The 2nd District points out that there was no indication the distraught panelist was a ‘holdout.’
By Ana Marie Stolley
DAILY JOURNAL STAFF WRITER
Juror No. 3 was, admittedly, a little "stressed out" when she threatened during deliberations to slap her fellow jurors "upside the head" if they pushed any more of her "buttons."
Not sursprising, the trial court dismissed her from the jury. And in an unpublished opinion rendered May 25, a panel from the 2nd District Court of Appeal in Los Angeles found that the lower court properly dismissed the visibly distraught and seemingly aggressive juror.
In so ruling, the panel upheld the drug-dealing conviction of defendant Lewis Howard.
"Juror #3 stated she would physically assault anyone who ‘pushed her buttons’ again. We conclude the trial court reasonably determined it would not only be dangerous to Juror #3’s health, but to the health and safety of the other deliberating jurors as well, to even permit Juror #3 to return to the deliberating room" wrote Justice Earl Johnson, joined by Justices Mildred L. Lillie and Norvell F. Woods in People v, Howard, B119903.
"On this record, it appears as a demonstrable reality the trail court, as the responsible presiding officer, had not alternative to excusing Juror #3 to ensure the safety of the other jury members form any physical danger at the hands of Juror #3.
The juror, unidentified by the court, also asked several times to be excused, said she did not to make a decision either way and complained of being "stressed."
Peter Dodd of Yreka, counsel for Howard, said Thursday that his client may petition for review with the California Supreme Court because the juror should have never been dismissed.
"I think it’s clear that [the juror] was the lone holdout for acquittal" Dodd said. "It’s unfair for a court to dismiss a juror who favors acquittal. You’re skewing the jury towards conviction.
"There seems to be a trend in trial courts to dismiss jurors favoring acquittal who are in a minority, a minority of one" Dodd said.
Ronald A. Jakob, deuputy attorney general said he was "very pleased" with the panels decision.
"If you left on the jury a juror who is not fulfilling her duties as required by law and becoming disruptive to the deliberation process, it would not be fair to either side" he said.
"She refused to make a decision either way, she made a comment that she is not God and therefore she felt uncomfortable making a decision on the fate of the defendant. But jurors have a duty under the law to make these kind of decisions"
According to the panel, the concerned an incident across form a school in Long Beach.
Howard allegedly agreed to sell cocaine to an undercover Long Beach police officer.
After Howard allegedly handed over the drug in exchange for a $10 bill, he was arrested and charged with one count of selling a controlled substance.
Howard went to trial in Load Angeles Superior Court, where jury deliberations began on Dec, 2, 1997.
Deliberations did not go well. First of all, the jury sent the court a note with a number questions.
Then the jury forewoman sent another note with more questions, and on the back a message that Juror No. 3 "is incredibly stressed and does not feel that she can take part in this deliberation. She has asked to be excused."
Los Angeles Superior Court Judge James Pierce brought the forewoman into the courtroom and asked her to elaborate according to the panel.
The forewoman explained that Juror No., 3 appeared very upset and was "very firm" in the fact that she did not want to make a decision about the case.
The forewoman said the juror was trembling and close to tears. The juror was brought into the courtroom to explain and said that she had been up all night pondering about what to do about the case – and that she had questions that could not be answered.
The judge explained that if her questions could not be answered, she should decide them against the prosecution because it had the burden of proof.
The judge also explained that some of her questions were too investigative in nature and that a jury cannot investigate, just examine the evidence presented.
Juror No. 3 repeatedly asked to excused and explained that she had "different" views form the other jurors.
After much discussion, between the judge and the juror, Judge Pierce went over how citizens of a democracy have an obligation to serve on jury duty.
After determining that she was capable of returning to the jury, the sent her back to the deliberations room.
Not long afterward, Pierce learned that there was some sort of "altercation or whatever" in the deliberations room, the panel said.
An emotionally upset Juror No. 3 was called back into the courtroom and said that the other jurors had been "attacking" her.
Juror No. 3 said that the jurors were asking her "What if your granddaughter got drugs from this man on the street?"
Juror No. 3 then said, according to the panel, "At this point the minute one of them say anything to me, I’m going to slap them upside the head I tell you that’s the God’s truth. I told them.
"I said, you know, ‘You don’t talk about my grandkids. You don’t say anything about my grandkids. They’re babies. They’re not even in this. Why you talking about talking about my grandkids? And they knew they pressed the button.’ "
The judge replaced Juror No. 3 with an alternate juror. In less than 15 minutes, the new juror returned a guilty verdict.
Because of a prior strike, Howard was sentenced to 10 years in state prison under the state’s three –strikes sentencing law.
In affirming, the panel determined that there was no abuse in discretion in dismissing the juror.
"From the beginning it appeared Juror #3 was mentally incapable of carrying our her duties as a juror. She requested to be excused from the panel within the fist hour of the deliberations." Wrote Johnson.
"Apparently the prospect of being personally required to pass judgment on appellant’s guilt was more difficult than she may have originally anticipated."
The panel also said that there was no evidence Juror No. 3 was the holdout juror for acquittal.
The panel refused an argument that the jury engaged in misconduct by posing a hypothetical about what Juror No. 3 would do if someone sold drugs to her granddaughter.
"Jurors must be free to participate in the give and take, as well as the rough and tumble, which sometimes accompanies deliberations," wrote Johnson.
"Here is appears the other jurors were simply trying to encourage Juror #3 to rethink her unwillingness to make a decision."