Monday, February 11, 2019
Judge Was Not Obligated to Conduct Evidentiary Hearing Based on Reported Utterance During Defense Summation, Opinion Says
By a MetNews Staff Writer
A judge properly denied a motion for a new trial based on a criminal defendant’s contention that a juror committed misconduct by muttering “stupid” during the defense lawyer’s summation, the Court of Appeal for this district has held.
It added that there had been no need for an evidentiary hearing to find out what the juror intended by the remark because the defense provided no declaration from that jury member or other jurors.
Presiding Justice Arthur Gilbert of Div. Six wrote the opinion, filed Thursday and not certified for publication. It affirms the conviction of Wayne Allen Romans for assault with a deadly weapon, vandalism, and misdemeanor battery.
The convictions arose from “road rage” incidents in Ventura on Aug. 18, 2014. The victim, Julianna Dasilva, a young woman en route to her first day of classes at a community college, was at a stop at a traffic signal when Romans alighted from his vehicle and poured water on her through her open sunroof; she demanded an explanation and he merely laughed; and at another stop signal, he rammed his vehicle into hers causing body damage to the vehicle and jolting her, then drove off, again laughing.
The softly spoken utterance by the juror—who had shortly before sought to ask a question but was denied the opportunity—was discerned by the court reporter and the prosecutor, but not by the judge, the defense lawyer, or the defendant.
Ventura Superior Court Judge David Hirsch denied the motion for a new trial, explaining that, assuming the remark had actually been made by “Juror No. Three,” there was no way to interpret it absent a declaration from that juror.
Hirsch did not order an evidentiary hearing at the time that the purported remark was brought to his attention.
‘Strong Possibility’ Required
“Juror misconduct raises a rebuttable presumption of prejudice….A trial court presented with evidence of juror misconduct must consider ‘whether the evidence suggests a substantial likelihood that one or more jurors were biased by the misconduct.’…The court has discretion to determine whether to conduct an evidentiary hearing to resolve factual disputes raised by a claim of juror misconduct….A defendant is not entitled to an evidentiary hearing as a matter of right, however. A hearing should be held only when the defendant has come forward with evidence establishing a strong possibility that prejudicial misconduct has occurred.”
He went on to say:
“The trial court did not abuse its discretion by not holding an evidentiary hearing because the evidence of ‘misconduct’ did not suggest ‘a substantial likelihood that one or more jurors were biased by the misconduct.’…Romans did not present declarations from Juror No. 3 or the other jurors regarding the utterance nor did he provide evidence of the context of the sotto voce comment. Mere speculation is insufficient to support a claim of juror misconduct.”
Gilbert said an evidentiary hearing cannot be used as a “fishing expedition” to ferret out possible misconduct where the defense has not come forth “with evidence demonstrating a strong possibility that prejudice has occurred.”
Romans also argued that Hirsch erred in declining to instruct on an “unconsciousness” defense. The defendant asserted he had been in such a state owing to involuntary exposure to methane gas and that he lacked the requisite mental states for the crimes of which he was convicted.
The jurist responded:
“To constitute a defense, unconsciousness need not rise to the level of a coma or the inability to walk….Unconsciousness may be caused by blackouts, involuntary intoxication, sleepwalking or epilepsy, for example.”
However, Gilbert said, the evidence indicated that Romans acted volitionally, going off laughing after pouring water on his victim and after ramming into her vehicle.
“Romans did not meet his burden of establishing sufficient evidence of unconsciousness to warrant an unconsciousness instruction,” he declared.
The case is People v. Romans, B283595.
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