Tuesday, November 1, 2016
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Judge’s Comments About Plumbers Result in Reversal
Murder Conviction Overturned as Divided Panel Finds Hypothetical Statement May Have Prejudiced Jury
By KENNETH OFGANG, Staff Writer
A Los Angeles Superior Court judge’s comments during voir dire, citing her personal experiences with plumbers as an example of improperly prejudging testimony, requires reversal of the murder conviction of a defendant whose critical alibi witness was a plumbing contractor, the Court of Appeal for this district has ruled.
Los Angeles Superior Court Judge Eleanor Hunter should not have made the comments, and should have granted the defense motion for mistrial upon being informed of the witness’s occupation, Justice Jeffrey Johnson wrote for Div. One. His Oct. 3 opinion was certified Friday for publication.
The defendant, Vincent Tatum, was convicted of having shot two men in South Los Angeles in October 2013.
One of the victims, Devin Lowe, survived the shooting. His half-brother, Victor Valentine, did not.
According to testimony, Lowe and Tatum had known each other for years, and were friendly at one time. But they’d had disputes in recent years, and Tatum had told Lowe to stay out of the neighborhood where both had grown up.
Challenged to Fight
On the day of the shooting, Valentine was driving Lowe to the gym, when Tatum allegedly pulled up alongside their vehicle and harassed them until they agreed to meet him on 121st Street to fight. When the men got there, however, Tatum started shooting.
Charged with first degree murder and attempted first degree murder, Tatum went to trial before Hunter, who told a panel of prospective jurors:
“The law says that you can’t prejudge anybody. You can’t automatically give somebody more credibility or automatically give them less credibility before they even take the stand. And I always use this example—and I’m sorry if somebody here is a plumber, but I’ve had horrible experiences with plumbers….So if I hear somebody is coming in, and I hear he’s a plumber, I’m thinking, ‘God, he’s not going to be telling the truth.’ So obviously I have already prejudged that person, and I wouldn’t be able to be fair. Everyone who takes the stand, you start at the same position. Now, once they get up on the stand and they testify, that’s when you start to use your skills about judging credibility.”
Tatum’s lawyer then moved for a mistrial on the ground that “our alibi witness is a plumber.”
Hunter denied the motion, but offered to give a cautionary instruction. Defense counsel rejected the offer, saying such an instruction would “accentuate” the comments, rather than dispel them.
A second panel of prospective jurors was examined, and the judge made no mention of the “plumber” issue. The final jury was split between members of the two panels.
Plumber’s Testimony
The contractor, Major Goulsby, testified that Tatum was working for him the entirety of the day of the shooting. The prosecution argued to the jury that Goulsby was lying to protect his “buddy” Tatum, noting that no one else who worked on the job testified to seeing Tatum there, and that Goulsby was interviewed by a detective before trial and did not mention that Tatum was working for him that day.
Jurors found Tatum guilty on both counts, and Hunter sentenced him to more than 100 years in prison.
Johnson, writing for the Court of Appeal, said the judge’s comments deprived Tatum of the right to a fair trial.
“If the jury believed Goulsby, Tatum was not guilty,” the justice wrote. “But six members of the jury had heard the trial court advise them that the court herself would not believe a plumber who testified.”
There was no reason for the judge not to grant a mistrial during voir dire, Johnson said.
“No admonition or instruction could have cured the prejudice that resulted from the trial court’s statement that it believed a plumber would lie in court, when Tatum’s alibi witness was a plumber who the prosecution argued came to court to lie for his friend,” he wrote. “Under these circumstances an instruction would have been as ineffectual as the famous words spoken by the Wizard of Oz, ‘Pay no attention to that man behind the curtain!’”
Justice Victoria Chaney joined the opinion, while Presiding Justice Frances Rothschild dissented.
“No doubt the trial judge should not have shared her personal anecdote about plumbers during jury voir dire,” the presiding justice wrote. “Nonetheless, in my view, the court’s comments about plumbers did not usurp the jury’s function as the judges of witness credibility. And appellant has not shown the trial court abused its discretion when it denied his motion for a mistrial based on the court’s statements.”
Hunter’s comments were not, in context, prejudicial, Rothschild argued.
“I do not think the jurors could have reasonably understood the court’s statements to mean that plumbers are liars or that jurors should not believe them,” she wrote. Nor, she argued, could jurors have been misled, given the instructions as a whole, to believe that it would be acceptable to judge the witness’s credibility according to what he did for a living.
She further argued that the majority was wrong in concluding that any prejudice that did exist could not have been dispelled by a cautionary instruction. Defense counsel, she said, could have clarified the matter either by accepting the judge’s offer to give such an instruction, or through voir dire.
Attorneys on appeal were Danalynn Pritz, by appointment, for the defendant and Deputy Attorney General Stephanie A. Miyoshi for the prosecution.
The case is People v. Tatum, 16 S.O.S. 5448.
Copyright 2016, Metropolitan News Company