Opinion
Cr. 18836 19042
4-22-1971
The PEOPLE of the State of California, Plaintiff and Respondent, v. Billy J. COMPTON, Defendant and Appellant.
Richard E. Erwin, Public Defender, Donald G. Griffin, Deputy Public Defender, for defendant and appellant. Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Rodney Lilyquist, Jr., Deputy Atty. Gen., for plaintiff and respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Billy J. COMPTON, Defendant and Appellant.
April 22, 1971.
For Opinion on Hearing, see 98 Cal.Rptr. 217, 490 P.2d 537
Richard E. Erwin, Public Defender, Donald G. Griffin, Deputy Public Defender, for defendant and appellant.
Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Rodney Lilyquist, Jr., Deputy Atty. Gen., for plaintiff and respondent.
COMPTON, Associate Justice.
This appeal from a conviction after a jury trial of violation of Penal Code, section 288 (child molestation) and Penal Code, section 288a (oral copulation with a child under 14) presents the single narrow question of whether the defendant was twice placed in jeopardy for the same offense in contravention of the Constitutions of the United States and the State of California.
On October 16, 1969, a jury of 12 persons and an alternate were impaneled and sworn to try the defendant on these charges.
It is basic that at that moment defendant was placed in jeopardy.
On October 17, 1969, the taking of testimony began and by the end of the day the prosecution had completed the direct examination of one witness. The trial was adjourned over a weekend until October 21, 1969.
It appears that over the weekend the alternate juror visited a barber shop where unbeknownst to him the defendant's brother worked.
In a conversation with a Mr. Davis, one of the barbers, which conversation was overheard by defendant's brother, the alternate juror stated that he was a juror on the case and that 'he felt that there was older women that were prospective jurors that weren't picked because they would be hard to keep and open mind on a case such as this and what the people that selected the jury didn't know, that he felt the same way. * * * he didn't like to be on a case like this because it was hard to keep an open mind.'
When the court reconvened on the morning of October 21, 1969, defense counsel outside of the presence of the jury instituted a colloquy with the court, portions of which we feel were significant enough to quote verbatim from the reporter's transcript.
'THE COURT: All right, the record will show that the jury is absent. MR. RUSSELL: Your Honor, it has come to my attention that Mr. Paul Hamilton, the alternate juror in this case, has been discussing this case with people outside of this court and other than members of the jury. And when the case was called here this morning Mr. Purnell answered ready. I answered ready, the various members of the jury were present and in their various places and Mr. Hamilton did not see fit to indicate to the Court that he had discussed the case or that anyone had discussed the case with him as he was admonished to do, and I believe indicated he would do if such an event occurred. At this time I would request the Court to question Mr. Hamilton regarding his conversation with various people outside this Court concerning this case. THE COURT: Before I do that, I think it would be proper to have some evidence produced under sworn testimony as to who saw him and who heard him. Did you see this yourself, Mr. Russell, and are you prepared to testify that he, in fact, was discussing the merits of this case? MR. RUSSELL: No, your Honor. THE COURT: Do you have some witnesses who are? MR. RUSSELL: I do. THE COURT: All right, bring them. MR. RUSSELL: Thank you. THE COURT: Before we start in, what is the purpose of indicating this to me? What is your motion, a mistrial or--MR. RUSSELL: I don't have any motion. I simply want to advise the Court of what has happened. THE COURT: Well, do you think that it has happened to the extent that it is improper conversation, and, therefore, should result in a mistrial or that it's going to prejudice the defendant or has it been an innocent amount of discussion or do you not know the amount of discussion? MR. RUSSELL: Well, your Honor, I am a partisan. My view of the thing isn't necessarily an objective or intelligent view. All I want to do is apprise the Court of what has happened. * * *
THE COURT: He may have discussed the case. Do you think he discussed the merits of the case? MR. RUSSELL: I will produce witnesses, your Honor, who can testify as to what happened and where and when and I would suggest that at that time the Court will be in a position to determine whether or not these are innocent remarks or whether or not the remarks have some bearing--THE COURT: Let's examine this a minute, Mr. Russell. Should it not be--why take the time if there is not going to be any harm? If the remarks are innocent, fine. If they are not, then in that event the motion should be made. But should you not pursue that matter yourself first? MR. RUSSELL: What matter, your Honor? THE COURT: As to whether or not you feel the remarks are harmful or--MR. RUSSELL: I feel they are harmful, your Honor, or I wouldn't have advised the Court about this. * * * THE COURT: My question is this--let me stop you. I think there is a great difference between a man saying, 'Well, I'm on the case. I can't tell you about it. I can't talk to you about it, but it's a criminal matter, but I am not going to tell you anything about it. The courtroom is kind of stuffy. I get tired of sitting. The judge is kind of critical or the judge is easy going. The attorneys are using a lot of time,' but things like that are somewhat innocuous. * * * THE COURT: Well, do you have information that there's been more than that? MR. RUSSELL: Yes, your Honor. THE COURT: I see, that there's been a discussion of the merits of the case? MR. RUSSELL: Yes, your Honor. THE COURT: Well, I can see your position too, Mr. Russell, that as an officer of the court the juror might have been discussing it, even from a favorable point of view. MR. RUSSELL: But from my point of view, your Honor, this undermines one of the very basic premises of the jury system. This juror is trifling with my client's natural life. THE COURT: I follow that. If he's made up his mind, if he's discussing the merits of the case and is expressing an opinion, you may be correct. Do you have anything to say, Mr. Purnell? [The prosecutor.] I suppose we should take testimony about this.'
Following this the prosecutor suggested that there were certain obvious and inherent difficulties in questioning a juror because of the effect it might have on the juror's attitude, regardless of the outcome of the inquiry. However, he interposed no objection.
Subsequently, the barber, Mr. Davis, was sworn as a witness and testified to the conversation with the alternate juror. He was corroborated by defendant's brother.
The judge, after attempting to analyze the significance of the juror's conduct and the effect on the jury of excusing the alternate, then stated: 'What's your feeling? Would you be willing to continue with the remainder of the jury or do you feel that you would rather just get a whole new jury?' Defense counsel replied: 'Well, I don't know where we are now, your Honor, because you see, my visceral reaction is if this man will talk about it down at the barber shop, the poolhall or whatever other social activity he happens to be engaged in, he will talk about it to the other jurors. THE COURT: He may have dropped and inadvertent word here and there.'
After further colloquy the matter terminated with the following: 'THE COURT: I am convinced I think that's [declaring a mistrial] the only thing left to do. All right, the Court--now, do any of you have any strong abjections to what I am going to do? Let me know now, but I think that is the only recourse. MR. PURNELL: No comment your Honor. THE COURT: Mr. Russell, anything further? MR. RUSSELL: No, your Honor. THE COURT: The Court will declare a mistrial. Whether I have to do it in the presence of the jury, I don't think so. I will simply tell them they are excused and tell them for technical reasons the Court has to stop the trial and excuse them.' (Emphasis added.)
Subsequently, the jury was discharged and the case reset for trial before another judge.
On November 3, 1969, defendant moved to enter a plea of once in jeopardy, that motion was denied. The defendant was ultimately tried by another jury and this conviction and resultant appeal ensued.
At the outset it is apparent that if defendant's claim of double jeopardy is sustained, serious crimes will go unpunished. In this regard we consider the language of the court in Howard v. United States (9th Cir.) 372 F.2d 294, at 299, to be in point.
'The historically created policies sought to be served by the double jeopardy provisions written into the Constitutions of our various American jurisdictions are well known. For the purpose of this case, the only pertinent consideration is the policy of protecting the accused from harassment and from the physical, psychological and financial burden of successive prosecutions.
'But balanced against this most worthy objective is the countervailing social interest in preventing the guilty from escaping just punishment. This latter consideration must not be permitted such emphasis as to deprive an accused of the Constitutional safeguards, however, where potential harassment is at a minimum and unfairness to the defendant not persuasive, and where the probability of an improper acquittal is evident, the interest of society in convicting the guilty is entitled to great weight.' (Emphasis added.)
In the case now engaging our attention, the inconvenience to the defendant was negligible and unfairness or harassment non-existent. Only a portion of one day's testimony from one witness had been received.
There is no indication that defendant had gained, from the testimony, any advantage that was lost to him as a result of the mistrial.
It is generally stated that once jeopardy has attached by the swearing of a jury, that jury cannot be discharges except for legal necessity or at the request of or with the consent of the defendant. (Curry v. Superior Court, 2 Cal.3d 707, 87 Cal.Rptr. 361, 470 P.2d 345.)
Thus, the constitutional protection against double jeopardy is not absolute. It may be waived by the defendant or its application subjected to limited and reasonable judicial restrictions.
These concepts of waiver and judicial restrictions have commanded the attention of appellate courts on numerous occasions. As a result various expressions of their proper application are to be found in the reported cases.
Defendant cites Cases, principally that of Curry v. Superior Court, supra, in support of his contention that the facts here fail to disclose neither 'legal necessity' nor a waiver or consent on his part. We feel it safe to say that the cited authorities including those we set out here can only expose general basic principles and examples of specialized applications. Curry, the most recent pronouncement of our Supreme Court, is clearly distinguishable on its facts from our case here.
We find the following authorities helpful in pointing our way to a proper resolution of this case.
'Thus, under existing law a juror [or a jury] may be discharged, without jeopardy attaching, if 'good cause' for the discharge exists. What constitutes 'good cause' by necessity, rests largely in the discretion of the trial court. * * * it is within the power of the trial court to discharge the jury in a criminal action for any misconduct or disqualification of one or more of its members which is of such a character as to render the discharge necessary in order to prevent the frustration of the ends of justice, * * * (38 A.L.R. 796.)' (In re Devlin, 139 Cal.App.2d 810, 812, 813, 294P.2d 466, 467, 468.)
In a case dealing with a situation somewhat similar to the case at bar, where the trial court had declared a mistrial and defendant's counsel had not specifically requested it, equivocal language used by defense counsel was viewed by the Court of Appeal as being 'such as would naturally lead the court to believe that the defendant consented to a mistrial order.' (People v. Kelly, 132 Cal.App. 118, 123, 22 P.2d 526, 528.) The court further said, 'Even if the statements made [by counsel] are capable of a double construction, they should be viewed in the light of the circumstances in which they were uttered and with a view of determining what was intended. Thus viewed, we think the statements made were such as to justify the court in believing that an order of mistrial was consented to.' (Kelly, supra, at p. 123, 22 P.2d at p. 528.)
In People v. Huff, 255 Cal.App.2d 443, 63 Cal.Rptr. 317, this court found that the trial judge had abused his discretion in discharging a jury on the grounds that the defendant had been observed, during a recess, talking to two of the jurors. It is significant, however, that great emphasis was placed on the fact that the defendant and his counsel had not been permitted to present their views and participate in the hearing before the judge made his ruling.
A synthesis of these cited cases in the light of Curry leads to a conclusion that a trial court may, consistent with the philosophy of the prohibition against double jeopardy, discharge a jury when, after giving the defendant an opportunity to be heard on the issue, it finds in the interest of providing the defendant a fair trial, 'good cause' for the discharge or 'good reason' to believe the defendant desires or consents thereto. Further, when there is substantial evidence to support such findings an appellate court will not disturb them.
In the case at bar if we were to look at the juror's misconduct in the abstract or in conjunction with an objection to a mistrial by the defendant the evidence of a 'legal necessity' for discharging the jury is arguably inadequate.
However, there was no objection by the defendant and the trial judge was not dealing in the abstract. Defense counsel apparently thought enough of the matter to bring it to the trial court's attention and embellish the problem with such comments as (1) 'I feel they [the juror's remarks] are harmful, your Honor, or I wouldn't have advised the Court about this.' (Emphasis added.) (2) 'But from my point of view, your Honor, this undermines one of the very basic premises of the jury system. This juror is trifling with my client's natural life.' (3) '[M]y visceral reaction is if this man [the juror] will talk about it down at the barber shop, the poolhall or whatever social activity he happens to be engaged in, he will talk about it to the other jurors.' (Emphasis added.)
Having suggested the existence of a legal 'emergency' it ill-becomes the defense to now suggest that the judge should have cavalierly rejected any notion that there existed some legal 'necessity' for corrective action.
Contrary to the precipitous action which was condemned in Huff, the judge here agonized over the problem and invited participation and comment from defense counsel. The paraphrased reply was 'nothing further, your Honor.'
We do not interpret Curry as requiring a personal waiver or consent by the defendant. Trial counsel controls the litigation.
'In the procedures of a contested criminal case * * * our law contemplates that the principal officers of the court shall comprise three categories; the judge, the state's attorney, and the counsel for the defendant. * * * The very fact that each of opposing counsel is dedicated, within the high obligations of his profession, to protect the interests of his client and at the same time to 'maintain the respect due to the courts of justice and judicial officers' [citation] should provide the questing judge with a ready source of help in his difficult problems.' (Cooper v. Superior Court, 55 Cal.2d 291, 301-302, 10 Cal. Rptr. 842, 848-849, 359 P.2d 274, 280-281.) (Emphasis added.)
The record here portrays the picture of a conscientious judge, solicitous of defendant's interests in a fair trial, wrestling with a delicate dilemma thrust upon him by defense counsel. When in his 'quest' he turned to an 'officer of the court' whom our Supreme Court says should be a 'ready source of help' the result was wary equivocation.
Any counsel who would don the mantle of an 'officer of the court' must assume the responsibility that goes with that appellation. The very minimum ingredient of the responsibility is a duty not to 'play games' with the court.
When another superior court judge ruled on defendant's motion to enter the plea of once in jeopardy he concluded, '* * * that the proper interpretation to be placed on this melodrama is that the Judge was affording to the defendant opportunity to object to the proposed mistrial. And when adding that to the fact that the entire dilemma was brought up by the defendant and the fact that the defendant through his counsel indicated the problem in interrogating the jurors, I think that all read together must be held to have been an implied consent to the granting of a mistrial.' We agree.
The evidence was clearly sufficient to support the findings and conclusions of the judges below, to the effect that defendant consented to the discharge of the jury.
The judgment is affirmed.
ROTH, P. J., and HERNDON, J., concur.