Wednesday, November 14, 2007
C.A. Approves of Additional Argument to Break Jury Deadlock
By KENNETH OFGANG, Staff Writer
A San Joaquin Superior Court judge did not abuse her discretion in reopening closing argument in order to break a jury deadlock in a criminal case, the Third District Court of Appeal ruled yesterday.
The panel affirmed Edward Young’s robbery conviction, which resulted in a 25-year-to-life prison sentence under the Three Strikes Law. In doing so, it rejected the defense argument that there was no statutory support for Judge Charlotte P. Orcutt’s decision to allow a new round of closing argument after jurors reported that they were deadlocked.
Prosecutors charged Young and Eli Hayes with robbing a USA Gas Station in Lodi, with Hayes using a firearm and Young a BB gun that simulated a firearm. A police officer who knew Young and his family identified him from a photo that was made from a surveillance tape, and the two clerks who were working at the time of the robbery identified him from a photo array.
A police detective testified to an unrecorded interview in which Young admitted his involvement, said he was sorry, identified Hayes as the other robber, and suggested he would “plead insanity” at trial. At trial in June of last year, the defense did not dispute that Young was involved, but argued that he should only be convicted of a lesser offense—attempted robbery, grand theft, or petty theft.
On the third day of deliberations, jurors reported they were deadlocked “10 to one to one” and that the lesser charges were a source of their disagreement. The foreperson said that rereading of instructions was not particularly helpful, and that it was unlikely that allowing additional time for deliberations would break the deadlock.
When some of the jurors told Orcutt that new arguments might be helpful, the judge, without objection, invited counsel to reargue. The prosecutor focused his second argument on liability based on conspiracy or aiding and abetting, while defense counsel again argued for conviction of a lesser included offense.
After something over two hours of additional deliberations, the jury found the defendant guilty of second degree robbery.
On appeal, the defense argued that reopening argument was unauthorized by law, deprived Young of due process and improperly coerced the verdict, arguments rejected by Justice M. Kathleen Butz in her opinion for the court.
Butz, who noted that a rule of court not yet in effect at the time of Young’s trial expressly permits the reopening of argument, said Orcutt acted within her authority under Penal Code Sec. 1094, which grants the trial court broad discretion to depart from the usual order of trial.
While a trial judge “must proceed carefully” when dealing with an apparently deadlocked jury, Butz wrote, there was nothing in Orcutt’s remarks to the jury that was coercive or suggested that the trial judge wanted the jury to reach a particular verdict.
Since the judge did not err, the justice continued, counsel was not constitutionally ineffective in failing to object to the procedure.
In an unpublished portion of her opinion, Butz said there was no abuse of discretion in permitting the jury to hear a readback of defense counsel’s second closing argument. Defense counsel’s failure to object to the readback did not constitute ineffective assistance, she said, because there was no error and because the lack of objection was not unreasonable as a tactical matter since it gave jurors another opportunity to focus on the defense arguments.
The case is People v. Young, C054130.
Copyright 2007, Metropolitan News Company