People v. Honeycutt

• Decision Date: 08 November 1977
• Docket Number: Cr. 19592
• Citation: 141 Cal.Rptr. 698,570 P.2d 1050,20 Cal.3d 150
• Court: California Supreme Court
• Parties: , 570 P.2d 1050 The PEOPLE, Plaintiff and Respondent, v. Henry HONEYCUTT, Defendant and Appellant.

Page 698

141 Cal.Rptr. 698

20 Cal.3d 150, 570 P.2d 1050

The PEOPLE, Plaintiff and Respondent, v. Henry HONEYCUTT, Defendant and Appellant.

Cr. 19592.

Supreme Court of California, In Bank.

Nov. 8, 1977.

Rehearing Denied Dec. 8, 1977.

Douglas M. Shepersky, Bonita, under appointment by the Supreme Court, App. Defenders, Inc., under appointment by the Court of Appeal, and Paul Bell, San Diego, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Karl J. Phaler and Cecilia H. Johnson, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, ^* Justice.

Henry Honeycutt appeals from a judgment upon a jury conviction of first degree murder. (Pen.Code, §§ 187, 189.) He contends that the foreman of the jury was guilty of prejudicial misconduct which requires that we reverse the judgment. We agree. Although we need not reach defendant's further contention that it was error not to suppress an extrajudicial confession, we nevertheless conclude for guidance of the trial court on retrial, if any, that such confession was extracted without compliance with the proscriptions of Miranda v. Arizona (1965) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Defendant spent the night of March 3, 1975, at William Batiste's home. He discovered in the morning that $72 of his money was missing. When Batiste failed to respond to inquiries concerning the money, defendant kicked and beat Batiste who offered no resistance. In an attack lasting 45 minutes defendant stabbed and slashed his victim more than 100 times with a large 2-pronged barbecue fork. A woman, who had also spent the night at Batiste's home, implored defendant to stop the beating. When her requests went unheeded she left the premises and notified the police. When police arrived defendant fled but was apprehended four blocks away. Batiste died that afternoon. The coroner found Batiste's body to have not less than 143 lacerations and puncture wounds covering his head, back, chest, abdomen, groin, penis and hip.

Defendant, an alcoholic for many years, had been drinking heavily for a four-week period prior to the killing. Expert witnesses testified, not without dispute, that based on the elapsed time and blood alcohol determinations made after defendant's arrest, that his approximate blood alcohol level was .24 percent at the time of the offense, sufficient to impair his ability to meaningfully reflect upon the gravity of any contemplated act or to understand the societal duty not to commit acts which involved the risk of great injury or death.

The jury began its deliberations on a Thursday. On Friday morning it requested and received reinstruction on, inter alia, involuntary manslaughter and diminished capacity. Deliberations continued through the afternoon when a weekend recess was taken. While the jury foreman was still at home on Monday morning he telephoned an attorney who was associated with the foreman's business. The foreman advised the attorney that he was a member of a jury panel but he did not state that he was then involved in deliberations. The foreman asked if involuntary manslaughter was a felony or a misdemeanor. The attorney answered that his criminal practice had generally been limited to defending against charges of felony drunk driving, and that such an offense would be treated as a felony until sentencing when it could be reduced to a misdemeanor. When asked to explain diminished capacity, the attorney stated that it was a defense based on a defendant's state of mind which, if established would negate the existence of a specific criminal intent in cases wherein such an intent was an element of the crime and legal insanity could not be established. To illustrate his explanation he described how he had obtained a reduction of charges in the case of a client who, in cashing bad checks, actually intended to repay the victims. The attorney emphasized that he had not practiced criminal law for about five years and that his knowledge of the applicable rules might not be current. He advised that in any event the foreman should follow the judge's instructions on the applicable law. ¹

After his conversation with the attorney the foreman reported to court for further deliberations. He later stated that he did not mention the conversation to the other jurors. On Monday afternoon the jury was reinstructed on first degree murder, diminished capacity and malice aforethought. The following morning the jury found defendant guilty of first degree murder. ²

When the attorney learned three days after their conversation that at the time thereof the foreman had actually been engaged in deliberations, he notified the court. Defendant moved for a new trial (Pen.Code, § 1181, subd. (3)), and the attorney and the foreman testified at the hearing thereon. The court denied the motion concluding that although the foreman was guilty of misconduct, defendant had not been prejudiced thereby.

It is well settled that a presumption of prejudice arises from any juror misconduct. In an early case we said: "For, when misconduct of jurors is shown, it is presumed to be injurious to defendant, unless the contrary appears." (People v. Conkling (1896) 111 Cal. 616, 628, 44 P. 314, 318.) We have often restated the presumption. (See, e. g., People v. Wong Loung (1911)159 Cal. 520, 528-529, 114 P. 829.) In Remmer v. United States 1954) 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654, the United States Supreme Court stated: "In a criminal case, any private communication, contact or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial . . . ." However, the presumption may be rebutted by proof that no prejudice actually resulted. (In re Winchester (1960) 53 Cal.2d 528, 535, 2 Cal.Rptr. 296, 348 P.2d 904.)

Juror misconduct has occurred in several forms requiring reversal when prejudice is presumed in the absence of evidence to rebut the presumption. The mere presence of an alternate although silent juror during deliberations has repeatedly been held to constitute prejudicial misconduct. (People v. Britton (1935) 4 Cal.2d 622, 52 P.2d 217; People v. Bruneman (1935) 4 Cal.App.2d 75, 40 P.2d 891; People v. Adame (1973) 36 Cal.App.3d 402, 111 Cal.Rptr. 462; cf. People v. French (1939) 12 Cal.2d 720, 770-771 87 P.2d 1014 (presence of alternate jurors after submission but before commencement of deliberations held not to justify granting of a new trial).) The reading by jurors of newspaper accounts of trial proceedings and unauthorized communications between jurors and bailiffs or other court officers has also been condemned as prejudicial misconduct. (People v. Wong Loung, supra, 159 Cal. 520, 525-527, 114 P.2d 829.) ³

When, as occurred in the instant case, a juror contacts an outside attorney for advice during deliberations in a criminal case, he is guilty of egregious misconduct. Such conduct in clear violation of the trial court's admonitions interjects outside views into the jury room and creates a high potential for prejudice. In People v. Conkling, supra, 111 Cal. 616, 628, 44 P. 314, we stated that jurors cannot investigate the case outside the courtroom and that they must decide the guilt or innocence of a defendant based only on evidence introduced at trial. It is equally manifest that we cannot condone a practice whereby a juror receives outside counseling relative to the applicable law, as to do so would subordinate the court's evaluation of the law to that of the juror's outside source and would be contrary to legislative directives that the court shall instruct on the applicable law (Pen.Code, § 1127) and maintain control of the proceedings (Pen.Code, § 1044). We cannot, therefore, disapprove too strongly the foreman's decision to disregard the court's instructions and to solicit outside legal advice.

We next proceed to the question of prejudice flowing from this serious misconduct. The attorney advised the foreman, inter alia, that in his experience, which mainly concerned vehicular manslaughter, involuntary manslaughter is an alternative felony-misdemeanor depending on the sentence imposed. Although the attorney's advice was accurate concerning vehicular manslaughter (Pen.Code, §§ 1912, subd. (3), 193) it was inaccurate with respect to the particular charge of involuntary manslaughter (Pen.Code, §§ 192, subd. (2), 193), which can never become a misdemeanor upon sentencing. Such advice could have left the foreman with the impression that if defendant were convicted of manslaughter he might thereafter be sentenced only to county jail rather than to state prison. The foreman's questions to the attorney can be interpreted to imply that he was contemplating a conviction of involuntary manslaughter because of defendant's diminished capacity due to intoxication, but that he was concerned, in view of the gravity of defendant's conduct, that if he were convicted of such lesser manslaughter charge he might escape state prison. ⁴

The People point out, however, that the information provided by the attorney was essentially accurate and that all but two of the jurors executed statements that the foreman never mentioned his conversation with the outside attorney. Nevertheless the errant juror was the foreman whose perceptions and conclusions may often sway other jurors. With a belief that manslaughter can sometimes be a misdemeanor the foreman may have elected in favor of a murder conviction notwithstanding considerable evidence supporting the defense of diminished capacity. If so, and particularly if his conclusion influenced other jurors, defendant may have been deprived of the benefit of the jury's full consideration of his diminished capacity defense. (Accord, Horn v. State (1953) 216 Miss. 439, 62 So.2d 560.)

Under these circumstances the presumption of prejudice was not rebutted but...