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Motion for New Trial

Defendant contends the trial court erred by denying his motion for new trial. He sought a new trial based in part on newly discovered evidence, and on jury tampering resulting from public contacts with jurors. We conclude the trial court did not err. The purported newly discovered evidence could have been discovered with reasonable diligence before trial, and its admission would not likely have resulted in a different verdict. There also was no substantial likelihood the public contacts with jurors actually biased the jury against defendant.

A. Newly discovered evidence

1. Background

The evidence on which defendant based his new trial motion consisted of two items. The first was the testimony of Dr. Boris Zhalkovsky, defendant’s psychiatrist. Dr. Zhalkovsky treated defendant from 2004 until April 2006, less than two weeks before defendant committed the crime, for anxiety and panic attacks. Defendant was convicted in November 2011. In an opinion rendered in June 2012, Dr. Zhalkovsky stated defendant likely had a panic attack at the time of the shooting arising from his perceived inability to protect his father. In Dr. Zhalkovsky’s opinion, defendant’s behavior at the time of the crime and his immediately leaving the scene demonstrated the poor judgment that frequently accompanies patients with anxiety and panic attacks.

The second item of alleged new evidence consisted of a revised translation of the recorded telephone conversation between defendant and Vasily Dovgan. Defendant contended the translation stipulated to by the parties was incorrect in parts. Most particularly, the original translation recorded defendant telling Vasily that when he saw the crashed Mazda, he said, “That’s it, dad’s gone.” The revised translation reads, “That’s it. Dad is dead.”

Defendant argued these items of evidence could have led the jury to a different verdict. Both explained why defendant fired the gun and why he left the scene immediately. On cross-examination, the prosecution asked defendant why, if he was protecting his father, did he leave the scene immediately and not return to check on his father. He did so, defendant argued on the new trial motion, because he had a panic attack and could not exercise sound judgment. Also on cross-examination, the prosecutor questioned defendant about the reasonableness of his use of force if he knew his father had left the scene and was “gone.” Defendant argued on the motion that the revised translation contradicted the prosecution’s theory.

The trial court denied the motion for new trial. It held that Dr. Zhalkovsky’s opinion did not qualify as newly discovered evidence as it could have been discovered earlier with reasonable diligence. Defendant knew he had panic attacks and had received treatment for them since 2004. In addition, he testified at trial and could have then explained any symptoms he may have experienced at the time of the shooting. The revised transcript also did not qualify as newly discovered evidence, as defendant was asked at trial, and gave, his own explanation of what he said in the recorded conversation. He also had the original translation for two years prior to trial when he could have made a revision. In addition, the court ruled Dr. Zhalkovsky’s opinion and the revised transcript, had they been admitted, would not have changed the outcome of the case.

Relying on the arguments he raised before the trial court, defendant contends the court erred in denying his motion for new trial.

2. Analysis

“ ‘ “The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.” ’ [Citations.] ‘ “[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background.” ’ [Citation.]

“In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ‘ “1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.” ’ [Citations.]” (People v. Delgado (1993) 5 Cal.4th 312, 328.)

The trial court here did not abuse its discretion in denying the motion for new trial sought on the basis of newly discovered evidence. Defendant could have discovered the evidence with any diligence prior to trial. Dr. Zhalkovsky’s opinion did not qualify as newly discovered evidence, as defendant knew from two years prior to the murder that he suffered anxiety and panic attacks and was being treated for the condition by the doctor. If that was relevant to his defense, he could have informed his trial counsel or testified about it himself when he took the stand. He did neither. The revised transcript also did not qualify as newly discovered evidence, as defendant had the original transcript for two years prior to trial when he could have informed his counsel of a mistranslation. He also explained on the stand what he remembered he said in the conversation. In any event, the purported mistranslation was trifling. In the context of this case, defendant’s statement of “[t]hat’s it, dad’s gone,” is no different than, “[t]hat’s it. Dad is dead.”

Moreover, admitting the purported new evidence on retrial was not likely to result in a different result. Defendant admitted on the stand and in the conversation with Vasily that he killed the victim. He admitted the person he thought he shot was Yakimov. Although he now says he thought his father was dead or “gone,” he claimed at trial that he was protecting his father. Yet, he immediately left the scene without checking on his father, he did not call the police, and he failed to explain these actions. This was sufficient evidence to support his second degree murder conviction with or without the new evidence.

B. Jury tampering

1. Background

Defendant also sought a new trial based on jury tampering. During jury deliberations, the jury informed the court that some “family members of the case” had had contact with some of the jurors. The court then examined the affected jurors.

Juror No. 11, the jury foreperson, stated someone in the audience had asked him how much jurors receive in fees for jury duty. Juror No. 11 stated he had waived the fees. After the jury had finished deliberations for the day, the same person contacted three of the jurors, including Juror No. 11, as they left the courthouse. He asked if they were through for the day. None of the jurors responded. Minutes later, as the trio walked to their parked cars, Juror No. 11 noticed four people who had been in the courtroom, including the one who had questioned the group moments earlier, standing around a vehicle and watching the jurors get into their cars. The four people did not say anything to the jurors.

As Juror No. 11 drove away, he noticed one of the four people, a female, was following him in her car. They both continued onto the freeway. Juror No. 11 was not certain she was following him, but he performed a couple of maneuvers in traffic and outmaneuvered the vehicle. He did not feel afraid from these contacts, and none of the other jurors expressed fear when they heard about them.

Juror No. 10 had seen the same man Juror No. 11 described asking the jurors as they left the courthouse if they were done for the day. The juror also saw him walk through the juror parking lot. Juror No. 10 had seen a group of people outside the courthouse as the juror left for the parking lot but was not sure they were watching the juror. The juror thought some of the female jurors were concerned and uncomfortable about these contacts, but they were not afraid.

Juror No. 6 reported seeing some of the people in the courtroom audience at a restaurant during lunch. One of them was the same man described by Juror Nos. 11 and 10. Juror No. 6 overheard a female in the group say “it’s murder,” and “left his father.” No one in the group addressed or contacted the juror.

Juror No. 5 was with Juror No. 11 when, leaving the courthouse, a man asked them if they were done for the day. The juror replied they were. Juror No. 5 also saw the group of people from the courtroom audience watch as the jurors went to their parked cars. The man who had inquired of them earlier was one of those who watched.

Juror No. 2 had also seen the group of people watching the jurors as they went to the jury parking lot. Not wanting them to see her get into her car, Juror No. 2 held up and pretended to use her phone. Juror No. 2 then saw a female and a male from the group walk through the juror parking lot. The juror saw the male get into a car parked on the street that borders the lot. Seeing this and hearing the other jurors talk about their experiences made Juror No. 2 wonder if she should be worried.

Juror No. 12 stated he had sat down in the hallway next to a female. The juror did not recognize her. The juror said good morning, the female said good morning, and she commented on the weather. They exchanged a few words, and then the juror recognized the female as someone he had seen in the courtroom. The juror got up and moved.

Juror Nos. 2, 5, 6, 10, 11, and 12 all stated these contacts would not affect their ability to be fair and impartial to both the prosecution and the defense, and they could set the contacts aside. The court inquired of the entire panel, and all of the jurors indicated they could be fair and impartial for both sides.

Defense counsel moved for a mistrial. The court denied the motion, concluding the contacts were not inappropriate and all of the jurors stated they could be fair and impartial. The court believed some in the courtroom audience were attempting to influence the jurors, but there was no evidence what had occurred prejudiced defendant, and there was no evidence the jurors had done anything improper.

When defendant filed his motion for new trial, he asserted jury tampering based on these facts as a ground for granting the motion. The trial court denied the motion brought on this basis, noting each juror, without equivocation, had stated he or she could be fair and impartial to both sides.

Defendant contends the court erred, as there was evidence of jury intimidation.

2. Analysis

“An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is ‘ “capable and willing to decide the case solely on the evidence before it” ’ [Citations.]” (In re Hamilton (1999) 20 Cal.4th 273, 293-294.)

“A juror’s . . . involuntary exposure to certain events or materials other than what is presented at trial generally raises a rebuttable presumption that the defendant was prejudiced and may establish juror bias. [Citation.] As relevant here, . . . [a] nonjuror’s unauthorized communication with a juror during trial that concerns the matter pending before the jury likewise raises a presumption of prejudice. [Citations.]” (People v. Merriman (2014) 60 Cal.4th 1, 95.) Other events outside the courtroom that may require examination for probable prejudice may “include attempts by nonjurors to tamper with the jury, as by bribery or intimidation.” (In re Hamilton, supra, 20 Cal.4th at p. 295.)

“[T]he presumption of prejudice is rebutted, and the verdict will not be disturbed, if a reviewing court concludes after considering the entire record, including the nature of the misconduct and its surrounding circumstances, that there is no substantial likelihood that the juror in question was actually biased against the defendant. [Citations.] Our inquiry in this regard is a ‘mixed question of law and fact’ subject to independent appellate review. [Citation.] But ‘ “[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.” [Citations.]’ [Citation.]” (People v. Merriman, supra, 60 Cal.4th at pp. 95-96.)

After reviewing the record and the nature of the misconduct, we conclude there is no substantial likelihood the jury was actually biased against defendant due to the public contacts. Nothing in the record indicates the jurors understood which party the people who spoke with them and watched them were supporting. The incidents of direct comments to the jurors did not concern any substantive issue or evidence from the trial. Juror No. 6 overheard comments about the case, but there was no indication the comments were directed towards the juror or that the juror knew which party the people supported. Some of the jurors were concerned about being watched by people, but none of them expressed feeling fear or intimidation.

In addition, under the trial court’s questioning, each juror stated he or she had not been affected by the contacts and could be fair and impartial to both sides. The court was entitled to rely upon those statements “to determine whether a juror can maintain his or her impartiality after an incident raising a suspicion of prejudice.” (People v. Harris (2008) 43 Cal.4th 1269, 1304.) We defer to the trial court’s credibility determinations when supported by substantial evidence, and the jurors’ statements are substantial. (Id. at p. 1305.)

Under the totality of the circumstances, there is no substantial likelihood the jurors were actually biased against defendant due to the public contacts. The trial court did not err in denying the motion for new trial on this basis.

IV




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