Wednesday, January 13, 2016
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C.A. Approves Fourth Murder Trial After Three Hung Juries
By KENNETH OFGANG, Staff Writer
A judge’s decision to allow a fourth trial for a murder defendant, after three hung juries, violated no constitutional or statutory provision and was not an abuse of discretion, the First District Court of Appeal has ruled.
Div. Five Monday affirmed Joseph Verducci’s conviction and sentence of 50 years to life in prison for the murder of Jose Corona. The victim was shot to death in a Vallejo bar in 2007.
Prosecutors said Verducci fired the shot that killed Corona, while aiming at Thomas Covey, a founder of the Family Affiliated Irish Mafia, or FAIM, a white supremacist gang. The assassination attempt, they contended, resulted from a falling out between Covey and co-founder Coby Phillips.
The relationship between the two soured in 2006, according to testimony, when Phillips, then in federal prison, learned of an affair between his wife and Covey’s brother. There was further bad blood because Covey was in a physically abusive relationship with Phillips’s sister-in-law, and Covey and Phillips had made multiple threats to kill each other and various family members.
Covey initially refused to cooperate with police investigating the shooting, but agreed in 2009, after FAIM members tried to kill him in prison, to testify against Verducci. In return, he received a favorable plea agreement in another case and witness protection for himself, his wife, and his son.
The first three trials resulted in votes of 8-4 to convict, 11-1 to convict, and 9-3 to acquit. Verducci moved for dismissal both before and after the fourth trial, but Solano Superior Court Judge E. Bradley Nelson denied both motions.
‘Pretty Unusual’
Nelson acknowledged that a retrial after three hung juries was “pretty unusual,” but said it was justified under the specifics of the case. He cited the “serious” nature of the charges, the likelihood of new evidence—including testimony from a witness, recently taken into custody, who was in the car that brought Verducci to the bar—the strength of the prosecution’s evidence at the previous trials, and the fact that Verducci was suffering minimal prejudice from the multiplicity of trials because he was serving a lengthy sentence in another case.
Nelson noted that the crime for which Verducci was convicted in the other case was committed with the same gun as the shooting of Corona, and the two occurred just days apart.
On appeal, the defense conceded that multiple trials do not constitute double jeopardy where none of them resulted in a verdict. But it argued that retrying a defendant after repeated jury deadlock violates due process.
Bruiniers Opinion
But Justice Terance Bruiniers, writing for the Court of Appeal, said the out-of-state cases on which the defense was relying were limited to cases in which a conviction on retrial was highly unlikely.
Bruiniers declined to adopt the prosecution argument that multiple jury deadlocks cannot form the basis for a dismissal be based on the due process clauses. But even assuming that a new trial after three hung juries might violate constitutional due process in some cases, he said, Verducci’s wouldn’t be one of them, nor did the trial judge abuse his discretion to dismiss in furtherance of justice under Penal Code §1385.
“[The trial court] specifically examined the nature of the charges, discussed the strength of the evidence, considered the burdens imposed on Verducci by retrial, and the likelihood that additional evidence would be presented at a fourth trial.
“Verducci does not contend that any of the factors considered by the court were not relevant to the exercise of its discretion. He merely contends that the trial court should have given more weight to his interests. We will not second guess the trial court’s ruling, which found particularly relevant the strength of the People’s evidence, the seriousness of the charges, and the limited prejudice to Verducci of a fourth trial.”
The case is People v. Verducci, 16 S.O.S. 199.
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