People v. McNeal

• Decision Date: 22 March 1979
• Docket Number: Cr. 17867,17868
• Citation: 90 Cal.App.3d 830,153 Cal.Rptr. 706
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Russell Wayne McNEAL and Nathan Leon Nix, Defendants and Appellants. PEOPLE of the State of California, Plaintiff and Respondent, v. Russell Wayne McNEAL, Defendant and Appellant.

Page 706

153 Cal.Rptr. 706

90 Cal.App.3d 830

PEOPLE of the State of California, Plaintiff and Respondent, v. Russell Wayne McNEAL and Nathan Leon Nix, Defendants and Appellants.

PEOPLE of the State of California, Plaintiff and Respondent, v. Russell Wayne McNEAL, Defendant and Appellant.

Cr. 17867, 17868.

Court of Appeal, First District, Division 3, California.

March 22, 1979.

Quin Denvir, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Dennis P. Riordan, Thomas N. Griffin, Deputy State Public Defenders, San Francisco, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, C. Michael Buzzell, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

SCOTT, Associate Justice.

Appellants Russell McNeal and Nathan Nix were convicted, after trial by jury, of violation of Penal Code section 211 (robbery), and violation of Penal Code section 459 (burglary). Appellant Nix also was found to have used a firearm in the commission of the robbery and the burglary. Appellant McNeal was also found to be in violation of his probation for a previous violation of Penal Code sections 236 (false imprisonment), 221 (assault with intent to commit a felony), and 594 (vandalism).

In the early morning hours of April 25, 1977, the victim, Allen Fawkes, was awakened in his home by three intruders who wore rubber masks: one described as a blackish-green witch's face, another as a fox or a wolf, and the third as a large bald head. The masks completely covered the heads of the intruders. The individual wearing the witch's mask held a flashlight and a shotgun or rifle. Fawkes was robbed of a small quantity of marijuana, his wallet and two .22 caliber rifles. Within a few hours after the robbery, appellants and their juvenile coparticipant ¹ were arrested.

The principal issue raised by appellants is whether the court erred in failing to ascertain if good cause existed for excusing one of the jurors. We conclude that the court erred, requiring a reversal of the convictions.

In the afternoon of the first day of jury deliberations, the jury foreman sent a note to the trial judge, resulting in an in-chambers discussion with the foreman, with all counsel and appellants present. The note itself is not in the record. However, a colloquy between the court and the foreman regarding the note was as follows:

"Q. Your note indicates that one of the jurors has some personal knowledge that was brought about from the testimony of the last defense witness, and says it has definitely had a bearing on the way she will vote. Has she discussed what this knowledge is?

"A. Yes, she has, to a point.

"Q. To a point?

"A. She mentioned a couple of names, and that's about it."

Counsel indicated they wished to talk to the juror. The court then recessed for the day and separated the jury.

The following morning, before commencement of jury deliberations, counsel for McNeal suggested the foreman's statements required a formal hearing pursuant to Penal Code section 1120, so that the court could determine whether good cause existed to discharge the juror. The district attorney also asked that the juror be interrogated and that the court further ascertain if other jurors had been tainted. Penal Code section 1120 provides:

If a juror has any personal knowledge respecting a fact in controversy in a cause, he must declare the same in open court during the trial. If, during the retirement of the jury, a juror declare a fact which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases, the juror making the statement must be sworn as a witness and examined in the presence of the parties in order that the court may determine whether good cause exists for his discharge as a juror.

During further discussions with counsel as to how to proceed, the court declared, "I'm not going into the facts." The judge ultimately decided to requestion the foreman "to find out from him what specifically, Not the facts, but rather whether it was her (the juror) request or just his idea that brought this note." (Emphasis added.) The foreman was again brought into chambers and was asked by the judge how the note came about. "Did the juror ask to have it sent?" The foreman answered, "Yes. She just broke down and said that there was some that she had too much to lose, and it would definitely affect her decision now." The foreman then identified the juror as Jessie Exline. After this brief discussion with the foreman, Juror Exline was brought into chambers and verified that she had read the note before it had been sent to the court. The judge told the juror he wanted to ask her "a couple of questions." "You can just answer yes or no, And we don't want to go into factual matters." (Emphasis added.) The judge then asked the juror if she could deliberate fairly and impartially in the matter, to which Juror Exline answered, "Well, after giving it some thought, since yesterday, I still can't find that I can say 'guilty' when I can't believe it." Just what the juror meant by her statement was not pursued. Instead, the judge said, "Well, I don't think that's exactly what I'm asking." Further questions were asked of the juror as to whether she could deliberate fairly and impartially, to which she answered, "Yes." The prosecutor then said, "Well, the note indicates that maybe Mrs. Exline has information outside the evidence, outside the things that were just presented to the court." The court thereupon asked the juror, "Do you feel you could set that aside and judge the case on the evidence?" She replied, "Yes." The jury was then instructed to resume their deliberations.

Appellants contend the trial court erred in not conducting a hearing as required by Penal Code section 1120; in particular, appellants object to the court's failure to inquire into the facts of the juror's knowledge. We agree that the court's inquiry was inadequate under the circumstances.

Penal Code section 1123 provides a mechanism by which a juror can be excused after the court determines there is "good cause" to support a conclusion that the juror is unable to perform his duty. ² Included within the scope of that section is a juror who claims personal knowledge of a fact which could be evidence in the cause, according to section 1120.

The hearing requirements under Penal Code section 1120 are explicit. If the court is put on notice that a juror has declared personal knowledge of a fact in controversy, the court is under an obligation to determine whether that knowledge means there is good cause to discharge that juror. In such a situation, the juror must be Sworn and examined. While a hearing with sworn testimony by the juror is required by section 1120, it appears that a less formal inquiry is adequate to determine "good cause" to discharge a juror under other circumstances.

In People v. Compton (1971) 6 Cal.3d 55, 60, 98 Cal.Rptr. 217, 220, 490 P.2d 537, 540, the court, referring to Penal Code sections 1089 and 1123, stated, "the trial court has at most a limited discretion to determine that the facts show an inability to perform the functions of a juror, and that inability must appear in the record as a demonstrable reality." (See also People v. Collins (1976) 17 Cal.3d 687, 696, 131 Cal.Rptr. 782, 552 P.2d 742.) In People v. Manriquez (1976) 59 Cal.App.3d 426, 432, 130 Cal.Rptr. 585, 588, 589, the court stated:

A hearing under sections 1123 and 1089 should be summary in nature and scope. (People v. Tinnin (1934) 136 Cal.App. 301, 318-319, 28 P.2d 951; People v. Abbott (1956) 47 Cal.2d 362, 371, 303 P.2d 730.) The hearing, though not a full-scale adversary hearing nonetheless should be complete enough to determine "good cause." (Cf. People v. Huff (1967) 255 Cal.App.2d 443, 448, 63 Cal.Rptr. 317; Mitchell v. Superior Court (1962) 207 Cal.App.2d 643, 649, 24 Cal.Rptr. 671.)

The question presented here is whether, based upon the information available to the court, a more extensive hearing should have been conducted. We conclude that the record is abundant with statements that should have alerted the court to the requirement of an inquiry into the factual basis of the juror's original concern.

According to the foreman, in addition to stating that she had personal knowledge brought about by the testimony of the last witness (defense witness Francis Rogers), the juror "mentioned a couple of names, and that's about it." That statement creates something of a mystery as to just what the juror said and whether it was said only to the foreman or to other jurors as well. The next day, the foreman offered the additional, equally mystifying information that Juror Exline "just broke down" and said "she had too much to lose." From that statement one could speculate as to any number of possible improper influences being brought to bear upon the juror. It appears also from the statement that the foreman had not divulged everything he knew about the problem with Juror Exline in his first conference with the judge. The situation became more complicated during the court's discussion with Juror Exline herself, when she stated she could not say "guilty" when she didn't believe it, as if she was expected to vote to convict appellants even if she didn't believe them to be guilty; however, the court did not make any inquiry for clarification of that statement.

Respondent contends that an adequate inquiry was made by the court, to wit, a determination that the juror could be fair and impartial. The cases cited by respondent, however, are inapposite. It is not enough for the juror alone to evaluate the facts and conclude that they do not interfere with his or her impartiality. (See People v. Farris (1977) 66 Cal.App.3d 376, 386-387, 136 Cal.Rptr. 45.) In Farris and in People v. Franklin (1976) 56 Cal.App.3d 18, 128 Cal.Rptr. 94, the...