother’s house he called Cruz and asked him to give the false story; defendant did not want to be connected with the scream and broken glass. Defendant said he had been in Debbie’s house and car a number of times; the last time he was in her car was about a month before. He had been in the townhouse in early March. Defendant explained that he had scratches on his side and knees from playing handball. At the end of the interview defendant admitted he had gone to Debbie’s house to use the telephone. Both sisters answered the door. He remembered nothing else except that Debbie was screaming in the carport.
An identification technician testified that defendant’s fingerprints were found in the following places: (1) at four spots on the outside of Debbie’s car; (2) inside the car on the backseat backrest; (3) on the telephone lying on the bed where Diane’s body was found; and (4) on the doorjamb of the other bedroom.
B. Defense Case.
Defendant did not testify in his own behalf. A friend testified that on the day of defendant’s arrest they had played a “high intensity” game of hand-
A friend of Debbie Cimmino, Chris Caico, testified that she and Debbie had a lesbian relationship that had broken up. The testimony was introduced by way of a court reporter reading aloud testimony given by Caico in an earlier hearing out of the presence of the jury.
ISSUES
A. Jury Misconduct.
Defendant contends that jury misconduct during the guilt phase of the trial requires reversal of the judgment. We reluctantly agree. When the misconduct came to light, defendant moved for a mistrial. The court denied it, as well as a later motion for new trial on the ground of jury misconduct.
At the beginning of the trial the court had admonished the jurors to refrain from reading newspaper articles or listening to other media reports about the case. The court warned the jurors about the possibility of a mistrial resulting from corruption by outside influences and urged them to do their best to avoid it.
In addition, the court and all counsel went to great lengths to ensure that the jurors did not hear any evidence about defendant’s prior criminal history. Before jury selection the court ruled under
Despite these efforts, it was discovered shortly after the jury returned its verdicts in the guilt phase that one of the jurors, Juror Beck, had read a newspaper article on January 23, 1985, the second day of trial, stating that defendant was on parole from prison after having served time for assaulting a Sacramento woman with a hammer. Juror Beck had known this information throughout the trial and, according to him, had kept it to himself until after the jurors had signed their guilt phase verdicts.
The information came to light when another juror, Juror Gravier, telephoned the court clerk on April 1, 1985, five days after the guilt verdicts had been returned, to report that one of the jurors had mentioned after deliberations had been completed that he had knowledge of a possible prior
After consulting with counsel, the court brought in Juror Gravier for further inquiry. Gravier stated that after the verdict forms had been signed but before the jury had been summoned to return to court, the jurors were conversing. Juror Beck had said to several other jurors that he was glad the deliberations were over because he had been afraid he might accidentally reveal that he had read that defendant had previously assaulted a woman with a hammer. Juror Gravier thought that the comment had been directed to Juror Baril.
The court then brought in Juror Beck for inquiry. Juror Beck stated that he had read a newspaper article indicating that defendant previously had been convicted of assaulting a woman with a hammer. After further investigation the parties were able to stipulate that the article was in the Sacramento Bee on January 23, 1985, after the prosecutor had made his opening statement. The last paragraph of the article read: “At the time of his arrest, Holloway was on parole from prison after serving time for assaulting a Sacramento woman with a hammer.”
Beck said that at the time he read the article, he was aware of the court’s admonition to refrain from reading press reports about the trial. He remembered thinking that he had “blown it,” and he wished he had never seen the article. Nevertheless, he made no mention of having read the article until after the jury had finished its guilt phase deliberations.
Juror Baril was identified as one of the jurors to whom Juror Beck had been talking. Inquiry of her revealed that she remembered sitting next to Juror Beck after deliberations and hearing some speculation about what defendant had been doing since high school. She did not, however, remember any specific discussion.
Counsel agreed not to question any of the remaining nine jurors. Following argument by counsel, the court denied a motion for mistrial without prejudice.
Defendant raised the issue of jury misconduct again in his motion for a new trial. In discussing the motion, the court acknowledged that there were two questions: (1) Was it misconduct? (2) If so, was it prejudicial? Taking the second question first, the court focused on the impact of Juror Beck’s communication of the information to the other jurors, noting that if the verdicts had changed thereafter, he would immediately have granted a mistrial. Turning to the first question, the court stated that it had found no
The court’s ruling was erroneous in several respects. As we shall explain, it erred in finding that there was no misconduct. It also erred in its analysis of the question of prejudice by failing to consider the effect of having one juror sit through the entire trial with secret and improper knowledge of defendant’s prior record. Although the court’s general admonition against reading newspapers did not include an instruction to report any such activity, the court had asked Juror Beck during voir dire to let it know if Beck later remembered having read anything else about the crime.2
It is well settled that it is misconduct for a juror to read newspaper accounts of a case on which he is sitting, and the People so concede. (People v. Lambright (1964) 61 Cal.2d 482, 486; People v. Wong Loung (1911) 159 Cal. 520, 525-527; People v. Stokes (1894) 103 Cal. 193, 196-200; People v. McCoy (1886) 71 Cal. 395, 397.) “There is no doubt . . . that the reading of newspapers by jurors, while engaged in the trial of a cause, is an inattention to duty which ought to be promptly corrected; and if the newspaper contains any matter in connection with the subject-matter of the trial which would be at all likely to influence jurors in the performance of duty, the act would constitute ground for a motion for a new trial. Jurors in a criminal action are sworn to render a true verdict according to the evidence. They cannot, under the oath which they take, receive impressions from any other source.” (People v. McCoy, supra, 71 Cal. at p. 397.)
It is equally well settled that such juror misconduct raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted. (People v. Honeycutt (1977) 20 Cal.3d 150, 156; People v. Wong Loung, supra, 159 Cal. at pp. 527-529; People v. Conkling (1896) 111 Cal. 616, 628.) As early as 1896, we said, “when misconduct of jurors is shown, it is presumed to be injurious to defendant, unless the contrary appears.” (Id.;
“The presumption of prejudice is an evidentiary aid to those parties who are able to establish serious misconduct of a type likely to have had an effect on the verdict or which deprived the complaining party of thorough consideration of his case, yet who are unable to establish by a preponderance of the evidence that actual prejudice occurred. The law thus recognizes the substantial barrier to proof of prejudice which
Until recently it was unclear what standard should be applied in criminal cases to determine whether the presumption of prejudice has been rebutted. In People v. Marshall, ante, 907, at pages 950-951, however, we held that the analysis set forth in the American Bar Association Standards for Criminal Justice should be followed. A verdict of guilty must be reversed or vacated “whenever . . . the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury.” (2 ABA Standards for Criminal Justice, std. 8-3.7 (2d ed. 1980) p. 8.57.)
“The ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test, an objective standard. In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror.” (2 ABA Standards for Criminal Justice, supra, std. 8-3.7, Commentary, p. 8.58.)
There are, of course, cases in which the presumed prejudice has been found rebutted. In People v. Sutter (1982) 134 Cal.App.3d 806, 820-821, for example, the presumption of prejudice was found rebutted because the evidence from the juror’s improper visit to the crime scene added nothing contradictory to the evidence at trial and there was no issue relating to the scene of the crime.
The present case, however, is an entirely different matter. There is no doubt that serious misconduct occurred, regardless of whether the reading of the article was inadvertent or intentional. (People v. Andrews (1983) 149 Cal.App.3d 358, 363.) The content of the article was extremely prejudicial; it revealed information about defendant’s prior criminal conduct that the court had ruled inadmissible because of its potential for prejudice. The court and counsel had gone to great lengths to avoid having the jury learn of defendant’s prior conviction for having assaulted a woman with a hammer. Their efforts were to no avail as to one juror—a fact that they did not learn until after it was too late to take any curative steps.
The present situation is similar to that in People v. Thomas (1975) 47 Cal.App.3d 178 and People v. Andrews, supra, 149 Cal.App.3d 358. In Thomas, several jurors read a newspaper article stating that a codefendant had pleaded guilty and been sentenced. The Court of Appeal held that the trial court should have granted the defense motion for a mistrial. In Andrews, a newspaper article stating that the codefendant had pleaded guilty was inadvertently sent to the jury room during deliberations and read by at least six jurors. The trial court refused to question the jury and denied a motion for a new trial. The Court of Appeal reversed, stating that the preferred procedure in such cases “is to question the jurors in
In attempting to rebut the presumption of prejudice in the present case, the People follow the reasoning employed by the trial court in denying the motion for a new trial. They argue that Juror Beck did not disclose the offending information to any other jurors before or during deliberations and that the court had carefully admonished the jury not to read or listen to media reports about the case. The argument misses the point. We agree that the 11 other jurors were not contaminated, but we cannot overlook the fact that 1 juror went through the entire guilt phase contaminated by knowledge of what had been judicially determined to be inadmissible and prejudicial information. His silence exacerbated matters because it prevented the court and counsel from taking any action to remedy the situation. Thus, the defense had no opportunity to request curative measures such as the replacement of the tainted juror with an alternate or a limiting instruction or admonition. (Cf. People v. Craig (1978) 86 Cal.App.3d 905, 919 [immediate admonishment cured potential prejudice]; People v. Harper (1986) 186 Cal.App.3d 1420, 1426-1430 [prompt admonition not to consider definitions from dictionary rebutted presumption of prejudice].) Instead, the defense went through the entire guilt phase thinking that the jury was unaware of defendant’s prior record when in fact one juror had such knowledge. We cannot say at this point that Juror Beck’s improper knowledge had no impact. Although we know he was not the foreperson of the jury, we do not know, and may not discover under
Under the circumstances, we are unable to conclude that the presumption of prejudice has been rebutted. Our conclusion might have been
Defendant was entitled to be tried by 12, not 11, impartial and unprejudiced jurors. “Because a defendant charged with crime has a right to the unanimous verdict of 12 impartial jurors (People v. Wheeler (1978) 22 Cal.3d 258, 265-266), it is settled that a conviction cannot stand if even a single juror has been improperly influenced.” (People v. Pierce, supra, 24 Cal.3d at p. 208; see also In re Stankewitz (1985) 40 Cal.3d 391, 403.) Accordingly, we hold that the judgment must be reversed for jury misconduct.
B. Alleged Miranda Error.
Because the issue will arise on retrial we address defendant’s claim that the court erred in denying his motion to suppress statements he made to the police on March 21 and 22, 1983, and evidence derived therefrom. Defendant brought a common law motion to suppress alleging violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 for failure to give warnings before the March 21 interview and a
At the hearing on the motion Lieutenant Hash testified that during the course of his investigation on March 21, after the bodies were discovered, he was informed that defendant may have been a boyfriend of one of the victims and also that he was an ex-convict. Hash learned that defendant was
When Dean and Hash arrived at the parole office about 6:34 p.m., they found defendant seated and handcuffed. Lieutenant Hash was surprised to see the handcuffs and asked the parole officer to remove them. Hash explained that he would like to talk to defendant downtown, and defendant indicated that he understood and that he would voluntarily come to the sheriff’s station. The officers offered defendant the option of driving himself there, but when defendant said he had come with a friend they told defendant they would give him a ride home afterward if his friend did not want to accompany him. Lieutenant Hash testified that defendant would have been free to leave if he had so desired.
Before taking defendant to the station, the officers patted him down for weapons. They put him in the backseat of the unmarked car, unhandcuffed. They arrived at the sheriff’s station about 7 p.m. and interviewed defendant for about two hours. Defendant was advised that he was not a suspect at that time. Lieutenant Hash testified that they did not think they had probable cause to arrest defendant, but that defendant was a suspect in the same sense that many people were at that point. During this interview defendant gave his alibi involving Robert Cruz. At no time during the interview was defendant advised of his Miranda rights. Unbeknownst to defendant the interview was tape-recorded and broadcast over a “squawk box.” Defendant agreed to take a polygraph examination and provide a set of fingerprints. Defendant was given Miranda warnings before taking the polygraph examination. Defendant’s alibi was corroborated, his polygraph examination indicated no deception, and defendant was driven home about 1 a.m., March 22.
Defendant testified that when he agreed to go downtown with the officers, he had not felt that he had a choice. When he was at the station he had not felt that he was free to leave the interview room and go home, and this was not due to the fact that he had no ride home.
Later that day, March 22, Lieutenant Hash went to defendant’s home to speak to him about the false alibi he had asked Cruz to supply. They brought defendant’s parole officer with them so they could conduct a parole search. Defendant said he had been trying to reach them and agreed to go with them to the sheriff’s station. At the station defendant was advised of
The trial court suppressed everything in the March 22 statement after defendant’s initial indication that he desired an attorney. It ultimately denied suppression of the March 21 statement and the beginning portion of the March 22 statement. It did, however, order that the statements be sanitized to delete references to defendant’s prior conviction, prison commitment, and parole.
In denying suppression of the March 21 statement and a portion of the March 22 statement, the court ruled that defendant had not been in custody for purposes of Fourth Amendment or Fifth Amendment protection. The court reasoned that the initial coerciveness arising from the parole officer’s act of handcuffing defendant was attenuated by the officers’ prompt request for removal of the handcuffs and their noninvolvement in the decision to handcuff defendant. The officers were not overbearing in any way, and though defendant testified that he had not felt he had a choice, he also testified that he had not seen any reason not to go. The court also noted that the questioning had been gentlemanly and not coercive.
Defendant contends that he was in custody for purposes of the Fourth and Fifth Amendments. He relies primarily on People v. Boyer (1989) 48 Cal.3d 247, 267-268, contending that the facts of Boyer are strikingly similar to those here. We agree that there are similarities, but we find the situation here different in significant respects and affirm the trial court’s ruling.
In Boyer, four police officers in plain clothes and unmarked cars went to the defendant’s home seeking a voluntary interview. They deemed him a suspect but did not have probable cause to arrest him. Two officers were posted at the rear of the house to detain the defendant if he attempted to flee when the other two officers knocked at the front door. The defendant emerged from the back door after the officers knocked at the front door and spoke with a woman. The officers stopped the defendant, identified themselves and said that they would like to speak with him. The defendant agreed to come to the police station for an interview and was accompanied by officers while he went in the house to change clothes. The defendant was
The situation in the present case, by contrast, was considerably more benign and much less coercive. Leaving aside the initial handcuffing of defendant, for which the officers may not reasonably be held responsible, the circumstances of the officers’ request for an interview did not carry the indicia of coercion that were present in Boyer, supra, 48 Cal.3d 247. Second, attention had not focused on defendant as a suspect; he was merely one of many persons being questioned. Third, no Miranda warnings were given since defendant was not considered a suspect. Fourth, the questioning was not aggressive or accusatory. These factors, in our view, serve to distinguish the situation from that in Boyer and convince us that the trial court was correct in concluding that defendant was not in custody for purposes of Fourth or Fifth Amendment protections at the time the challenged statements were made.
We believe the facts here are closer to those in California v. Beheler (1983) 463 U.S. 1121 and Oregon v. Mathiason (1977) 429 U.S. 492, 495 than they are to Boyer. In both Beheler and Mathiason, the defendants agreed to come to the police station for an interview. Though they were suspects, they were told that they were not under arrest but that any statement they made would be evaluated by the district attorney. Both interviews lasted about 30 minutes, and the defendants then left. The United States Supreme Court held that neither defendant was “in custody” within the meaning of Miranda. The court noted that “[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it . . . . But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’” (Oregon v. Mathiason, supra, 429 U.S. at p. 495.)
In addition to the substantive challenge, defendant also challenges the trial court’s ruling on procedural grounds. He contends the record is
Defendant also contends that the unreported argument in chambers violated his right to be present at all stages of the proceedings pursuant to
Defendant has not met his burden of showing prejudice. The settled statement reveals that the only matters discussed were legal arguments about the court’s intended ruling, its ramifications, relevant authorities, and the question of which evidence was derivative. Given the nature of the discussion, defendant’s presence was not necessary to protect his interests.
Defendant further contends that the court’s ruling was based on improper considerations regarding the ramifications of suppression of the statements. The authorities he cites, however, do not support defendant’s premise that it is improper for the court to consider the effect of its ruling on derivative evidence. The record shows that the court initially indicated that it intended to rule that the March 21 statement and the latter part of the March 22 statement were inadmissible. The court described its rambling ruling as “something in the nature of an announcement of intended decision.” In the course of explaining its intended ruling, the court indicated that it was “bending over backwards to keep out pre-Mirandized state-
CONCLUSION
The judgment is reversed in its entirety.
Lucas, C. J., Broussard, J., Eagleson, J., Kennard, J., and Arabian, J., concurred.
MOSK, J., Concurring—I concur in the judgment. I join the majority in concluding that prejudicial juror misconduct occurred at the guilt phase of defendant’s trial.
Thereafter, I part company with them: there is no need to proceed further. On retrial, I am sure, the prosecution and defense will fully relitigate the claimed Miranda violations (Miranda v. Arizona (1966) 384 U.S. 436). This is now inevitable since a majority held in People v. Mattson, ante, 826, at pages 848-869, that a previous ruling by this court on the admissibility of evidence is not controlling on the trial court in a subsequent retrial. Therefore, whatever “guidance” is contained in the majority’s discussion is likely to do little more than help the parties “prepare” their witnesses.