Brief Bank # B-903 (Re: NCJIC  16.6.7 [Juror Claim Of Personal Expertise During Deliberations].)

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE FIFTH APPELLATE DISTRICT

JOHN DOE,                                                                       Related to the Appeal in No. FO00000

                                Petitioner,
vs.                                                                                       Superior Court No. 00000 A & B
                                                                                            Kern County
C. W. TERHUNE, In His Capacity As Director of
The California State Department of Corrections,

                                Respondent.
_____________________________________________/

PETITION FOR WRIT OF HABEAS CORPUS

THOMAS LUNDY
State Bar # 57656
Attorney at Law
2500 Vallejo Street, Suite 200
Santa Rosa, CA 95405
(707) 524-8112
Attorney for Petitioner Doe
By Appointment of Court of Appeal
Under the Central California Appellate Project

TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE JUSTICES OF THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FIFTH APPELLATE DISTRICT:

    Petitioner, JOHN DOE, by his attorney THOMAS LUNDY, respectfully petitions this court for a writ of habeas corpus and by this verified petition sets forth the following facts and causes for the issuance of the said writ:

VIII

    Petitioner’s conviction and sentence were obtained in violation of his Fifth, Sixth and Fourteenth Amendment rights under the Federal Constitution to a fair jury trial, due process, and impartial jury, confrontation, personal presence, effective representation of counsel and a reliable guilt determination; and his analogous rights under Article I of the California Constitution. These violations occurred when the jurors brought extraneous evidence into the deliberations in the form of their personal experience and opinion regarding an infant’s feeding capacity (Exhibit B) which undermined the defense expert as to the crucial issue of how much the baby consumed when Mr. G fed her.

    The following facts, among others to be presented at an evidentiary hearing after full investigation and discovery, support this claim:

    1. The primary defense in this case was that Mr. G killed the baby. (Doe AOB 17-24.)

    2. Because the baby’s stomach was full at the time of death (RT 937; 935), the defense depended on the jury finding that Mr. G fed the baby enough to fill her stomach.

    3. Mr. G testified he only fed the baby about an ounce of milk/water mixture which would not have been enough to fill her stomach. (RT 520; 619-22.)

    4. The defense expert testified that a normal feeding would have been about eight ounces, not an ounce. (RT 1317-18.)

    5. Extraneous evidence was brought into the jury deliberations regarding this issue when one of the male jurors who had a baby about the same age as Baby K, gave his opinion as to how much a baby that age could consume at a feeding. (Exhibit B.)

    6. This opinion was also corroborated by other jurors. (Exhibit B.)

    7. The jury discussed this information in its deliberations as to the stomach contents when they were deciding when the fatal taping occurred and who could have done it. (Exhibit B.)

    8. After receiving the extraneous opinions the jury returned the guilty verdict as to the defendants. (Exhibit B.)

ARGUMENT I

    "It is misconduct for a juror to consider material extraneous to the record." (People v. Mincey (1992) 2 Cal.4th 408, 467.) "Such conduct creates a presumption of prejudice that may be rebutted by a showing that no prejudice actually occurred." (Ibid.)

    In the present case, the jurors were exposed to several items of prejudicial extraneous evidence.

    The jury received extraneous evidence in the form of an opinion of an individual juror based on the juror’s personal experiences regarding the crucial issue of an infant’s feeding capacity. (Exhibit B.) The introduction of this unauthorized "expert’ opinion evidence into the deliberations was misconduct which created a presumption of prejudice. (People v. Marshall (1990) 50 Cal.3d 907.)

            1.     Time of Death Evidence.

    On May 28, 1995, at approximately 8:30 p.m. Jane Doe fed Baby K a bottle. (RT 840-41.) At approximately 10:30 p.m., Mr. G was asked to watch the defendant’s children for them. Mr.G had been drinking heavily. (RT 512-13.) Mr. G testified that it was about 10 to 15 minutes later that he heard the radio playing in the bedroom where Baby K was sleeping. (RT 514.) He went in to turn off the radio. (RT 515.) He noticed the baby was completely covered by a sleeping bag and Mr. G uncovered her. (RT 516.) It was at that time that Mr. Gallegedly discovered the tape covering the baby’s mouth. (RT 517.) Mr. G testified that he removed the tape, and after opening a window in the room, went to get the baby a bottle. (RT 517-9.) Mr. G testified that he used an 8-ounce bottle and filled it with approximately four ounces of milk and two ounces of water. (RT 519.) He then went back and attempted to feed the baby. (RT 519.) However, according to Mr. G the baby drank for no more than two minutes and the amount she consumed was not noticeable. (RT 520; 619-22.) Dr. George Bolduc, the forensic pathologist who performed the autopsy on Baby K testified that there was approximately 350 cc’s (or approximately 12 ounces) of contents in the infant’s stomach which he described as "prominent clumps of congealed white mushy material" that resembled "milk or formula showing early digestive changes." (RT 904; 937; 975 [Footnote 1].) Bolduc testified that this was a "relatively large amount" food in the stomach and that the baby was "full." (RT 937; 975.) Bolduc did not draw any conclusions from the stomach contents but Dr. Ronald Kornblum, a forensic pathologist, testified that, due to the large amount of milk in the child’s stomach, she had to have died within one hour of her last feeding. (RT 1261-64; 1289.) It was his opinion that the child died between 11:00 p.m. and 1:00 a.m. (RT 1294.) Kornblum testified that in his opinion eight ounces would be a normal feeding for a eight-month-old child. (RT 1317-18.) As to the curdling condition of the milk in Baby K’s stomach, Kornblum testified it would probably take less than an hour for the contents to get to the state they were in. (RT 1318.)

    On cross-examination, Kornblum was asked to assume that Baby K was fed 6 to 8 ounces at 8:00 p.m., [Footnote 2] then fed less than an ounce again between 11:00 and 11:30 p.m. Kornblum testified that it would take roughly four hours for the stomach to empty and that he would expect that there would have been less than half the original volume in the stomach after three hours. (RT 1319.) Based on this time frame, Kornblum could not explain the large volume in the stomach other than to say there must have been another feeding or that at the 11:30 feeding she was given more than an ounce. (RT 1320; 1321-22.)

    The defense contended that Mr. G had killed the baby. Crucial to this defense was the defense position that when Mr. G fed the baby that night she consumed substantially more than one ounce. This position was supported by the defense expert, Dr. Kornblum, who testified that 8 ounces would be a normal feeding for an 8-month-old. (RT 1317-18.) However, this crucial defense evidence was undermined by the extraneous evidence.

    During deliberations, one of the jurors who had a baby that was about the same age as Baby K gave his opinion, based on his personal experiences, as to the amount the baby may have consumed. (Exhibit B.) Other women jurors also gave their opinion and agreed with the male juror. This extraneous evidence was introduced while the jurors were discussing Baby K’s stomach contents at the time of death, when the fatal taping occurred and who, Jane Doe or Mr. G, could have done it. (See Exhibit B.)

    The jurors’ own opinion based on their individual experiences, besides being improper extraneous evidence, was unreliable. To be reliable such an opinion would have to take into account many variables. These include, but are not limited to, the child’s activity level, heredity, caloric needs, and prolonged or recurring illnesses, such as diarrhea or frequent colds which may cause an appetite to lag. (Dr. William Sears and Martha Sears, R.N., The Baby Book (Little, Brown and Company, 1993) [Footnote 3] Besides medical reasons, emotional disturbances [Footnote 4] upsetting the parent-infant relationship may also slow growth and diminish appetite. (Ibid.) And it is normal for a child’s food intake to vary from day to day. For example, the average 20-pound one-year-old needs around 1,000 calories per day. Some days the child may eat 700 calories, on other days 1,300. There are many variables that enter into a child’s ideal calorie needs, and professional help may be necessary to determine what this amount is. (Ibid.)

    Additionally, even though Dr. Bolduc indicated that Baby K was "well-nourished" and apparently "normal 8-month old baby" he testified that she also had an abnormal liver which strongly suggested to him that she was diabetic. (RT 916-17.) [Footnote 5] One of the classic symptoms of diabetes (hyperglycemia) is frequent hunger, thirst and urination. [Footnote 6]  There was no testimony presented as to how Baby K’s possible diabetic condition could have affected the amount of formula she was capable of consuming. Hence, the jurors’ anecdotal experiences with their own children did not provide a reliable opinion based on the facts relevant to this case.

            4.     The Extraneous Opinion Evidence Raises A Presumption of Prejudice Which
                    Cannot Be Rebutted.

    As with jury experiments, when "expert" opinions are submitted to the jury during deliberations "‘the jury has been itself taking evidence without the knowledge of either party, evidence which is not possible for the party injured to meet, answer, or explain.’ [Citation.] ... Jurors cannot be permitted to investigate the case outside the courtroom. They must describe the guilt or the innocence of the defendant upon the evidence introduced at the trial. It is impossible for this court to say that this outside investigation did not affect the result as to the character of the verdict rendered. For, when misconduct of jurors is shown, it is presumed to be injurious to the defendant, unless the contrary appears.’ [Citation.]" (Bell v. California (1998) 63 Cal.App.4th 919, 931.)

    In the present case, the jurors brought extraneous and unreliable "expert" evidence into the jury deliberations. Because this extraneous evidence related to a crucial factual issue, and because petitioner was never able to confront or respond to this evidence petitioner’s state and federal (6th and 14th Amendment) constitutional rights to due process, confrontation, assistance of counsel and fair trial by jury were abridged. Because the misconduct undermined a central defense theory the presumption of prejudice cannot be rebutted and the verdict should be vacated.

    For the foregoing reasons the petition for writ of habeas corpus should be granted.

DATED: July 16th, 1998

                                                                                            Respectfully submitted,

                                                                                            ____________________________
                                                                                            THOMAS LUNDY
                                                                                            Attorney for Defendant/Appellant

FOOTNOTES:

Footnote 1: Bolduc testified that the material could also have been a milk and water mixture. (RT 937-38.)

Footnote 2: The second time Kornblum was asked this question the first feeding was placed at 8:30 p.m. (RT 1319.)

Footnote 3: William Sears, M.D. has been a pediatrician for 20 years. He received his pediatric training at Harvard Medical School’s Children’s Hospital in Boston and The Hospital for Sick Children in Toronto. Martha Sears is a certified lactation consultant, La Leche League leader and director of the Breast feeding Center in San Clemente, California. The Sears have been counseling parents for more than 20 years and have collaborated on more than 12 books on parenting, including The Baby Book and Parenting the Fussy Baby and the High-Need Child.

Footnote 4:  For example, untimely weaning, premature mother-infant separation, marital disturbances, and/or family crises may cause a slow in growth and diminish an appetite in an infant. (Ibid.)

Footnote 5:  Bolduc testified that there was an elevated level of glucose in Baby K’s ocular fluid, which combined with a fatty change in the liver, supported the child being diabetic. (RT 916-17.)

Footnote 6:  "Symptoms of Hyperglycemia" Endocrine Web’s Diabetes Center, 1998 (endocrineweb.com.). "The diabetic feels hungry all the time, eats enormous quantities, but cannot gain weight ... urinates excessively, loses water from the body, and is constantly thirsty as a result." (Aldo A. Rossini, M.D., "Diabetes Mellitus," New Family Medical Guide (Meridith Corp. 1982) p. 392.)

THE PEOPLE OF THE STATE OF CALIFORNIA,

                                Plaintiff and Respondent,                                       F000000

vs.

JANE DOE and JOHN DOE,

                                Defendants and Appellants.
______________________________________________/

In re

JANE DOE and JOHN DOE                                                               F000000
                                                                                                            F000000
On Habeas Corpus.                                                                              Kern County Superior
                                                                                                             Court No. SC00000 A & B
______________________________________________/

THOMAS LUNDY
State Bar # 57656
Attorney at Law
2500 Vallejo Street, Suite 200
Santa Rosa, CA 95405
(707) 524-8112
Attorney for Petitioner Doe
By Appointment of Court of Appeal
Under the Central California Appellate Project

TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE JUSTICES OF THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FIFTH APPELLATE DISTRICT:

    Petitioner, JOHN DOE, by his attorney THOMAS LUNDY, respectfully submits his reply to the informal response to petition for writ of habeas corpus:

    Respondent disputes the truth of this allegation by arguing that "a juror’s opinion concerning a fact that is relevant to the deliberation is not ‘evidence’ of that fact...." (IR 16.) This argument is specious. Certainly if the prosecution had introduced expert opinion evidence to contradict the defense expert respondent would not take the position that such an opinion was not evidence. Here the juror in effect became an expert witness for the prosecution based on his own personal experiences.

    Nor should the introduction of the extraneous matter be tolerated under the language from People v. Fauber (1992) 2 Cal.4th 792, 838) upon which respondent relies. First, the feeding capacity of an infant is a matter which would not necessarily be common knowledge to all jurors in the same way that the impact of drugs on perception is. (See Doe Petition, pp. 30-31 [discussing the medical and emotional variables which may affect feeding capacities of infants].) Second, the focus of the court in Fauber was upon the fact that the extraneous evidence did not "relate to any of the issues in this case, and no connection is apparent." (Id., at 838.) Hence, the claim was ultimately rejected because: "Defendant does not persuade us that any of the jurors’ statements could adversely have affected the verdict." (Ibid.) In the present case the extraneous evidence directly impacted a crucial issue in the trial and, hence, "could have adversely the verdict."

    For the above stated reasons, as well as those set forth in the petition, petitioner has made a prima facie showing for the issuance of an Order to Show Cause.

Dated: June 8, 1999                                                             Respectfully submitted,

                                                                                            ___________________________
                                                                                            THOMAS LUNDY
                                                                                            Attorney for Petitioner