People v. Nesler

• Citation: 941 P.2d 87,66 Cal.Rptr.2d 454,16 Cal.4th 561
• Decision Date: 21 August 1997
• Docket Number: No. S056082,S056082
• Court: United States State Supreme Court (California)
• Parties: , 941 P.2d 87, 97 Cal. Daily Op. Serv. 6671, 97 Daily Journal D.A.R. 10,856 The PEOPLE, Plaintiff and Respondent, v. Ellena Starr NESLER, Defendant and Appellant.

Page 454

66 Cal.Rptr.2d 454

16 Cal.4th 561, 941 P.2d 87, 97 Cal. Daily Op. Serv. 6671,

97 Daily Journal D.A.R. 10,856

The PEOPLE, Plaintiff and Respondent, v. Ellena Starr NESLER, Defendant and Appellant.

No. S056082.

Supreme Court of California.

Aug. 21, 1997.

Paul Couenhoven, Berkeley, under appointment by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, W. Scott Thorpe, Stan Cross and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, Chief Justice.

In a Tuolumne County courtroom, during a break in Daniel Driver's preliminary hearing on charges of sodomizing her seven-year-old son, defendant Ellena Starr Nesler shot and killed Driver. A jury found defendant guilty of voluntary manslaughter with the use of a firearm, thereafter deciding that she was sane at the time of the commission of the offense. The Court of Appeal affirmed defendant's conviction. We granted review to determine whether defendant was prejudiced by juror misconduct that occurred during the sanity phase of the trial. Because we determine that the presumption of prejudice arising from the misconduct was not rebutted, we conclude that the judgment of the Court of Appeal with respect to the sanity phase must be reversed.

I

In order to place defendant's claim of juror misconduct in context, we summarize the evidence leading to her conviction, with particular emphasis upon issues related to the alleged misconduct. Because the misconduct occurred during the sanity phase of the trial, pertinent portions of the expert testimony concerning her mental state are set forth in some detail. Finally, we describe the evidence that the trial court received from the jurors in connection with defendant's motion for a new trial, as well as the lower courts' analyses of defendant's argument that she was denied a fair trial because of juror misconduct.

A. Guilt Phase

During the guilt phase of the trial, the parties presented evidence of the following facts, which are essentially undisputed for purposes of this appeal. Daniel Driver allegedly raped defendant's son, W., at a Christian camp where Driver worked. Driver told W., who was then seven years of age, that Driver would kill him, his sister, and defendant if W. told anyone what had happened. Several months later, W. disclosed to defendant what Driver had done. In May 1989, a complaint was filed against Driver, alleging seven counts of child molestation involving four boys, including W. Driver, however, had fled and was not apprehended until late 1992 or early 1993.

During this period, W. became hypervigilant and expected Driver to kidnap and kill him. He also began asking defendant questions about suicide, and once defendant found him with a gun. Fearing that W. would kill himself, she obtained counseling for him. Defendant told her sister, Jannette Martinez, that when defendant was a child she had been raped in the same manner as W., and that there was a time when she, too, wanted to die.

Before Driver's preliminary hearing took place in April 1993, defendant protested when she learned that W. would have to face Driver at the hearing. She suggested videotaping W.'s testimony, but that alternative was unavailable; defendant then asked that the hearing at least be closed to the public. On the morning of the hearing, W. began vomiting and continued to do so after he arrived at the courthouse. Defendant appeared nervous, upset, and extremely anxious about W. She told an investigator that W. might not be able to testify, and she attempted to reassure and encourage the boy. When Driver arrived at the courthouse for the hearing, he looked at W. and grinned with a mean, disgusted, and haughty look. Defendant lunged for Driver, but Martinez grabbed her arm. Defendant again asked someone from the district attorney's office whether the courtroom could be closed, but an open hearing was held.

After W. entered the waiting room for witnesses, he continued to vomit. The mother of one of the other boys said that she did not believe her testimony had gone well, and that Driver had smirked at her and her son when they testified. This woman also said that she was convinced Driver was "going to walk," and that she wanted to get a gun and kill him. She told defendant to try to do better than she and her son had done. After this exchange, defendant became nervous and started pacing.

Defendant and W. were to be the last witnesses to testify at the preliminary hearing. Just before they were called, defendant asked the investigator whether he and other employees in the district attorney's office would get in trouble if "something happened" to Driver. Believing that defendant was referring to a previous assault upon Driver by another inmate in the jail, the investigator gave a negative response. Defendant and Martinez entered the courtroom, and the prosecutor told them to take a seat. The judge was not present, and a shackled Driver was sitting in a chair approximately one foot from defense counsel. Defendant stood behind the defense attorney, drew a gun she had taken from Martinez's purse, and shot Driver five times in the left side of the head and neck; a sixth bullet missed Driver and was found in the wall. The gun's muzzle was within two to three feet of Driver's head, and the shots were fired in rapid succession. Driver was killed almost instantly.

Defendant was taken into custody. She remarked, "You don't understand. He has raped hundreds of boys." The same day, in a tape-recorded statement, defendant said that she had not intended to kill Driver at the hearing and did not know whether she had done the right thing, but was tired of all of the pain Driver had caused, and that he deserved to die. Defendant thought that W.'s pain had destroyed her sense of right and wrong. She said that when Driver smirked at her son outside the courthouse, she would have killed him right there had she already taken possession of the gun.

In the taped statement, defendant denied having used any drugs or alcohol that day. After the tape recorder was turned off, however, she admitted that she had "done crank" once that morning. While being transported to have a blood sample taken, defendant again admitted having taken methamphetamine that morning but said she did not use it all the time. The blood sample revealed a concentration of the drug in defendant's blood that might be seen in someone who had taken substantial doses during the previous one to three days.

After completion of the guilt phase of the trial, the jury found defendant not guilty of first or second degree murder, but returned a verdict of guilt on the lesser included offense of voluntary manslaughter, and also found true an allegation that defendant had used a firearm in the commission of the offense.

B. Sanity Phase

During the sanity phase of the trial, three defense experts testified that defendant was legally insane at the time of the shooting. Two diagnosed defendant as suffering from post-traumatic stress disorder resulting from her own sexual abuse suffered as a child and as a young woman, and from Driver's molestation of W. They stated that the emotional events on the day of the hearing led her to act in a manner that she believed was appropriate but that was inconsistent with socially accepted moral standards. The experts testified that defendant misperceived reality in that she believed the authorities were aware of what she was going to do, wanted her to kill Driver, and facilitated her act. Thus, for example, defendant interpreted the investigator's comment that no one would get in trouble if something happened to Driver, and the circumstance that the courtroom was almost empty when she entered, as signs that the authorities wanted her to kill him. One expert concluded that, in response to the emotionally overwhelming events that occurred on the day of the homicide, defendant suffered a brief reactive psychosis causing her to operate in a delusional manner and to lose the ability to distinguish moral right from moral wrong. All three concluded that, because of these and other mental disorders with which defendant was diagnosed, she was unable at the time of the killing to discern what was the generally accepted moral standard of right and wrong.

Two of the defense experts did not consider defendant's drug use to be particularly relevant to her mental state existing at the time she killed Driver. The other, psychologist Philip Trompetter, diagnosed defendant as suffering from amphetamine intoxication and psychoactive substance abuse at the time of the shooting. Dr. Trompetter testified defendant had reported that she started using methamphetamine in the fall of 1992 and used it on approximately 20 occasions, the last 2 of which were the night before the preliminary hearing and the morning of the hearing. Defendant suggested to him that the shooting never would have happened had she not had the drug in her system, because it caused her to have a false sense of reality and to do things she ordinarily would not have done. On cross-examination, Dr. Trompetter testified that he had received information from the Department of Justice indicating that other individuals had reported seeing defendant snorting crank in 1989, "as well as some other information about drug sales." The court granted defendant's motion to strike the reference to drug sales and instructed the jury to disregard it because it was multiple hearsay and, even if true, was irrelevant to any issue the jury had to decide.

In making his diagnosis of post-traumatic stress disorder, Dr. Trompetter noted that defendant had become protective of others and hypervigilant about the safety of her own children, and in particular about protecting them from abuse. He stated: "[S]he would usually not have baby-sitters, and would...