Carpenter, In re

• Decision Date: 06 March 1995
• Docket Number: No. S011273,S011273
• Court: California Supreme Court
• Parties: , 889 P.2d 985, 63 USLW 2607 In re David Joseph CARPENTER on Habeas Corpus.

Page 665

38 Cal.Rptr.2d 665

9 Cal.4th 634, 889 P.2d 985, 63 USLW 2607

In re David Joseph CARPENTER on Habeas Corpus.

No. S011273.

Supreme Court of California,

In Bank.

March 6, 1995.

As Modified on Denial of Rehearing May 17, 1995.

Fern M. Laethem, State Public Defender, Sarah Plotkin, Chief Asst. State Public Defender, Kent Barkhurst, Douglas G. Ward and Thomas A. Schaaf, Deputy State Public Defenders, for petitioner.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., Garrett Beaumont, M. Howard Wayne, Pat Zaharopoulos and Carl H. Horst, Deputy Attys. Gen., for respondent.

ARABIAN, Justice.

The Director of Corrections appeals a superior court judgment and order on habeas corpus vacating an earlier superior court judgment against David Joseph Carpenter, including a sentence of death. We reverse.

I. THE BACKGROUND

A. The Santa Cruz "Trailside Murder" Case

In the Santa Cruz Superior Court, the People charged Carpenter with the following offenses committed in that county in the spring of 1981: (1) the murder of Ellen Marie Hansen under special circumstances of rape murder, lying in wait, and multiple murder; (2) the attempted rape of Hansen; (3) the attempted murder of Steven Russell Haertle with personal use of a firearm and infliction of great bodily injury; (4) the murder of Heather Scaggs under special circumstances of rape murder and multiple murder; and (5) the rape of Scaggs. Carpenter pleaded not guilty.

Following a change of venue because of pretrial publicity, a jury trial was held in Los Angeles County. The jury found Carpenter guilty on all charges, with the murders in the first degree, and found each of the allegations true. After the penalty phase, it returned a verdict of death, and the superior court imposed that sentence. Carpenter's automatic appeal to this court is pending.

B. The Marin "Trailside Murder" Case

In a separate action, the one underlying this appeal, the People charged Carpenter with the following offenses committed in Marin County in the fall of 1980: (1) the murder of Cynthia Toshiko Moreland with personal use of a firearm; (2) the murder of Richard Edward Stowers with personal use of a firearm; (3) the murder of Anne Evelyn Alderson under the special circumstance of rape murder and with personal use of a firearm; (4) the rape of Alderson with personal use of a firearm; (5) the murder of Diane Marie O'Connell under the special circumstance of rape murder and with personal use of a firearm; (6) the attempted rape of O'Connell with personal use of a firearm; (7) the murder of Shauna Catherine May under the special circumstance of rape murder and with personal use of a firearm; and (8) the rape of May with personal use of a firearm. The special circumstance of multiple murder was also charged. Carpenter pleaded not guilty.

After the trial for the Santa Cruz crimes, and following a change of venue because of pretrial publicity, jury trial in this case commenced in San Diego Superior Court. Prior to trial, the court ruled on the admissibility of evidence of the Santa Cruz "Trailside Murders." Both parties theorized that the same person committed both sets of crimes; the issue at trial was whether that person was Carpenter. For the guilt phase, the court permitted evidence of the facts underlying these offenses except those against Scaggs; it excluded the latter as, inter alia, substantially more prejudicial than probative under Evidence Code section 352. For the penalty phase, it permitted evidence of the facts underlying all the offenses. For both phases, it barred evidence of Carpenter's convictions and death sentences as substantially more prejudicial than probative.

Throughout jury selection and trial, the court continually admonished the prospective jurors and then jury, in accordance with Penal Code section 1122, that "it [was] their duty not to converse among themselves or with anyone else on any subject connected with the trial, or to form or express any opinion thereon until the cause [was] finally submitted to them," and to avoid publicity relating to the case. It admonished them to immediately advise any person attempting to discuss the case with them that they could not do so, and to immediately report the matter if such person should persist.

Barbara Durham was selected as one of the 12 jurors, and became the foreperson. On voir dire, she stated that she had not heard of the "Trailside Murders." She and the other 11 jurors evidently swore, in conformity with the oath prescribed by statute, that she would "well and truly try" the cause and "a true verdict render according to the evidence." (Code Civ.Proc., former § 604, enacted 1872, repealed Stats.1988, ch. 1245, § 7, p. 4155; accord, id., § 232, subd. (b).)

During the guilt phase, evidence of the facts underlying the Santa Cruz crimes, except the Scaggs offenses, featured prominently, but evidence of the verdicts was not presented. The jury found Carpenter guilty on all charges, with the murders in the first degree, and found each of the allegations true. During the penalty phase, evidence of the facts underlying the Santa Cruz crimes, including the Scaggs offenses, but not the verdicts, was introduced. The jury returned a verdict of death, and the superior court imposed that sentence. Carpenter's automatic appeal is pending in this court.

II. THE HABEAS CORPUS PROCEEDING

Carpenter filed a petition for writ of habeas corpus in the San Diego Superior Court challenging the judgment in the Marin "Trailside Murder" case shortly after its rendition. He alleged that Juror Durham had committed prejudicial misconduct during trial. The matter was assigned to the trial judge, who issued an order to show cause why relief should not be granted. After a return--which challenged the jurisdiction of the superior court and denied the allegations of misconduct--and traverse were filed, the court ordered an evidentiary hearing. Carpenter presented extensive evidence, mainly through the testimony of Michael Lustig and Donna Duran. The respondent also presented extensive evidence, mainly through Juror Durham and her husband Ronald.

The court characterized the evidentiary hearing as a "classic credibility contest" between Lustig and Duran on one side, and the Durhams on the other. It found Lustig's testimony "credible ... in almost all respects," and Duran's credible in all respects. It doubted the testimony of the Durhams, and found that of Juror Durham, in its general denial of misconduct, perjurious.

From all the evidence, the court determined that Juror Durham had committed misconduct by receiving information outside of court relating to the convictions and death sentence for the Santa Cruz crimes. By March 26, 1988, in the middle of the guilt phase, she had received the forbidden information from newspaper accounts, either directly or through her husband. Until at least March 26, 1988, the couple received delivery of a newspaper at their home. They had falsely stated in their original declarations that they had canceled their subscription around the opening of the guilt phase. Instead, they ordered cancellation on, or as of, March 26, 1988. At all relevant times, they were experiencing drinking problems and marital troubles. Ronald openly criticized the trial as a waste of time and money, having learned that Carpenter had already been convicted and sentenced to death for the Santa Cruz crimes. The "situation" was "very explosive," presenting an "opportunity for a verbal battle between husband and wife while parties have been drinking." "[O]n many occasions he apparently told her when she would come home from this trial, ... 'I know so much more about this case than you do.' [p] ... I don't know what would provoke that kind of response unless Mrs. Durham is somehow talking about aspects of the case." He had the "opportunity ... to let his wife know in no uncertain terms that you're just wasting your time on this trial because Mr. Carpenter has already got the death sentence and he's been convicted of similar crimes."

The superior court also found that Juror Durham had committed misconduct by discussing the case pending before her and Carpenter's Santa Cruz convictions and death sentence with nonjurors, including Lustig and Duran. On March 26, 1988, Lustig, Duran and others were having dinner at a resort in San Diego County. Lustig invited the Durhams, who were social acquaintances but not close friends, to his table. At Lustig's table, Juror Durham initiated a five-or ten-minute conversation about the Marin case. She stated something like the jury was not supposed to know this, but Carpenter had already been convicted and sentenced to death for the Santa Cruz crimes. The court found Juror Durham to be "very outspoken," and to have "no hesitancy talking about her marital problems" even "with a virtual stranger.... And ... that's somewhat similar to the fact that she would share with a stranger her confidential information about this case." "[S]he wanted to be the center of attention that night, and that kind of disclosure placed her in the center of attention with the Lustig[ ]" party. She admitted she had discussed the Marin case with Lustig and Duran, but denied revealing that she knew the forbidden information and knew it was forbidden. The court did not credit this.

Having found misconduct, the court ordered a separate hearing on prejudice. At that hearing, the parties presented extensive argument but did not introduce new evidence. In a detailed ruling, the court found prejudice. It stated at the outset that it was applying the analysis of People v. Martinez (1978) 82 Cal.App.3d 1, 147 Cal.Rptr. 208, which held that whether a defendant has been prejudiced by a jury receiving evidence outside of court "depends upon whether the jury's impartiality has been adversely affected, whether the prosecution's burden of proof has been lightened and whether...