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People v. Fulgham

California Court of Appeals, Third District, Sacramento
Sep 9, 2008
No. C057526 (Cal. Ct. App. Sep. 9, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. LENNARD ARTHUR FULGHAM, Defendant and Appellant. C057526 California Court of Appeal, Third District, Sacramento September 9, 2008

NOT TO BE PUBLISHED

Super. Ct. No. 02F09988

CANTIL-SAKAUYE, J.

A jury convicted defendant Lennard Arthur Fulgham of possession of a controlled substance (heroin) in a state prison. (Pen. Code, § 4573.6.) Defendant waived his right to jury trial on the allegation of a prior serious felony conviction and the trial court found it to be true. The trial court sentenced defendant to six years in state prison, consisting of the middle term of three years doubled by defendant’s strike prior. The sentence was ordered to run consecutively to defendant’s existing prison sentence.

Hereafter, undesignated statutory references are to the Penal Code.

The trial court granted the prosecution’s motion to dismiss allegations of two other prior convictions. The jury deadlocked on a charge of bringing a controlled substance into prison (§ 4573) and a mistrial was declared as to that count.

On appeal, defendant claims the trial court erred in denying his motion to suppress (§ 1538.5) because the contraband search conducted by prison officials was cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, rendering the search unreasonable under the Fourth Amendment. Defendant also contends a juror committed misconduct by text messaging throughout the trial and by sleeping, instead of listening to the testimony. Defendant claims the misconduct created a presumption of prejudice that was not rebutted, requiring reversal. Disagreeing with defendant’s claims, we shall affirm the judgment.

FACTUAL BACKGROUND

Kenneth Coombs, a correctional officer at Folsom State Prison working as a drug interdiction officer, testified a common method of passing drugs to inmates involves a visitor putting contraband in their mouth and then passing the contraband to an inmate during a kiss. The inmate swallows the contraband, usually contained in a balloon or condom, and later retrieves it by vomiting or defecating it out.

In April 2002, Coombs was monitoring cameras focused on the visiting areas of Folsom State Prison. At approximately 2:00 p.m., he observed a female coming out of the bathroom, holding a bag in her hand. She put something in her mouth and then gave defendant an open-mouthed passionate kiss. Immediately after the kiss, defendant glanced toward the officer’s station and then without talking or opening his mouth, he grabbed a soda and took a couple of drinks. Based on his training and experience, Coombs believed contraband had been passed to defendant. When defendant was questioned, defendant said the visitor was his girlfriend. The woman indicated on her visitor’s application that she was defendant’s niece.

Coombs, with his sergeant’s approval, placed defendant on a contraband watch. On contraband watch, defendant was subjected to an unclothed body search and then dressed in two layers of boxers and two layers of prison jumpsuits, taped at the arms, waist, thighs and ankles and secured with waist and ankle chains, to prevent defendant’s ability to hide or dispose of any contraband coming from his body. Defendant was placed in a cell with an officer monitoring him constantly. Each time defendant needed to urinate or defecate, a supervisor was called, defendant’s clothing was removed, and defendant was required to use a toilet with a bucket, lined with a plastic bag, underneath. The officers would search any feces for contraband. On a contraband watch, the inmate would be released after three clean bowel movements.

Defendant’s first bowel movement was clean. However, in defendant’s second bowel movement, Officer Ingersoll found a marble-sized lump that turned out to be a green balloon containing a black substance. When defendant completed his third bowel movement, defendant looked down into the bucket and, according to Correctional Officer James Meyers, said: “There’s the two blues; that’s all I’ve got.” Sergeant Robert Hannaford heard defendant say: “That’s all I’ve got. There isn’t anything else.” The officers recovered two round balloons from defendant’s feces.

The material in the three balloons was removed, weighed and tested by the Sacramento County Laboratory of Forensic Services. The material was determined to be heroin in the amounts of .40 grams, .11 grams, and .42 grams. According to Correctional Officer Don Jones, these amounts of heroin were useable amounts.

Defendant testified on his own behalf. He denied he swallowed or otherwise had contraband on him. He claimed someone else must have put the balloons of heroin in his feces. Defendant testified he was the founder of “Kumi 415,” an organization defendant claimed was designed to educate and encourage younger inmates to be productive, although he acknowledged some people considered the organization a prison gang. Defendant said he was called upon to mediate racial and rival gang problems and had developed a good rapport with the associate warden. Defendant believed it angered some lower ranking officers that he was allowed direct contact with the associate warden. However, defendant admitted Hannaford and the sergeant supervising Ingersoll were “real decent people” and that they were “fair.”

On rebuttal, the five testifying officers involved in defendant’s contraband watch denied planting the heroin in defendant’s feces.

DISCUSSION

I.

The Trial Court Did Not Err In Denying Defendant’s Motion To Suppress

Defendant filed a motion to suppress evidence pursuant to section 1538.5. Defendant claimed the contraband watch conducted by the correctional officers was abusive and unreasonable because his health problems require him to urinate frequently, resulting in his being taped and re-taped more than 35 times over the course of the three-day watch. A hearing was held on defendant’s motion prior to trial and defendant’s motion was denied.

A. The Hearing On Defendant’s Motion To Suppress

Coombs testified to the events in the visiting area of Folsom prison on April 4, 2002, which we have described above, resulting in defendant being placed on a contraband watch.

Coombs described a contraband watch as follows. When an inmate is suspected of swallowing or secreting contraband in their body, an unclothed body search is conducted. After that, a pair of boxers is placed on the inmate going forward in the normal way. The boxers are taped around the waist and around each thigh. A second pair of boxers are placed on the inmate going backwards and taped in the same fashion. Then a jumpsuit is placed on the inmate. It is taped at the arms, waist, thighs, and ankles. A second jumpsuit is placed backwards on the inmate and taped in the same way. Coombs testified he commonly would make a slit in the back of the second jumpsuit so that it would not ride very high on the inmate. Coombs estimated this dressing and taping process would take five to six minutes. The inmate then is secured with waist, hand, and ankle chains and placed in a holding cell under constant surveillance. When the inmate needs to go to the bathroom, he lets the officer know. The officer calls the sergeant, who comes to supervise the untaping of the jumpsuits and boxers. The inmate urinates or defecates using a portable toilet seat over a bucket containing a plastic bag. After three clean bowel movements, the inmate can be released from contraband watch.

In this case Coombs asked defendant if he had received anything from his visitor; defendant said he had not. Coombs did the initial unclothed body search of defendant, dressed him for the contraband watch, and placed him in the designated cell. Defendant asked to be X-rayed and Coombs called his supervisor to see if that was an option. Coombs testified X-raying inmates was not the process at Folsom prison. Coombs acknowledged it was possible to physically restrain an inmate, by for example cuffing him to a bed, to monitor his defecation, but it was not the system used at Folsom prison. The trial court asked if the medical department ever administered laxatives. Coombs did not know.

Ingersoll testified at the hearing on defendant’s motion to suppress that he was the correctional officer observing defendant on contraband watch on April 5, 2002. At 3:30 p.m., defendant said he needed to have a bowel movement. Ingersoll called the supervisor, who came down to assist Ingersoll. Ingersoll removed the tape and took off defendant’s clothes to the point where he could sit down and go to the bathroom. Ingersoll found a green balloon in defendant’s feces.

Ingersoll testified no tape was ever placed on the skin, only the clothes. Both Coombs and Ingersoll explained the purpose of the tape was to prevent an inmate who has gone to the bathroom while in the jumpsuit from reaching down or inside his jumpsuit to pick it up and ingest it again or otherwise destroy it. This actually had occurred previously. Defendant was not prevented from moving around in the holding cell.

Defendant testified at the hearing that he was under a doctor’s care for congestive heart failure, cardiac myopathy, an open-enlarged-heart condition, urinary frequency and a ruptured disc in his back. At the time of the contraband watch, he was taking seven different heart medications and medication for his back. At the time, he was not taking medication for urinary frequency. During the approximately 48 hours defendant was on contraband watch, he was untaped and re-taped 37 times to allow him to urinate. Sometime during the course of the contraband watch, defendant told the officers the tape was too tight as his arms and legs started to swell up, but the tape was not taken off until the next time he needed to urinate. Defendant acknowledged he received food, water and his medications during the contraband watch.

Defense counsel argued the corrections manual allowed a person to be X-rayed and that other means such as an X-ray should have been used in this case given defendant’s medical conditions. Defense counsel argued taping and untaping defendant in excess of 30 times amounted to cruel and unusual punishment.

The trial court wondered why a laxative was not administered to defendant to encourage the process as quickly as possible, but while a better process perhaps could have been used, the court did not think defendant’s contraband watch amounted to cruel and unusual punishment. The trial court did not find defendant’s right to privacy was invaded to an extent prohibited by the Constitution. The court denied defendant’s motion to suppress.

B. Analysis

Defendant claims the trial court erred in denying his motion to suppress. He claims the abusive manner in which the contraband search was conducted, specifically the process of taping and re-taping him at least 37 times in the space of 48 hours, constituted cruel and unusual punishment under the Eighth Amendment, rendering the search unreasonable in violation of the Fourth Amendment.

The standard of review on appeal following denial of a motion to suppress is well settled. “[W]e defer to the trial court’s factual findings, but we independently apply the requisite legal standard to the facts presented.” (People v. Celis (2004) 33 Cal.4th 667, 679.)

The Eighth Amendment’s prohibition against cruel and unusual punishment protects prisoners against inhumane treatment or conditions of confinement. (Farmer v. Brennan (1994) 511 U.S. 825, 832 [128 L.Ed.2d 811, 822].) Treatment or conditions that involve “‘unnecessary and wanton infliction of pain’” (Rhodes v. Chapman (1981) 452 U.S. 337, 346 [69 L.Ed.2d 59, 68]), by officials acting with “‘deliberate indifference’” (Wilson v. Seiter (1991) 501 U.S. 294, 303 [115 L.Ed.2d 271, 282]), violate a prisoner’s Eighth Amendment rights. (See Austin v. Pa. Dept. of Corrections (E.D. Pa. 1995) 876 F.Supp. 1437, 1471.) Put another way, prison conditions “must not be devoid of legitimate penological purpose [citation], or contrary to ‘evolving standards of decency that mark the progress of a maturing society.’” (Morgan v. Morgensen (9th Cir. 2006) 465 F.3d 1041, 1045.)

Defendant does not deny the penological purpose in a contraband watch, but claims less intrusive measures, which he asserts the trial court acknowledged were available, should have been used given his medical condition. He claims the contraband watch process amounted to wanton and unnecessary infliction of pain in this case. We disagree.

The record does not contain any evidence that X-rays would have been as effective in determining whether an inmate had swallowed contraband or that X-rays could have been used in defendant’s case given his medical conditions without causing him as much or more discomfort than the taping and untaping process of the contraband watch. The record only shows defendant requested X-rays, Coombs called to see if X-rays were an option, and he was told X-rays were not the process used by the prison. This evidence was clearly insufficient to make X-rays constitutionally required in this case. Moreover, we note that if X-rays had been used and balloons were detected in defendant’s digestive system, defendant would still have had to undergo the contraband watch process in order for prison officials to retrieve the balloons and test their contents for contraband. In such case, both processes would have been imposed on defendant.

Nor is the record sufficient to establish laxatives should have been administered to reduce the time defendant was on contraband watch. The court asked Coombs if the medical department ever administered laxatives; Coombs did not know. No further evidence regarding laxatives was introduced. Although the trial court wondered why laxatives were not used and theorized they might have provided a better process, we do not read the record as indicating any finding by the trial court that laxatives were an available, less intrusive method of retrieving any swallowed contraband. There was no evidence on which the trial court could have based such a factual finding. There was no evidence introduced regarding whether laxatives were available for use in this situation, if so, what kinds were available or effective, or whether laxatives were medically appropriate for defendant given his medical conditions. There was no evidence introduced that the effect of using laxatives would have been easier or less time consuming on defendant than “letting nature take its course.”

On this record we simply cannot conclude the contraband watch imposed on defendant was unnecessary. Therefore, defendant has not shown any violation of his Eighth Amendment rights.

For similar reasons, we also reject defendant’s claim the search was unreasonable for purposes of the Fourth Amendment.

“A prison has a compelling and uncontroverted interest in preventing the introduction into or the transporting throughout the prison of contraband and in maintaining order in the institution. A prisoner has a very limited reasonable expectation of privacy in regard to a search of his person. There is no requirement that a search be supported by either probable cause or reasonable suspicion; instead the relevant inquiry is whether under all of the circumstances the search was reasonable. And the determination of reasonableness depends, as it does in any Fourth Amendment case, on the specific facts presented. In particular, a court ‘must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.’ (Bell v. Wolfish [1979] 441 U.S. 520, 559 [60 L.Ed.2d 447, 481].)” (People v. Collins (2004) 115 Cal.App.4th 137, 154-155.)

Here prison officials had probable cause to believe defendant had been passed and swallowed contraband during visitation. Based on their observations, it was clearly justified and imminently reasonable to place defendant under surveillance in a special holding cell to monitor whether he excreted any such contraband. The prison officials did not interfere with defendant’s natural digestive process, but kept defendant under observation to prevent defendant from retrieving any swallowed contraband through vomiting or defecating.

The gravamen of defendant’s claim that the search was unreasonable appears to be that he was taped and untaped 37 times. However, placing the taped layers of boxers and jumpsuits on defendant prevented defendant from being able to reach any fecal matter to surreptiously dispose of excreted contraband by again ingesting it or otherwise destroying it. Such precautions were reasonable even though defendant’s frequent need for urination required he be untaped and re-taped numerous times during the course of the contraband watch. The taping and untaping process took only about five minutes each. The tape was never placed on defendant’s skin, but only around his clothing. Defendant was provided food, water, and his medications while he was on the contraband watch. We conclude the contraband watch/search was constitutionally reasonable and the trial court did not err in denying defendant’s motion to suppress.

II.

Juror Misconduct Did Not Deny Defendant His Constitutional Right To Due Process And A Fair Trial

Defendant claims Juror No. 10’s failure to pay attention during trial was misconduct that violated his constitutional right to due process and a fair trial. Defendant contends the juror’s misconduct created a presumption of prejudice against defendant that was not rebutted, requiring a reversal of his conviction. We disagree.

The reporter’s transcript sometimes refers to the juror in question as Juror Number Ten and other times as Juror Number Four. The clerk’s transcripts indicate the juror was Juror No. 10. We will refer to the juror as Juror No. 10.

A. Procedural Background

At the end of two days of testimony, a juror informed the bailiff that Juror No. 10 was text-messaging throughout the trial. The bailiff reported the information to the trial court the next morning of trial. The trial court brought the juror into court for questioning outside the presence of the other jurors. The following colloquy occurred:

“THE COURT: Ma’am, would you -- ma’am, it’s been brought to the Court’s attention where another juror represented that during the course of this trial when the court was in session you had been texting messages on your cell phone?

“JUROR [10]: Oh, yeah, I did text message one time. [¶] Are we not allowed to do that?

“THE COURT: Ma’am, you are required to pay attention to everything that goes on in here without any distraction of any kind.

“JUROR [10]: Okay.

“THE COURT: Further, I hope that you have not been texting any type of message in terms of what’s been going on with this trial.

“JUROR [10]: Oh, no, I haven’t. I know that we’re not supposed to talk about anything with anyone, so.

“THE COURT: All right. While she’s here, do the lawyers have any questions of her?

“[THE PROSECUTOR]: I don’t.

“[DEFENSE COUNSEL]: I do not, your Honor.

“THE COURT: Sir?

“[THE PROSECUTOR]: I do not, sir. I’m sorry.”

A few minutes later, the prosecutor addressed the matter as follows:

“[THE PROSECUTOR]: Your Honor, I have one other issue with regards to Juror Number Ten.

“THE COURT: Yes.

“[THE PROSECUTOR]: It would be the People’s motion based on what we learned that she be removed from the jury.

“THE COURT: What is your position?

“[DEFENSE COUNSEL]: I’m not requesting that, your Honor. I don’t

“THE COURT: That request is denied. Let’s go.”

The prosecutor raised the matter again the next morning before closing arguments.

“[THE PROSECUTOR]: All right. I had one other issue, your Honor.

“THE COURT: Sure.

“[THE PROSECUTOR]: I’m concerned about Juror Number Ten[;] it looked to me a couple times when I looked over there[,] I wasn’t watching her the whole time[,] looked to me like she was either asleep or falling asleep so that’s something I noticed.

“THE COURT: Well, I really don’t know. I can ask her when she comes back were you sleeping.

“[THE PROSECUTOR]: Okay. I’m just not sure she’s paying attention. Thank you, your Honor.

“THE COURT: Anything else?

“[THE PROSECUTOR]: That’s all I have.

“THE COURT: All right, fellows. See you at 1:30.”

The prosecutor brought the matter up one more time after closing arguments were presented and prior to the court’s instruction of the jury.

“[THE PROSECUTOR]: Just -- People would just like to reknew [sic] their motion to have Juror Number Ten excused. After I made my motion yesterday and the Court denied it during our closing arguments there was an indication Juror Number Ten was either asleep or falling asleep or not paying attention. [¶] People renew their motion to have her removed for, you know, the texting earlier. She seems to be continuing with her inability to pay attention. I didn’t -- that’s not really fair to either side. She’s not -- at least as far as I can tell not paying attention. That’s our motion.

“THE COURT: That is denied. I looked at the jurors. And she wasn’t sleeping. I’ve already ruled on the other matters.

“[THE PROSECUTOR]: Well, no

“THE COURT: In the texting and I believe that was ruled on.”

The court proceeded to instruct the jury.

B. Analysis

A defendant has a constitutional right to an impartial jury willing to decide the case solely based on the evidence before it. (In re Hamilton (1999) 20 Cal.4th 273, 293; In re Hitchings (1993) 6 Cal.4th 97, 110.) The defendant’s constitutional right is protected by the trial court’s authority to replace a juror with an alternative juror for good cause. (§ 1089.) When a trial court is put on notice that good cause to discharge a juror may exist, “it is the court’s duty ‘to make whatever inquiry is reasonably necessary’ to determine whether the juror should be discharged. [Citation.]” (People v. Espinoza (1992) 3 Cal.4th 806, 821.) Both the scope of such inquiry and the ultimate decision whether to retain or discharge a juror are committed to the sound discretion of the trial court. (People v. Bonilla (2007) 41 Cal.4th 313, 350; People v. Bradford (1997) 15 Cal.4th 1229, 1351.) If any substantial evidence exists to support the trial court’s exercise of its discretion, the court’s action will be upheld on appeal. (People v. Bradford, supra, at p. 1351.) Juror inattention may be good cause for discharge of a juror. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 411.)

Here the trial court was informed Juror No. 10 was observed text-messaging throughout the trial. The court promptly questioned the juror about this information. Juror No. 10 admitted sending a text message one time. She denied that it included any type of message regarding what was going on in trial. She was told she was required to pay attention to everything that went on and she agreed. Counsel declined to question her further. When the prosecutor subsequently requested her removal, defense counsel affirmatively told the trial court defendant was not joining in that request.

We conclude defendant waived any claim of error in the trial court’s investigation and decision to retain Juror No. 10 at this point. Moreover, we find no error. Juror No. 10 told the trial court she only sent a text message one time and that it was unrelated to the trial. There was no evidence as to when such single message was sent, whether it was during the testimony of a witness or other court proceedings. There was no evidence Juror No. 10 missed any material part of the trial. The parties declined the trial court’s offer to question the juror further. Under these circumstances, the trial court did not abuse its discretion in retaining Juror No. 10 on the jury. Juror No. 10’s inability to perform a juror’s functions was not shown on the record to be a “‘demonstrable reality.’” (People v. Farnam (2002) 28 Cal.4th 107, 141; People v. Cleveland (2001) 25 Cal.4th 466, 484.)

Later the prosecutor raised a further concern about Juror No. 10. The prosecutor suggested that a couple of times it looked to him like Juror No. 10 was either asleep or falling asleep. The trial court indicated that when the jury returned it would ask Juror No. 10 whether she was asleep. However, the court apparently forgot and neither party reminded the court. Subsequently, the prosecutor renewed his motion to discharge Juror No. 10, mentioning that during closing arguments “there was an indication Juror Number Ten was either asleep or falling asleep or not paying attention.” The trial court found such claim was not true, stating it had watched the jurors during argument and Juror No. 10 was not asleep. The court then stated it had already ruled on the other matters. This would have been the natural time for defendant to alert the court that it had not in fact ruled on the prosecutor’s earlier claim Juror No. 10 was sleeping or falling asleep and to remind the court of its expressed intention to question Juror No. 10 whether she was sleeping during the trial. Defendant remained silent. Defendant now claims prejudicial error, despite his complete inaction below. We find no error.

“The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial.” (People v. Ray (1996) 13 Cal.4th 313, 343.) Although a juror’s sleeping through a material portion of the trial may be good cause for the discharge of the juror (People v. Bonilla, supra, 41 Cal.4th at p. 350; People v. Bradford, supra, 15 Cal.4th at pp. 1348-1349), information that amounts to no more than mere speculation that a juror is sleeping does not trigger the court’s duty to investigate. (People v. Espinoza, supra, 3 Cal.4th 806, 821.)

Here the prosecutor’s assertion that a couple of times it looked to him like Juror No. 10 was sleeping orfalling asleep amounted only to speculation that the juror was not paying attention. The prosecutor did not specify the number of times or the length of time he observed Juror No. 10 supposedly sleeping or falling asleep. Nor did he specify whether it was during the giving of testimony or otherwise. (See People v. Bradford, supra, 15 Cal.4th at p. 1349 [discharge of juror not required in absence of evidence the juror was asleep for a substantial period of material portions of the trial].) On this record, we find the trial court did not abuse its discretion in failing to investigate and in later denying the prosecution’s renewed motion to discharge Juror No. 10.

We also note that even if we were to conclude some vague and momentary inattention by Juror No. 10 raised some presumption of prejudice, the presumption is dispelled by the fact this was not a close case. Defendant’s defense was extremely weak. And we have no idea what testimony, if any, Juror No. 10 missed. Given the fact it was the prosecutor alone who made multiple efforts to have her discharged, it seems likely the juror’s supposed inattention occurred when the prosecution’s case was being presented. Any juror misconduct (by inattention) was harmless. (See Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 417 [in assessing prejudice from juror inattention, strength of the evidence that misconduct occurred, nature and seriousness of the misconduct, and the relative strengths of the evidence may be considered].)

DISPOSITION

The judgment is affirmed.

We concur DAVIS, Acting P.J., NICHOLSON, J.


Summaries of

People v. Fulgham

California Court of Appeals, Third District, Sacramento
Sep 9, 2008
No. C057526 (Cal. Ct. App. Sep. 9, 2008)
Case details for

People v. Fulgham

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LENNARD ARTHUR FULGHAM, Defendant…

Court:California Court of Appeals, Third District, Sacramento

Date published: Sep 9, 2008

Citations

No. C057526 (Cal. Ct. App. Sep. 9, 2008)