People v. Vinson, Cr. 11061

• Decision Date: 29 June 1981
• Docket Number: Cr. 11061
• Citation: 175 Cal.Rptr. 123,121 Cal.App.3d 80
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Roosevelt Virgil VINSON, Defendant and Respondent.

Page 123

175 Cal.Rptr. 123

121 Cal.App.3d 80

The PEOPLE, Plaintiff and Appellant, v. Roosevelt Virgil VINSON, Defendant and Respondent.

Cr. 11061.

Court of Appeal, Third District, California.

June 29, 1981.

As Modified on Denial of Rehearing July 29, 1981.

Hearing Denied Oct. 2, 1981.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and Edmund D. McMurray, Deputy Attys. Gen., for plaintiff and appellant.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Mark L. Christiansen, Deputy State Public Defender, Kenneth M. Wells, Sacramento County Public Defender, Kenneth M. Malovos, Supervising Asst. Public Defender, for defendant and respondent.

PARAS, Acting Presiding Justice.

The People appeal from an order granting defendant a new trial (Pen.Code, § 1238) after a jury convicted him of murder, attempted murder, and robbery (Pen.Code, §§ 187, 664, 211), with use of a firearm in their commission. (Pen.Code, §§ 12022, subd. (a); 12022.5.) The basis of the new trial motion was an allegation of judicial misconduct in that during jury deliberations the trial judge (Rothwell B. Mason), spoke briefly with a juror Mary Peruch in chambers out of the presence of defendant, counsel, or court reporter.

Defendant's motion was heard by Judge Raymond B. Roberts. Defendant presented declarations from his counsel and from Peruch. Her statement indicated that during deliberations she was the only one of the 12 to vote for acquittal, and as a consequence was receiving pressure from the others to alter her vote; she sent a note asking to see Judge Mason; he agreed to see her in his chambers; he admonished her not to say which way the jury was voting; she then told him the other jurors thought she was partial to the defendant; he replied "no comment."

The prosecution presented the affidavits of nine of the eleven other jurors. Each denied that any pressure was applied to Peruch. The live testimony of Judge Mason was also presented. He stated he received a note (not produced at the hearing) asking that he see Peruch. He consented to see her in the belief that she had personal problems or concerns, but with full knowledge that any discussion of jury deliberations would be inappropriate. He remembered the juror making a statement to the effect that "There seems to be a difference of opinion " He abruptly stopped her, saying he could not discuss the deliberations, and forthwith sent her back to deliberations. That same afternoon (February 11, 1980), he contacted both attorneys to inform them of what had occurred. On February 14, 1980, the jury rendered a guilty verdict.

After considering the evidence and listening to oral arguments at the hearing on the new trial motion, Judge Roberts made the following factual finding:

"I'm going to declare, immediately, that in my opinion, there is no impropriety, there is no reflection on Judge Mason's credibility, there is no evidence of any coercion or erroneous instructions, but I am confronted with the problem that I think that this is a woeful case of the appearance of impropriety, and I think it's compounded by the fact that the note from the jury to the Judge has mysteriously disappeared, which may or may not give some inkling as to how the confrontation could have been avoided, if there was any statement on the note as to the nature of the request for the personal interview.

"The bailiff wasn't present during the interview, the defendant was not present, and the reporter was not present, and I think that I could analogize it to a Judge going into the jury room and coming out and no matter what was said from then on, the reflection would be that something improper had happened.

"I take the position that Judges, like Caesar's wives, must avoid the appearance of impropriety, more than the impropriety itself, and based thereon, the motion for a new trial is granted."

It is a long established rule that any private communication between judge and jury is improper. (Paulson v. Superior Court (1962) 58 Cal.2d 1, 7, 22 Cal.Rptr. 649, 372 P.2d 641; People v. Alcalde (1944) 24 Cal.2d 177, 189, 148 P.2d 627; People v. Knighten (1980) 105 Cal.App.3d 128, 132, 164 Cal.Rptr. 96.) " '(A)ll communications should be made in open court Ordinary procedure would require that the trial judge afford the parties an opportunity to be apprised of any such communication and to have the opportunity to make timely objection to any action by the court or jury which might be deemed irregular.' " (Paulson v. Superior Court, supra, 58 Cal.2d at p. 7, 22 Cal.Rptr. 649, 372 P.2d 641; People v. Weatherford (1945) 27 Cal.2d 401, 419, 164 P.2d 753; People v. Lee (1974) 38 Cal.App.3d 749, 754-755, 113 Cal.Rptr. 641.) Judge Mason's private conversation with the juror was thus technical error.

However, in these circumstances we cannot agree with Judge Roberts that a new trial is in order. In People v. Alcalde, supra, 24 Cal.2d at page 189, 148 P.2d 627, the jury sent a question to the judge regarding the defendant's possible sentence. The judge sent back a curt, private response to the jury. Although the court found error, it also found no prejudice. People v. Woods (1950) 35 Cal.2d 504, 512, 218 P.2d 981, involved a discussion, in chambers, between the judge and a juror, in which the judge explained the meaning of the term "hung jury." The court found that although this was improper, "nothing took place in the conversation complained of which could possibly have prejudiced defendant " Similarly here Judge Roberts in effect found no prejudice; and in our view a contrary finding or conclusion is inconceivable. Peruch herself avers that Judge Mason told her nothing regarding the case ("no comment"). Indeed, unlike the cited cases in which the trial judge said or wrote something to jurors concerning the case, Judge Mason, here terminated the conversation the instant he learned that Peruch's problem related to deliberations. Thus he did not himself communicate to the juror at all in the Paulson case sense (see quote supra).

Trial judges are beset by a multitude of concern during the course of trial, not the least of which may be personal problems of jurors. To whom else should these be referred? The judge alone has the power to vary procedures and schedules where necessary to accommodate a juror's special need. Indeed it is the judge's duty to devote attention to such matters. While in the vast majority of instances they can be handled in the orderly fashion related in Paulson, there are times when a trial judge will consciously risk technical error (error only because it violates the word of Paulson, not its spirit) by conversing privately with a juror. It is not every personal juror's problem that can or should be addressed in open court, or even through a...