Tuesday, February 15, 2011
S.C. Rejects Sentence Challenge Based on Comment to Bartender
Justices Say Prosecutor Was Jesting When He Suggested Tip Was Designed to Influence Waitress Who Was Juror
By SHERRI M. OKAMOTO, Staff Writer
A prosecutor from a small town sitting at a bar did not have improper ex parte communications with a juror who worked at that establishment during the capital murder trial, the California Supreme Court ruled yesterday.
In declining to grant habeas relief to Curtis Price, the high court concluded the interaction between Deputy Attorney General Ronald Bass and a cook for Café Waterfront in Eureka did not establish Price’s claim of jury tampering by a preponderance of the evidence.
Price was convicted of the first-degree murders of Elizabeth Ann Hickey, who was bludgeoned to death during an apparent burglary, and Richard Barnes, the father of an inmate who had testified against the Aryan Brotherhood prison gang. Both murders occurred in 1983.
During the trial, the prosecution presented evidence Price was a member of the Aryan Brotherhood, had a history of other crimes, and had stabbed an African-American inmate to death while incarcerated at San Quentin prison in 1978.
After the state high court unanimously affirmed Price’s convictions and death sentence in 1991, he petitioned for writ relief, alleging that during the capital trial Bass had “improperly tampered with a sitting juror,” who had since died.
During an evidentiary hearing before Humboldt Superior Court Judge W. Bruce Watson, Bass testified that he recalled very little about the alleged incident. He said he recalled playing racquetball with Geri Anne Johnson—wife of his co-counsel Worth Dikeman—and going afterwards to a tavern for drinks and food where he learned a juror worked, but he claimed not to remember seeing the juror at that time.
Johnson—who the opinion noted was the first woman partner in a Humboldt County law firm—confirmed that she and Bass had gone to Café Waterfront one evening while the Price trial was ongoing. She said the juror approached them while they were seated at the bar, and Bass stood, moved behind her, and told the juror something like: “I can’t talk to you.”
Johnson said the juror handed her menus, suggested ordering crab cakes, and returned to the kitchen. She said she and Bass each had two drinks and some food, which cost about $25.
After she and Bass were done with their meal, she said Bass placed two $20 bills on the bar, “leaned down fairly conspiratorially,” and told the bartender to give one of the bills to the juror and “tell her to vote guilty.” Bass was smiling, Johnson said, and they all laughed “[b]ecause it was clearly a joke.”
The bartender said Johnson was a regular customer at the restaurant, and he knew she was an attorney who was married to a deputy district attorney. He testified that he knew his co-worker was a juror in Price’s trial, and he had heard about the case from the media and customer conversations.
At some point during their meal, Bass and Johnson learned the juror was working in the kitchen, according to the bartender’s testimony. Shortly before they left, the bartender said Bass gave him a tip and told him to “split this with [the juror] for a guilty verdict.” He said the tip was an appropriate amount based on the total bill, and he believed Bass was joking since Bass had “a big smile on his face” and both Bass and Johnson were laughing.
The bartender said he shared the tip with the juror since that was the custom for restaurant employees, and he may have told the juror about Bass’ comment, but he was not sure.
After a week of hearing testimony, Watson submitted an eight-page report which essentially found true the version of events related by Johnson and the bartender. Based on this report and the record of the evidentiary hearing, Justice Joyce L. Kennard concluded Price’s claim lacked merit.
Kennard also rejected Price’s contention that the burden of proof should not have been borne by him since the state’s alleged wrongdoing in failing to report Bass’ interaction with the juror prevented him from securing testimony from the juror before her death.
The justice said the “brief and accidental meeting” which “did not include any communication of significance” was not “improper jury contact” and thus there was no obligation for Bass to report the incident to the trial court.
She added that there was no substantial likelihood that the juror was biased against Price. Because the bartender understood that Bass was merely joking, even if he had told the juror Bass wanted her to vote guilty, Kennard reasoned the juror would have realized the comment was made in jest.
Also, since Bass left a tip commensurate with the food and beverages that had been ordered, Kennard said, it was not likely the juror would have viewed the incident as an attempt to influence her vote.
The case is In re Price, 11 S.O.S. 888.
Copyright 2011, Metropolitan News Company