People v. Pierce

• Decision Date: 10 May 1979
• Docket Number: Cr. 20003
• Citation: 24 Cal.3d 199,595 P.2d 91,155 Cal.Rptr. 657
• Court: California Supreme Court
• Parties: , 595 P.2d 91 The PEOPLE, Plaintiff and Respondent, v. Lawrence Raymond PIERCE, Defendant and Appellant.

Page 657

155 Cal.Rptr. 657

24 Cal.3d 199, 595 P.2d 91

The PEOPLE, Plaintiff and Respondent, v. Lawrence Raymond PIERCE, Defendant and Appellant.

Cr. 20003.

Supreme Court of California, In Bank.

May 10, 1979.

Appellate Defenders, Inc., under appointment by the Supreme Court, Handy Horiye and Stephen J. Perrello, Jr., 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, Harley D. Mayfield and John W. Carney, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant Pierce appeals from a judgment on a jury verdict convicting him of second degree murder. (Pen.Code, §§ 187, 189.) He contends that (1) prejudicial jury misconduct occurred during the course of the trial, (2) the evidence was insufficient to support the verdict, and (3) the court erred in refusing a certain jury instruction on reasonable doubt and in admitting a photograph of the fatal injury. We conclude the first of these contentions is meritorious and requires reversal of judgment.

Because there is an attack on the sufficiency of the evidence, the facts will be set forth at some length. Pierce is the co-owner of a gas station in El Cajon. On the night before the murder he played poker at his home until 4:30 a. m., losing about $1,300. During the course of the game, one of Pierce's employees telephoned to report that the attendant scheduled to work the midnight shift had called in sick. Pierce told the employee to contact Dale Huffington, a new employee, and ask that Huffington cover for the ill man. In a subsequent phone call, Pierce learned that Huffington had refused to come in at midnight. Pierce then directed that Huffington report for the day shift at 8 a. m.

Both Pierce and Huffington arrived at the gas station at 8 o'clock. Huffington went to work pumping gas and Pierce busied himself about the office. Shortly after 9, Pierce told Bruce Ballard, a mechanic working in the lube area of the station, that he had received a service call for a yellow Cougar automobile needing assistance on a nearby street. No one else had heard the phone ring. Ballard entered the station's tow truck to answer the call, but noticed the vehicle was almost out of gas. He drove the truck to the gas pumps, and then returned to the lube bay to report to Pierce. When he arrived, he saw Pierce behind a flight of stairs in the storage room, bent over and clutching what Ballard thought was a red-handled windshield squeegee. Pierce dropped the instrument and walked out to the gas pumps with Ballard. According to Ballard, Pierce was acting strangely. They fueled the truck and, as Ballard was about to leave, Pierce said one or two armed men had entered the station over the back fence. He told Ballard to notify the police. Pierce went back into the station and Ballard drove around the corner, out of sight of the station. After an unsuccessful attempt to use the phone at a nearby residence, Ballard managed to contact the police on his CB radio. He then drove to an adjacent gas station to await the arrival of patrol officers.

Meanwhile, a customer had pulled up to the gas pumps at Pierce's station and had begun to put gas into his car. He saw no one, but heard hammering sounds, like metal on metal, coming from the lube bay. Shortly thereafter the police arrived, surrounding the station. Neither Ballard, the customer, nor the officers saw anyone leave the premises. The police cautiously entered the storage room. Pierce was on the floor, crawling towards the door; Huffington was slumped in a corner, a hammer embedded in his skull. There were blood spatters on Pierce's hands and clothing.

Paramedics transported Pierce and Huffington to the hospital. The hammer, by now dislodged from Huffington's skull, had been handled by several people at the scene. Huffington died in the emergency room. There were no visible injuries to Pierce, although one physician found swelling and evidence of a muscle spasm in his lower back.

Pierce told the police, and testified at trial, that after he sent Ballard on the service call, Huffington called out from the back room. Pierce went to investigate, and on entering the storeroom, saw a man wearing a red windbreaker jacket and stocking mask. The man had a .38 caliber revolver in his left hand, and with his right hand was hitting Huffington, who apparently had become hysterical. Pierce could not recall if he was using his fist or a weapon. Meanwhile, Ballard had returned to the lube bay after discovering the tow truck needed gas. The assailant instructed Pierce to get rid of Ballard. After Pierce complied, the robber ordered him into the office and emptied the cash register. Pierce was then led back to the storeroom; just after entering, he was assertedly struck from behind with a blunt instrument and fell on top of Huffington's nearly supine body. Pierce testified he believed there may have been an accomplice in the storeroom.

Police investigators could find no sign that anyone had climbed the fence at the rear of the station, nor could they locate anyone remembering a disabled yellow Cougar. They did learn Pierce was having financial difficulties. Pierce carried robbery insurance with coverage to $1,000.

At trial, there was conflicting testimony as to the amount of money, if any, missing from the cash register. There was also expert testimony that the bloodstains on Pierce's clothing were consistent with his being in the storeroom when the fatal blows were struck.

I

Pierce's primary contention is that he was prejudiced by jury misconduct occurring during the course of trial. On voir dire a prospective juror named Seymour acknowledged that he was "Very, very familiar" with the case and that one of the first policemen to arrive on the scene, Officer Carl Case, was a neighbor and "very personal friend of mine." The prosecutor advised the court that he intended to call Case as a witness. The court and defense counsel immediately proposed to excuse Seymour but the prosecutor suggested further inquiry. Although Seymour admitted he had previously spoken with Case about the crime, he asserted that he would give no special weight to Case's testimony and in particular that he could refrain from having any conversations outside the courtroom about the trial. Seymour was eventually seated without challenge, and was later elected foreman. At adjournment the court fully admonished the jurors against talking about the case among themselves or with third persons, emphasizing their solemn obligation to avoid any such contacts. The jurors all agreed to remember and obey the admonition, which the court thereafter repeated to them at the end of each day of the proceedings.

Despite the foregoing promises and warnings, Seymour subsequently approached Case at his home and talked with him about the trial. In the course of the conversation Seymour asked and Case answered several questions about the state of the evidence and the district attorney's method of presenting his case. The incident took place after Case had testified for the prosecution and the People had rested, and while Pierce was putting on his defense. Some two weeks later, after the jury had returned its verdict of guilty, one of Case's supervisors overheard him discussing his prior contact with Seymour. The supervisor reported the matter to the police chief, and the police department and the district attorney's office conducted a joint investigation into the incident. Their reports were furnished to the court and to defense counsel.

The reports disclosed four matters relating to the trial that Seymour had discussed with Case. Thus Seymour asked Case why fingerprints had not been taken from the murder weapon. Case replied that the surface of the handle was such as to make it difficult to lift latent prints; and he further suggested that any such prints would be of debatable value because Pierce owned the hammer and both he and his employees had undoubtedly handled it in the course of their work. Seymour also asked Case why the jury had not been shown all the photographs used in the trial. Case did not know which photographs he was referring to, but explained that they may have been withheld from the jury because they were "gruesome." ¹ Two lesser matters were also discussed. According to Case, Seymour asked him why the district attorney would bring up a point and then drop it, and Case replied that he did not know what the prosecution's tactic was; Seymour denied asking this question. Also according to Case, Seymour queried the adequacy of the police sketch of the crime scene and said that he and other jurors wanted to see the room where the murder took place; Case could not recall his answer, and Seymour stated he did not remember asking the question. ²

Upon receipt of this information, Pierce immediately moved for a new trial. (Pen.Code, § 1181, subd. 3.) Rather than hold an evidentiary hearing, however, the court relied exclusively on the investigatory reports prepared by the police and the district attorney. ³ The court denied the motion ruling that Seymour's act of discussing the trial with Case did not result in a miscarriage of justice because it was not "reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error." (See People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, 254.) As will appear, the court used an incorrect standard of prejudice in the circumstances.

There is no question that juror Seymour committed serious misconduct. Penal Code section 1122 commands that at each adjournment prior to submission the court must admonish the jurors that "it is their duty not to converse among themselves or with anyone else on any subject connected with the trial . . . ." The jury herein were so instructed. Nevertheless, in derogation of his oath as a juror and his specific promise on voir...