Metropolitan News-Enterprise


Tuesday, December 9, 2014


Page 1


S.C. Orders New Hearing on Jury Misconduct in Murder Trial

Unanimous Court Says C.A. Erred in Ordering New Trial, Rather Than Allowing Trial Judge to Gauge Prejudice




The California Supreme Court yesterday ordered reconsideration of a motion for new trial in a case where jurors admittedly discussed among themselves the fact that the defendants chose not to testify and how that should affect the verdict.

The Fourth District Court of Appeal, in a 2012 ruling, said prosecutors had failed to rebut the presumption of prejudice resulting from juror misconduct and ordered a new trial for cousins Floyd Lavender III and Michael Gaines. The pair were found guilty by the Imperial Superior Court jury of the 2003 murder of Courtney Bowser.

Bowser’s body was found in a ditch near Holtville, in Imperial County, within days of her disappearance but not identified until 2006. Authorities eventually located the two people Bowser was with, who admitted that the trio had been using methamphetamine. Kristen Martin and Michael Hughes said they had been tortured by Lavender and Gaines and that Bowser had been abducted.  

Baxter Opinion

As Justice Marvin Baxter explained in yesterday’s opinion for a unanimous court, Gaines was trying to find out who had stolen a pair of blank traveler’s checks he had entrusted to a Palm Desert neighbor, Angela Vereen, whose apartment was the scene of the alleged torture.

“As Gaines was about to resume his investigation into the checks’ disappearance by pounding the flat ends of nails into Hughes’s head with a hammer or chisel, Bowser blurted out that she had taken the checks and had traded them for ‘dope,’” Baxter explained. “After beating and torturing Bowser—and telling her she was going to die—defendants handcuffed her and led her out of Vereen’s apartment.  The next morning, Vereen asked Gaines whether he and Lavender had recovered the missing traveler’s checks.  Gaines said ‘no,’ but added that ‘[t]he girl is in a canal with a bag over her head barely breathing.’”

The defense maintained that Bowser died of an overdose, and that her friends disposed of the body and concocted a story about Lavender and Gaines to tell the police in the event they were ever implicated. Jurors found both defendants guilty of murder, kidnapping, and three counts of torture.

The trial judge denied the defense motion, based on three jurors’ affidavits, for a new trial. Prosecutors argued that while the discussion of defendants’ silence was improper, it was brief and jurors were reminded that they had been instructed not to draw any inferences from defendants’ not testifying, so there was no prejudice.

C.A. Findings

On appeal, however, the Fourth District’s Div. One held that the presumption of prejudice resulting from the conceded misconduct had not been rebutted, so the defendants were entitled to a new trial as a matter of law.

In seeking high court review, the prosecution argued that the Div. One panel had exceeded its bounds by ordering a new trial, rather than allowing the trial judge to conduct an evidentiary hearing in order to determine the extent of any prejudice. The high court granted review, vacated the decision, and sent the case back to the Court of Appeal to reconsider the ruling in light of a series of cases requiring that an evidentiary hearing be held before a new trial is ordered on the ground of juror misconduct.

On remand, however, the Court of Appeal questioned whether those cases were correctly decided, found them to be distinguishable in any event, and again ordered a new trial. Both Court of Appeal decisions were unpublished.

Baxter wrote for the high court that “the Court of Appeal erred in declaring the misconduct in discussing defendants’ decisions not to testify to be categorically prejudicial without considering whether the jury was promptly reminded of the court’s instructions to disregard defendants’ decisions not to testify or whether any objective evidence in the record indicated that the reminder of the court’s instructions would have been ineffective.” On remand, he said, it would be left “to the trial court to determine in the first instance the nature and scope of the misconduct, the existence and timing of any reminder of the court’s instructions to disregard defendants’ decisions not to testify, as well as any other material disputed facts, and to reconsider the motion for new trial.”

The case is People v. Lavender, 14 S.O.S. 5537.


Copyright 2014, Metropolitan News Company