P. v. Elkins

Filed 6/20/06 P. v. Elkins CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Richard E. Mills, Judge. Affirmed.

I.

INTRODUCTION

The People charged Aaron Michael Elkins and codefendant Michael Ward with having committed an aggravated assault (Pen. Code,^[1] § 245, subd. (a)(1)) (count 1) and an aggravated battery (§ 243, subd. (d)) (count 2) on victim Robert Meredith. During their joint trial, a police officer testified that Elkins told the officer that he had been involved in a fight that evening "with a friend of his." The court ordered the jury to disregard the testimony. Outside the presence of the jury, both Ward and Elkins moved for a mistrial.

Ward's motion was based on the fact that Ward's attorney would not have the opportunity to cross-examine Elkins regarding his statement to the officer since Elkins was not going to testify, and the statement implicated Ward. Elkins argued that he would be prejudiced if Ward suddenly "disappeared" from the trial, leaving Elkins to proceed at trial as the sole defendant. The trial court granted Ward's motion for a mistrial. The court ruled that the officer's testimony was inadmissible as to Ward because Ward would not have the opportunity to cross-examine Elkins as to the truth of the statement. The court also determined that Ward would suffer incurable prejudice from the jury having heard the officer's testimony. However, the trial court denied Elkins's motion for a mistrial, ruling that Elkins would suffer no prejudice as a result of the court's granting a mistrial as to Ward.

The jury found Elkins guilty of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 1) and battery with serious injury (§ 243, subd. (d)) (count 2). The jury also found that Elkins personally inflicted great bodily injury on Meredith, within the meaning of section 12022.7, subdivision (a) (count 1) and section 1192, subdivision (c)(8) (counts 1, 2). After the jury returned its verdict, one of the jurors asked the court why it had granted a mistrial as to Ward. The court explained its reasoning and discharged the jury. Elkins subsequently filed a motion for a new trial on the ground that the court had improperly denied his motion for a mistrial. The trial court denied the motion for a new trial and sentenced Elkins to six years in prison.

On appeal, Elkins claims the trial court erred in denying his motion for a mistrial. Elkins argues that he was prejudiced by the court's granting a mistrial as to Ward because the jury is likely to have concluded that the People's case was stronger against Elkins than against Ward. Elkins also claims the trial court erred in failing to conduct an inquiry into whether the mistrial as to Ward influenced the jury's deliberations, in light of the juror's postverdict question to the court. Elkins claims the court's failure to conduct such an inquiry caused the court to arbitrarily and erroneously deny his motion for a new trial. We affirm the judgment.

II.

FACTUAL BACKGROUND

On January 29, 2005, at approximately 7:30 p.m., Robert Meredith rode his new bicycle to an apartment complex in Oceanside in order to see an apartment he was considering renting. At the back of the complex, Meredith saw Elkins and Ward, in the company of two females. While straddling his bicycle, Meredith introduced himself to Elkins and Ward, and told them that he was there to look at an apartment for rent. Elkins and Ward introduced themselves as "Aaron" and "Mike." Meredith had a short conversation with Elkins and Ward, who initially appeared to be nonthreatening.

Elkins asked Meredith where he was from. Meredith told him that he was from Chicago and that he had moved "out here" about two years ago. Elkins asked Meredith if he was "down with O'C locals." Meredith said that he knew plenty of people from Oceanside. Elkins responded, "That's not what I fucking asked. I asked if you were down with O'C locals." Elkins punched Meredith in the jaw, and immediately thereafter, Ward punched Meredith in the mouth, knocking him off his bicycle. Over the next few minutes, at least four more men joined Elkins and Ward in beating Meredith. After approximately five minutes, Meredith was able to get to his feet and run away.

Meredith telephoned the police, who responded to the scene. An officer put Meredith in a police car and began to drive him around to search for his attackers. The police stopped some people who were nearby and asked Meredith if he could identify anyone in the group. Meredith identified Elkins as one of the men who had hit him. A police officer observed that Elkins's knuckles were red and that he had an injury to his knee. Police located Ward that same evening. Ward also had red knuckles and there was blood on his shoe.

Police spoke with Elkins's girlfriend, Monica Juarez, that evening. Juarez told police that she had witnessed Elkins and Ward hitting Meredith. Juarez also testified at trial that she saw Elkins hit Meredith in the face.

Meredith suffered a small laceration to his lip, a loose tooth, numerous contusions, and a fracture of two vertebras in his back as a result of the beating. By the time of the trial, Meredith had undergone one back surgery and was scheduled to undergo an additional back surgery to treat injuries he suffered during the beating.

III.

DISCUSSION

A. The trial court did not abuse its discretion in denying Elkins's motion for

a mistrial

Elkins claims the trial court erred in denying his motion for a mistrial in light of the court's granting a mistrial as to codefendant Ward. Elkins contends that as a result of Ward's sudden absence from the trial, the jury is likely to have concluded that the People's case against Elkins was stronger than the case against Ward.

1. Procedural background

During the trial, Oceanside Police Officer Tyrone Dunn testified that he transported Elkins to the police station on the evening of the incident. The prosecutor questioned Officer Dunn regarding whether Elkins had made any spontaneous statements regarding the fight:

"[The Prosecutor]: Did he make any spontaneous statements regarding the fight?

"[Officer Dunn]: Yes, ma'am.

"[The prosecutor]: What specifically did he say about the fight?

"[Officer Dunn]: He had made an indication that he was involved earlier that night with a friend of his. He had asked me--

"The Court: Wait. Wait.

"[Ward's Counsel]: Objection, your honor. Move to strike.

"The Court: All right.

"[The Prosecutor]: The specific--

"The Court: Wait. Wait. [¶] . . . [¶] Have you talked to him about this? Obviously not. [¶] I want the jury to disregard that answer by Officer Dunn. Absolutely disregard it. Don't discuss it. Don't think about it. We're going to start over."

Later that morning, outside the presence of the jury, Ward's counsel orally moved for a mistrial. He argued that he had been "stunned" by Officer Dunn's testimony, and that the testimony constituted "a bell that [could not] be unrung." Elkins's counsel also moved for a mistrial on the ground that Officer Dunn failed to admonish Elkins of his right to remain silent.

With regard to Elkins's motion, the court stated that Officer Dunn testified that Elkins's statement was spontaneous and that it was not made in response to any questioning. The court indicated that it was "not concerned" about Elkins's motion. The court stated that it was inclined to grant Ward's motion and deny Elkins's motion, but that it wanted to consider the matter over the lunch recess. After the lunch recess, the court heard further argument from counsel outside the presence of the jury as to whether or not the court should grant the mistrial motions. The court ruled:

"I find that the testimony of Officer Dunn inadvertently given not in bad faith, certainly, clearly referred to defendant Elkins [to] say, I got in a fight with my buddy Michael Ward. And there's no way that [Ward's counsel] can properly explore that or react to that statement without at least cross-examining Mr. Elkins. I don't think that's--I don't think it's going to happen.

"The reaction in my mind on the jury is the jury reacted to that statement, and I don't think that what I said to them could take it out of their minds. The consequences of a conviction in this case are potentially very severe, and I don't feel comfortable having a jury decide the case and having me thinking as the judge responsible for the fairness in the trial they may be considering the evidence I told them to disregard.

"So at the request of the defense [over] the objection of the prosecution as to defendant Ward a mistrial is declared."

Before the jury returned to the courtroom, Elkins's counsel made another oral motion for a mistrial. Elkins's counsel argued that "[i]t's prejudicial for him to go forward in Mr. Ward's absence because the jury might think Mr. Elkins [sic] plead[ed]─" After the court reporter interjected, "I'm sorry counsel," Elkins's counsel continued, "There may be consequences in terms of him [sic] should we go forward at this time."

The court denied the motion, stating:

"It's an interesting argument. I really haven't heard [that] one before, but I'm going to go forward. I don't think there's any support in the appellate--by any appellate court for that position. I don't personally believe that's going to bother the jury. I can tell them to disregard it, not to worry about it. I think it's more likely they'll think the D.A. dismissed against the co-defendant. Jurors are good in figuring out who did what based on the evidence presented, and they can decide. Had they gone forward, they would have decided each defendant's fate separately and they're still going to decide the case against Mr. Elkins, so the motion is denied."

When the jury returned to the courtroom, the trial court admonished the jury as follows:

"You probably noticed that defendant Michael Ward and [his counsel] are not here. They are no longer part of this trial. I declared a mistrial with regard to that defendant. So we're going to have another trial on his case some other time.

"Obviously, his case has nothing to do with your decision on the defendant that's remaining Mr. Elkins. So do the best you can to focus on that. Mr. Ward is not part of the trial and what he did or didn't do won't be any part of your deliberations. You'll just be considering Mr. Elkins."

2. Relevant law

"We review a trial court's ruling on a motion for mistrial for abuse of discretion. [Citation.]" (People v. Valdez (2004) 32 Cal.4th 73, 128.) A motion for a mistrial "should only be granted when a defendant's 'chances of receiving a fair trial have been irreparably damaged.' [Citation.]" (Id. at p. 128.)

3. The trial court did not err in denying Elkins's motion for a mistrial

Elkins's sole claim on appeal is that the "disappearance" of Ward at trial caused the jury to conclude that the People's case was stronger against him than it was against Ward.^[2] There is nothing in the record to support Elkins's speculation that the jury viewed Ward's mistrial in such a manner. Further, the trial court not only admonished the jury not to consider the fact that Ward was no longer in the trial, but also informed the jury both that it had granted a mistrial as to Ward and that there would be another trial on Ward's case at some future time. The court thereby dispelled any basis for the jury to speculate that codefendant Ward was no longer in the trial because there was insufficient evidence against him.

We also reject the argument that the court abused its discretion in denying Elkins's motion for a mistrial because the jury may have speculated that Ward had pled guilty and may therefore have been more likely to find Elkins guilty of the offenses. The trial court specifically informed the jury that there would be another trial on Ward's case at another time. There is nothing in the record to suggest that Elkins's chances of receiving a fair trial were damaged by the court's granting a mistrial as to Ward. (See Valdez, supra, 32 Cal.4th at p. 128.) Accordingly, we conclude that the trial court did not abuse its discretion in denying Elkins's motion for a mistrial.

B. The trial court did not err in denying Elkins's motion for a new trial

In his reply brief,^[3] Elkins claims the trial court erred in denying his motion for a new trial. Elkins maintains that one juror's postverdict question regarding why the court had granted a mistrial as to Ward demonstrated that the jury considered the mistrial during its deliberations. Elkins claims juror number 3's postverdict question triggered a duty on the part of the trial court to inquire as to how the mistrial had affected the jury's deliberations and that the court's failure to make such an inquiry led to an arbitrary denial of Elkins's motion for a new trial.

1. Standard of review

In People v. Ault (2004) 33 Cal.4th 1250, 1260 the Supreme Court observed, "Innumerable cases, both civil and criminal, have said that the trial court has broad discretion in ruling on a new trial motion, and that the ruling will be disturbed only for clear abuse of that discretion." However, the Ault court also noted that in many cases, courts "suggest that such appellate deference is appropriate for orders granting, but not those denying, new trials." (Ibid.) In particular, where a defendant raises a claim based on jury misconduct, the reviewing court must "determine independently whether the misconduct prevented the complaining party from having a fair trial." (Id. at p. 1264.) In this case, we need not determine the precise standard of review to apply to Elkins's claim, because the claim fails under any standard, for the reasons stated below. 2. Procedural background

On May 6, the clerk read the jury's verdict in open court. The court then polled the jury. Each juror indicated that the verdict as read by the clerk correctly stated that juror's verdict. The court informed the jurors that if they had "any questions [for the lawyers] about what has occurred or anything else you can feel free to talk to them." At this point, juror number 3 asked, "We--I think several of us, and I don't know if it's directed to you or towards the attorneys we were wondering why the mistrial?"

The court responded to the juror's question by explaining the basis for its conclusion that Officer Dunn's testimony regarding Elkins's statement was inadmissible as to Ward. Shortly before releasing the jury from service, the court stated:

"I can also tell you normally I would have simply told you that you no longer had to be concerned about the other defendant. I would not have offered any explanation, but my personal belief is that leads jurors to think either that the defendant had pled guilty thereby harming the chances for the remaining defendant or that somehow I had dismissed the case, which isn't fair to the prosecution, which is why I said [sic] which is more than normally we would say."

On June 5, Elkins filed a motion for a new trial on the ground that the trial court had erred in failing to grant his motion for a mistrial following the court's granting a mistrial as to codefendant Ward. Elkins claimed that the jury probably assumed he was guilty after his codefendant "disappeared in the middle of trial." Elkins argued that his theory of prejudice was buttressed by juror number 3's postverdict question inquiring as to the reason for the mistrial as to Ward. Elkins also contended that the "error and/or the misconduct" had prejudiced him. The People filed an opposition to the motion for a new trial.

The court held a hearing on Elkins's motion for a new trial. After hearing argument from the prosecutor and defense counsel, the court stated, "I don't personally feel that the trial was at all unfair to this defendant nor do I feel that dismissing or having a mistrial . . . caused him any unfair prejudice." The court denied Elkins's motion for a new trial.

3. Governing law

A trial court may grant a new trial when the court has "erred in the decision of any question of law arising during the course of the trial. . . ." (§ 1181, ground (5).) In addition, the court may grant a new trial when the jury has "been guilty of any misconduct by which a fair and due consideration of the case has been prevented."

(§ 1181, ground (3).)

"When a trial court is aware of possible juror misconduct, it must make whatever inquiry is reasonably necessary, but 'only when the defense comes forward with evidence that demonstrates "a strong possibility" of prejudicial misconduct.' [Citations.]" (People v. Carter (2003) 30 Cal.4th 1166, 1216.) "The court does have a duty to conduct reasonable inquiry into allegations of juror misconduct or incapacity--always keeping in mind that the decision whether (and how) to investigate rests within the sound discretion of the court." (People v. Engelman (2002) 28 Cal.4th 436, 442.)

4. The trial court was not required to inquire as to whether Ward's mistrial

affected the jury's deliberations

Juror number 3's question was not a question formulated by a deliberating jury, as discussed in People v. West (1983) 139 Cal.App.3d. 606, 610, a case Elkins cites in his brief. The question in this case was posed by a single juror after the jury had completed its deliberations and returned its verdict. The question suggested nothing more than that some jurors were curious as to why the court had granted a mistrial as to Ward. Nothing in the question suggested that the jury's deliberations had been infected by the court's granting the mistrial as to Ward so as to trigger a sua sponte duty on the part of the court to inquire into the possibility of such prejudicial misconduct. Further, there is nothing in the record that suggests that any misconduct actually occurred. Elkins has not presented any juror affidavits attesting to such misconduct, and instead he relies solely on speculation. Finally, for the reasons stated in part III.A, ante, the trial court did not err in denying the motion for a new trial on the ground that the court's granting a mistrial as to Ward was prejudicial as to Elkins.

Accordingly, we conclude that the trial court did not err in denying Elkins's motion for a new trial.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

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^[1] Unless otherwise specified, all subsequent statutory references are to the Penal Code.

^[2] Elkins does not claim on appeal that his statement to Officer Dunn that prompted the court's granting of mistrial as to Ward was inadmissible as to him. Neither does Elkins claim that evidence pertaining to Ward's participation in the offense would have been inadmissible but for Ward's initial status as a codefendant in the case.

^[3] We will not ordinarily consider claims that are raised for the first time in reply. (See Bandt v. Board of Retirement, San Diego County Employees Retirement Ass'n (2006) 136 Cal.App.4th 140, 152 [declining to consider appellant's contention raised for the first time in reply because respondents had not had opportunity to respond].) However, in light of the fact that the People discussed the trial court's denial of Elkins's motion for a new trial in their brief, and because the claim is related to the question of whether the court erred in denying Elkins's motion for a mistrial, we exercise our discretion to consider the claim.