P. v. McKenzie

Filed 8/1/07 P. v. McKenzie CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Bobby Antoine McKenzie challenges his conviction for first degree murder on the ground his trial was tainted by prejudicial misconduct by both the prosecutor and the jury. We find the prosecutor engaged in a troubling and extensive pattern of misconduct. But upon careful analysis of the entire record, we are convinced that the misconduct did not affect the verdict. We also find the claim of prejudicial juror misconduct unpersuasive. Accordingly, we affirm the judgment.

BACKGROUND

Around 1:20 a.m. on September 20, 2002, defendant shot and killed 62-year-old Abdul Nawabi as Nawabi sat in his car near the corner of 49th Avenue and East 12th Street in Oakland. Nawabi was killed by a single shot to the left side of his face, in front of his left ear. The bullet, fired from a distance of four to six inches from Nawabis face, fractured his cheekbones and skull and passed through his brain.

Dorialynn Butcher was working as a prostitute on the corner of International Boulevard and 49th Avenue when she noticed a police officer pulling over a driver. Since Butcher was on probation and had been ordered to stay away from this area, she crossed 49th Avenue and walked down the street toward East 12th Street. There was no traffic on 49th Avenue.

A small car turned onto 49th Avenue from East 12th, parked in a dark area and turned off its lights. Suddenly, a white Ford Explorer sped around the corner from the same direction and came to an abrupt stop next to the small car. A man in dark clothing got out of the passenger side of the Explorer. He stepped toward the car, took a stance and extended his right arm toward the person sitting in the drivers seat of the small car. The man fired one shot and jumped back into the Explorer. Butcher did not see any struggle between the shooter and the driver of the car. The shooter did not bend down or pick anything up off the ground. The Explorer sped away down 49th Avenue and turned right onto International Boulevard.

Butcher ran back to the officer she had seen earlier and told him someone had been shot. The officer, Victor Arvizu, followed her back to the victims car, where he found Nawabi upright in the drivers seat with his head against the headrest and tilted to the right, bleeding profusely from the mouth. Officer Arvizu observed a bullet wound and gunpowder burn on Nawabis left cheek. Nawabi died several hours later at the hospital. The pathologist who examined him opined the gun was fired about four inches from Nawabis head.

No weapons were found inside Nawabis car. The glove compartment was closed. There was an expended casing from a .25 caliber gun on the front passenger floorboard and a live .25 caliber round on the street by the rear door. A criminologist testified that a live bullet could be on the ground either because someone dropped it or because it was ejected when someone pulled back the guns slide.

Within minutes of the shooting, Officer DVour Thurston and his partner spotted and stopped the Explorer traveling southbound on 50th Avenue. Officer Thurston saw the passenger in the right rear seat bend down as if trying to hide something. Defendant was in the front passenger seat, his brother Dionte McKenzie was in the rear passenger seat, and the driver was Juanita Davis. A semiautomatic pistol wrapped in a jersey was found under the right rear passenger seat. There was ammunition in a cup holder. Two video cameras were also found in the Explorer. One of them contained footage of pimps and prostitutes that defendant said he had taken earlier that day.

Dionte McKenzie^[1]testified that on September 19, 2002, he, defendant and Robert Clark drove Clarks Explorer to Sacramento, where they picked up two teenage girls at a mall. None of the men had met the girls before. All five drove to Martinez, where they spent the night at defendants house. The next day they picked up Davis, defendants girlfriend, in Oakland and drove to San Francisco, where the group tried to sell some of their rap CDs. Davis was driving. Sometime around midnight the group returned to Oakland, where they parked near a store on International Boulevard and 19th Avenue.

Dionte testified that Clark and the two girls got out of the car so that Clark could buy some cigars. Dionte denied the two girls were out on the street to prostitute themselves and denied that Davis got out of the Explorer to teach them how to turn tricks.^[2] He also denied that at some point one of the girls had disappeared, and that he thought she got into the shooting victims car. Instead, Dionte testified that an elderly man, later identified as Nawabi, twice drove past them and screamed something unintelligible at the group through his open car window. It seemed like something was wrong with the man, but nobody in the Explorer felt threatened by him. According to Dionte, defendant said Nawabi was talking shit to him when he drove by.

Clark and the girls were taking a long time at the store, so two or three minutes after Nawabi drove off, defendant, Dionte and Davis drove off to get clothes for Davis from her house.^[3] Dionte testified that a few minutes after pulling out they caught up with Nawabis car at a light, where defendant and Nawabi exchanged words.^[4] Nawabi turned right off International Boulevard. Davis cut across a lane to turn right after him. Defendant decided to follow Nawabi because he wanted to see what was wrong with him.

The Explorer followed Nawabis car as it turned left on East 12th and left again on 49th Avenue. Nawabi parked on 49th Avenue and turned off his lights. Davis pulled the Explorer up beside Nawabis car. Defendant got out, walked up to Nawabis window, and asked, Whats wrong? Dionte heard Nawabi yelling, like something was wrong, but could not understand anything Nawabi was saying. Dionte told the police the two men had a tussle, but denied that at trial. He also contradicted his statement to the police that defendant put his hands through Nawabis open car window. Dionte heard his brother say Oh shit, then heard a shot.

Defendant jumped back into the Explorer. Dionte asked him what happened. Defendant told Dionte that Nawabi was reaching for the glove box, and said He was going to kill me. Dionte had also seen Nawabi reach toward his glove box. Defendant, Dionte and Davis drove off.

When questioned by the police, Dionte initially said he was asleep in the back of the Explorer until the police stopped the car. He also told the police that only he, defendant and Davis were in the car that night, and did not mention Clark or the two teenage girls. Dionte was more forthcoming in a second interview with police after defendant had admitted to the shooting, but he never said to police that the victim was screaming, that the victim had flagged them down or waved them over, or that defendant had asked the victim if he was all right.

The police questioned Robert Clark that night, but subsequent efforts by law enforcement officers to locate him were unsuccessful.

Defense Case

Forensic scientist John Jacobson testified that the particular model semiautomatic pistol used to shoot Nawabi had a defect that made it susceptible to accidental discharge if dropped or carelessly handled. Johnsons written report said the gun did not discharge when he tested it twice by hitting it with a hammer, but he testified that it did in fact discharge during one of the tests. Defendant testified that he accidentally dropped the gun just before the shooting.

Defendants father testified that he gave defendant the gun for safety because he goes fishing at night and You never know whats going to come out of the woods.

Like his brother, defendant said that he, Dionte and Clark traveled to Sacramento where they picked up the two girls. They drove the girls back to Martinez, where they all spent the night at defendants house. The next day the group picked up Davis, drove to San Francisco and then headed back to Oakland around 10:00 or 11:00 p.m.

Defendant admitted he had his fathers gun that night. He testified that he took the gun with him when he went fishing because he was once confronted by a big wild elk. He also took it to his job as a longshoreman because the docks are dangerous. On the day of the shooting defendant had the gun in his coat pocket because he thought he was going to be called to work that night. He did not even remember the gun was there.

Clark wanted cigars, so they stopped on International Boulevard and Clark went to the store with the two girls. Defendant had stepped out of the car to put on his coat when Nawabi drove up on the opposite side of the street, gestured with his hands, and said something unintelligible. He drove off, but returned two or three minutes later from the opposite direction, again gestured, said something unintelligible like something was wrong with him, like he was amped up, and then sped away.

Defendant testified that after three or four minutes Davis, who was driving, decided to get clothes from her house, leaving Clark and the two girls behind; their departure, he said, had nothing to do with Nawabi. After a couple of blocks they pulled up to a stop light and saw Nawabi in his car in the right lane. Nawabi again gestured with his hands and said something that defendant could not hear. After the light turned and the cars drove on, Nawabi appeared to flag the Explorer to follow him. As he continued to wave defendant and his companions on, they got behind and followed. Defendant thought something was wrong with Nawabi. Nawabi parked and Davis pulled up next to him. It was very dark. Defendant got out of his car, walked up to Nawabi and said Whats wrong with you? Nawabi started screaming and acting hysterical, like he was going crazy; his face looked like he turned into the devil or something. Defendant was scared and backed away.

Nawabi said, Ill kill you, and reached for the glove compartment or something on the passenger side of his car. Defendant was scared and wanted to run away but could not because of how the Explorer was positioned and because he was scared Nawabi would shoot him in the back if he ran. He reached into his pocket and tried to grab his gun. The gun fell to the ground. Defendant bent down to retrieve it and when he stood up the gun went off. Defendant did not know if he fired the gun intentionally; everything was happening quickly. He did not aim the gun at Nawabi and he was not looking in Nawabis car, but he pointed the gun toward the cars interior because he thought Nawabi was going to shoot him.

After the shooting defendant ran back to the Explorer and jumped in. He was scared. Davis drove off. Defendant removed some bullets from his pocket and tried to kick the gun under the seat.

On cross-examination, defendant could not explain how it was that he shot Nawabi in the very center of his head and from a distance of six inches or less. He did not know how far the gun was from Nawabis car when he pulled the trigger. He admitted he initially lied to the police when he told them where he got the gun and to whom the video camera belonged.

The jury found defendant guilty of first degree murder and found various related enhancement allegations to be true. Defendant filed a motion for access to juror identifying information, which the court granted as to two jurors but denied as to the other 10. The court later reaffirmed this order but permitted the defense to seek juror contact information through independent sources. The court denied a motion for new trial brought on grounds of prosecutorial and juror misconduct, and sentenced defendant to 50 years to life. This appeal timely followed.

DISCUSSION

Prosecutorial Misconduct

Defendant contends the prosecutor, Brian Owens, committed prejudicial misconduct when he repeatedly questioned witnesses about statements Davis and Clark made to the police after the shooting. He maintains the prosecutor was trying to get the contents of those statements before the jury despite their undisputed inadmissibility. Because those patently inadmissible statements were crucial to the prosecutions theory of premeditated murder, he argues, the pervasive misconduct requires reversal. We agree with the trial court that the prosecutor engaged in serious and protracted misconduct. Defendants argument fails, however, because we also agree with the trial court that the misconduct did not affect the jurys verdict.

Background

Police interviewed Davis and Clark after the shooting. Both told the police that the group went to International Boulevard so they could prostitute the two girls. The men were acting as pimps and Davis showed the girls how to sell themselves. One of the girls got into a Mazda. When she failed to return, defendant, Davis and Dionte took off in the Explorer to look for her. Davis told police that when they caught up to Nawabis car defendant asked where the girl was, but Nawabi kept driving. After Nawabi stopped on 49th Avenue, defendant got out and repeated the question. Nawabi bent down as though to reach for the glove compartment; defendant took his gun from his pocket, put his hands through Nawabis car window and shot him.

Clark said that around 4:30 a.m. he walked to the house of defendants father, Bobby McKenzie, Sr. When Clark told defendants father what they had been doing on International Boulevard, his response was I told you, you shouldnt be doing that. Especially out here.

Juanita Davis

The prosecutor called Davis as a witness and offered her use immunity. Despite the grant of immunity and a court order directing her to testify, Davis refused to answer any questions. In light of her refusal, the prosecutor conceded, and the court found, that Daviss testimonial statement to the police was inadmissible under the rule announced in Crawford v. Washington (2004) 541 U.S. 36.

Because Davis had no valid Fifth Amendment privilege, the trial court permitted the prosecutor to call her before the jury as a witness. (See People v. Lopez (1999) 71 Cal.App.4th 1550, 1554-1556.) The prosecutor submitted a list of 13 questions he proposed to ask Davis. The court permitted him to ask only those questions that generally concerned Daviss relationship with defendant, and explicitly prohibited questions that suggested defendant and his companions were pimping the girls the night of the shooting in the absence of evidence, independent of Daviss statement to police, that prostitution was involved. The court said, Because if the only person who places the issue of prostitution in there is Ms. Davis, through her statement to the police, that is proper [sic] in your theory of the case through a question. And no matter how much I notify the jury that a question is not evidence, that does not unring a bell. The court also noted that a number of the prosecutors proposed questions for Ms. Davis are leading and improper at this time. I do not want there to be any implication that Mr. McKenzie has threatened or intimidated the Witness.

Robert Clark

Clark did not testify at trial. An inspector for the district attorney testified about his unsuccessful efforts to serve Clark with a subpoena. The inspector went to Clarks residence several times, had another inspector make periodic checks on his residence, contacted the police departments in Benicia, Vallejo and American Canyon in an effort to locate Clark, spoke with Clarks relatives, and left notes for him at several residences. None of these efforts were successful.

The Prosecutors Opening Statement

In his opening statement, the prosecutor said Davis gave a taped statement to the police but had recently stopped cooperating with law enforcement and would refuse to testify at trial. He also told the jury he would be asking Dionte if the two juvenile girls were being put out on the street by them as prostitutes but that Dionte would probably deny it.

Diontes Trial Testimony

The prosecutor asked Dionte whether he and defendant put the girls on the street at 19th Avenue and International Boulevard to act as prostitutes; whether Davis got out of the car to teach them how to turn tricks; whether there was an agreement that the girls would take their johns around the corner to do their tricks; whether at one point defendant and Dionte thought one of the girls had disappeared after getting into the victims car; and whether defendant had asked the victim, Wheres the girl? Wheres the girl? before he shot him. Dionte denied that the group was prostituting the girls. The prosecutor also asked Dionte if the girls were around 15 and 17, but Dionte responded that they were 19. He also asked whether it was fair to say that Dionte did not want the police to talk to Clark because they would find out what the group was doing with the girls on International Boulevard that night. Dionte denied this as well.

Bobby McKenzie, Sr.s Testimony

Bobby McKenzie, Sr., defendants father, testified for the defense. On cross-examination, he testified that Clark walked to his house after the shooting. The prosecutor asked whether Clark told him what he, defendant and Dionte were doing with the two girls, and whether McKenzie, Sr. said to Clark, quote, I told you shouldnt be doing that, especially out here?  When McKenzie, Sr. replied that he did not know anything about Clark, the prosecutor asked, Would you like to see a transcript? Following an objection and a bench conference, the prosecutor asked McKenzie, Sr. if he had a conversation with Dionte about what had happened that night. Defendants father denied that any such conversation took place.

Defendants Testimony

On cross-examination, the prosecutor asked defendant if it was true that he and his friends had stopped on International Boulevard to put the girls out on the street as prostitutes; whether there was an agreement that the girls would find a john, turn their tricks around the corner in the johns car, and return to 19th Avenue and International Boulevard to work more; whether one of the girls disappeared; whether defendant saw the victims car pull up next to one of the girls and whether he decided to pursue the victim to determine whether the girl was in his car; and whether he yelled to the victim, Wheres the girl? Wheres the girl? Defendant answered each of these questions with a negative reply.

The prosecutor also asked whether defendant knew that Davis and Clark had given statements at his defense attorneys office; the court sustained a defense objection that the questioning assumed facts not in evidence and, when the prosecutor asked again whether defendant was aware of Daviss taped statement, the court instructed him to ask only facts that relate to facts in evidence. The prosecutor also asked defendant, without objection, whether he had threatened or directed others to warn Davis not to testify, and whether he was surprised when she suddenly refused to answer questions. Defendant said he was surprised that Davis would not testify and denied having anything to do with her refusal.

On recross, the prosecutor asked defendant Why would you be afraid to tell the police about what you guys were doing on International Boulevard and 19th Avenue if you werent out there pimping those two girls? Defendant replied that he just did not want anybody else involved. The prosecutor asked whether defendant had spoken to Davis or Clark about their version of the events and, again, whether he had anything to do with Clark or Davis not testifying. Defendant responded that he did not.

The Prosecutors Closing Argument

During his closing and rebuttal arguments, the prosecutor repeatedly emphasized that defendant and Dionte denied they were trying to pimp the girls the night of the shooting and suggested that Davis and Clark would have contradicted those denials if they had testified; that Clark would have been a logical defense witness for defendant to call; that Clark had given a taped statement that the jury could not hear because Clark did not testify; and that, since Davis had been given immunity, then why is she going to jail rather than testifying? At this point, the court admonished the prosecutor not to ask the jury to speculate about the motivation of people who were not present in court.

Motion For New Trial

Defendant moved for new trial based, in part, on allegations of prosecutorial misconduct. Defendant argued that the prosecutor used tactics that implied he possessed evidence unknown to the jury, but known to him. The prosecutor, as he questioned witnesses, would hold papers in his hand as if he had a transcript or statement from that witness and/or another witness. He would then tailor his questions as if he had evidence or statements that were contained in these papers. The prosecutor would use this tactic when referring to Juanita Davis and Robert Clark, the two unavailable witnesses, and when he questioned witnesses about the defendants involvement in pimping and prostitution. Defendant also contended the prosecutor had asked multiple witnesses whether defendant was a pimp or was prostituting the two girls, using the [i]snt it true . . . form of questioning to, in essence, get statements across to the jury that had no evidentiary basis and violated the defendants constitutional rights. Defense counsel argued the prosecutors questions were improper because he knew the evidence was not coming in, and the court is quite clear you can look at the implication. Was there an implication that evidence is known to the prosecutor that is not known to the jury is not admissible. I think any reasonable person who watched this trial would say there was an implication in this case that that was the case, that [the prosecutor] knew evidence of prostitution and pimping that I kept out . . . .

The trial court denied the new trial motion. While the court agreed with defense counsel that the prosecutor tried to bring suppositions of prostitution before the jury, it also found that any implications that [the prosecutor] made, by your statements or by evidence that you attempted to bring into the jury did notagain, did not rise to the level to which there would be a new trial granted on the grounds of prosecutorial misconduct because I dont believe that these factors that you injected or attempted to inject or in fact the jury may have considered in making their determination really related to the degree of homicide of which Mr. McKenzie was convicted.

Analysis

I. Prosecutorial Misconduct

Defendant contends the prosecutor deprived him of a fair trial and violated his Sixth Amendment rights to confront witnesses when he repeatedly referred to the out-of-court statements of Davis and Clark when he was examining witnesses. The rule is well established that the prosecuting attorney may not interrogate witnesses solely for the purpose of getting before the jury the facts inferred therein, together with the insinuations and suggestions they inevitably contained, rather than for the answers which might be given.  (People v. Wagner (1975) 13 Cal.3d 612, 619.)For this reason, a prosecutor may not ask questions which clearly suggest the existence of facts . . . harmful to defendant unless he or she has a good faith belief that the witness will answer the question affirmatively or that the implied facts may be proved later on in trial. (People v. Chojnacky (1973) 8 Cal.3d 759, 766; People v. Perez (1962) 58 Cal.2d 229, 241, disapproved on other grounds in People v. Green (1980) 27 Cal.3d 1, 32, 34; People v. Lo Cigno (1961) 193 Cal.App.2d 360, 387-388.) As our Supreme Court has noted, The problem in applying this rule is that it makes the issue turn on the prosecutors good faith, and the record will rarely contain evidence bearing on that matter. (People v. Bittaker (1989) 48 Cal.3d 1046, 1098.)

The People argue that the prosecutor undeniably had a basis for a good faith belief that defendant and his associates were attempting to prostitute the two girls the night of the shooting. The issue, however, is whether the prosecutor had a good faith basis to believe he could prove the facts communicated to the jury through his questioning without some evidence other than the inadmissible statements of Clark and Davis. The record provides little basis for such a belief. Clark was listed as a potential trial witness, and the prosecutor might in good faith have anticipated locating him before the trial ended. But he could not possiblyhave harbored such an expectation when he continued to refer to Clarks statement during his closing argument. Moreover, Mr. Owens knew at the outset of trial that Davis would refuse to testify and that Dionte would probably deny any involvement with prostitution.

Plainly, the prosecutor did more than merely question witnesses about a theory he believed he could support with admissible evidence. His questions hit every key point from Daviss and Clarks statements: that defendant and Dionte were on International Boulevard because they were pimping the two girls; that the two girls were minors; that one of the girls got into Nawabis car; and that defendant approached Nawabis car and twice asked him where the girl was. In the context of this questioning the prosecutor repeatedly asked Dionte and defendant about Clarks and Daviss version of events, whether they knew what Clark and Davis would have told the police, and if they were afraid of what Clark would tell the police about their activities on International Boulevard. He also improperly tried to impeach Mr. McKenzie, Sr. about what Clark told him that night by asking if he would like to see a transcript, presumably of Clarks statement. The clear implication for the jury was that the prosecutors questions were based on the statements Clark and Davis had given the police. (See People v. Shipe (1975) 49 Cal.App.3d 343, 349-350.) The only conclusion we can draw from Mr. Owenss dogged pursuit of this line of questioning is an intent to insinuate the existence of evidence he could not properly bring before the jury. Because the veracity of those inferred statements could not be tested without Clark and Davis taking the stand, the tactic violated defendants Sixth Amendment rights to confrontation and cross-examination. (See Douglas v. Alabama (1965) 380 U.S. 415, 419; Hardnett v. Marshall (9th Cir. 1994) 25 F.3d 875, 879-880.) As stated in similar circumstances in Hardnett, the effect of the prosecutors questions was to insinuate not at all subtly that he had in his possession statements . . . that corresponded to the statements he put in the form of questions. Evidence could have been disputed. The prosecutors remarks instilled a poison which the defense could not drain from the case. (Hardnett, supra, at p. 879.)

The question, then, is whether Mr. Owenss misconduct was nonetheless harmless beyond a reasonable doubt. (See People v. Shipe, supra, 49 Cal.App.3d at p. 355; People v. Gaines (1997) 54 Cal.App.4th 821, 826-827.) In the specific circumstances here, despite the gravity of the misconduct, we are convinced it did not affect the verdict. First, the properly admitted evidence at least suggested that defendant and his cohorts had driven to International Boulevard that night in order to have the girls work as prostitutes. The group took the girls late at night to a location known for prostitution activity. The girls got out of the Explorer, ostensibly to accompany Clark to purchase cigars, and they disappeared for somewhere between one and three hours. Neitherdefendant nor Dionte gave a credible explanation for their prolonged disappearance. A video camera containing footage of pimps and prostitutes was found in the Explorer; although at trial, he denied that the camera was his, defendant told police he had taken the footage earlier that day because I document, like, a lot of stuff. Butcher, an admitted prostitute, testified the shooting occurred in an area customarily frequented by prostitutes and their johns. The prosecutors misuse of the Clark and Davis statements may have added meat to these bones, but the jury would certainly have drawn the inference of defendants involvement in prostitution without the improper questioning.

Second, the evidence of guilt was overwhelming. The evidence unequivocally shows that defendant pursued, approached and shot the victim through the head at point-blank range, after a roadside confrontation; the only question was whether this was an accident or a case of reasonable or unreasonable self-defense. The only uninvolved eyewitness testimony described a purposeful, execution style shooting. Whether thefatal encounter stemmed from a trick gone awry or was initiated by Nawabi talking shit to defendant is only tangentially relevant.

Finally, the trial court twice instructed the jury not to assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it helps you to understand the answer. The jury was also properly instructed to decide all factual questions from the evidence and not from any other source, and that the attorneys statements are not evidence. Defense counsel hammered on those instructions in closing argument and we find no reason to believe the jury would have disregarded them.^[5] (See People v. Hinton (2006) 37 Cal.4th 839, 864.) In another case where the evidence was less overwhelming and the misconduct more relevant to material issues, it might well require reversal. Having carefully reviewed the record, however, we harbor no reasonable doubt that the jury would have found defendant guilty of a lesser offense had the prosecutor refrained from the challenged questioning and argument.

II. Jury Misconduct

The court denied defendants motion for a new trial and request for evidentiary hearing brought on the basis, inter alia, of alleged juror misconduct. Defendant contends the court erred by refusing to hold an evidentiary hearing to determine whether the jury engaged in misconduct during deliberations. Defendants motion was supported with a declaration from defense investigator Patricia de Larios Peyton in which she detailed her postverdict interviews with four jurors. According to the investigators declaration, the jurors discussed defendants probable pimping activities and the jurors expectation that Clark and Davis would have testified about those activities. Three jurors told Peyton that the jury consulted a dictionary for the definition of a certain word or words. None of the jurors specified the word or words that were defined, although one told Peyton that although she did not recall with certainty, the words likely were related to premeditation and intent, since there was intense discussion, and confusion, of those concepts.

The court denied the request for an evidentiary hearing. It noted that there was no information as to what words the jurors had allegedly looked up in the dictionary and that the speculation as to the pimping activity could not have affected the actual deliberation. Even assuming that the statements in Peytons declaration were true, the court concluded that it did not rise to the level of requiring an evidentiary hearing.

We review the denial of a new trial motion without an evidentiary hearing for abuse of discretion. (Bardessono v. Michels (1970) 3 Cal.3d 780, 795; People v. Duran (1996) 50 Cal.App.4th 103, 113.) When a trial court is aware of possible juror misconduct, the court must make whatever inquiry is reasonably necessary  to resolve the matter. [Citation.] It must do so, however, only when the defense comes forward with evidence that demonstrates a strong possibility of prejudicial misconduct. [Citation.] [] Normally, hearsay is not sufficient to trigger the courts duty to make further inquiries into a claim of juror misconduct. A similar claim was made in People v. Cox (1991) 53 Cal.3d 618, where the appellant had offered to submit both the unsworn statement of a juror and a defense investigators affidavit recounting the jurors statement to the investigator regarding alleged juror misconduct. We found no abuse of discretion in the trial courts denial of the new trial motion without a hearing, noting that the court was justified in according little, if any, credence to the assertions the juror would not verify. (People v. Hayes (1999) 21 Cal.4th 1211, 1255-1256; People v. Hedgecock (1990) 51 Cal.3d 395, 415.)

Here, the only evidence offered to support defendants claim of juror misconduct was Peytons hearsay declaration. None of the jurors provided statements. Moreover, any potential for prejudice arising from the possibility that the jurors speculated about the Davis and Clark statements is minimal because the issue of pimping and prostitution was already before the jury on properly admitted evidence and, as discussed above, it was only tangentially related to defendants guilt. As to the second proposed ground for misconduct, the investigators hearsay declaration failed to identify what words the jurors allegedly looked up in the dictionary; hence, even assuming there was admissible evidence that the jurors had resorted to dictionary definitions, there is no way to determine whether those definitions were of legally critical terms or, if so, whether they were defined in a way that conflicted with the courts instructions. Because the defenses hearsay evidence failed to demonstrate a strong possibility of prejudicial misconduct, the court did not abuse its discretion when it denied the motion for a new trial without conducting an evidentiary hearing.

DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Pollak, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

^[1] We will refer to Dionte McKenzie by his first name to avoid any confusion.

^[2] None of the witnesses said what they did in the time between the groups arrival in Oakland somewhere between 10 p.m. and midnight and the 1:20 a.m. shooting.

^[3] On the night of the shooting Dionte told police they left 19th Avenue and International Boulevard to go after Nawabi. At trial he denied this and suggested the police did not let him say what had really happened.

^[4] The Explorer was in the left lane and Nawabis car was in the right.

^[5] Defendant also argues the prosecutor engaged in misconduct requiring reversal by asking questions implying defendant threatened Davis and was responsible for her refusal to testify and Clarks avoidance of process. This argument was waived by defendants failure to object to those questions at trial (People v. Earp (1999) 20 Cal.4th 826, 858-859)and,in any event, the alleged misconduct was not     so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.     (People v. Ochoa (1998) 19 Cal.4th 353, 427.) With respect to the prosecutors contention that defendant waived any claim of misconduct with respect to questions concerning the Davis and Clark statements, we are satisfied that defendant preserved these issues through multiple objections and was not required to object to each and every related question. (See People v. Hill (1998) 17 Cal.4th 800, 821.)