Juror Misconduct Not Always Fatal

In the sometimes rough and tumble of jury deliberations, a juror’s improper suggestion that a defendant’s failure to testify suggests guilt does not merit a new trial if the foreperson quickly corrects the improper discussion, the California Supreme Court has held.

The state’s high court ordered the trial court to investigate alleged juror misconduct in the kidnap and murder convictions of Floyd Lavender and his cousin Michael Gaines Monday.  The unanimous court held that a juror’s comments inferring guilt based on failure to testify is not “categorically prejudicial without considering whether the jury was promptly reminded of court’s instructions to disregard defendants’ decisions not to testify.”

The high court sent the violent murder case back to the trial judge to investigate the scope of the alleged misconduct and the timing of the jury foreperson’s reminder about the instructions.

Lavender and Gaines were convicted of the murder and torture of Courtney Bowser, Kristen Martin and Michael Hughes.  Both men were sentenced to 25 years to life in prison for murder, plus another five years for kidnapped and three concurrent life terms for torture.

In 2003 near PalmDesert, Lavender and Gaines tortured and terrorized the group of teenage methamphetamine users who had been recently released from juvenile hall.  In an effort to discover who had stolen two blank traveler’s checks that Gaines had given to Angela Vereen, the pair threatened to shoot the group over a period of hours.

Gaines threatened to pound nails into Hughes’s head with a hammer, until Bowser said she took the checks and traded them for drugs.

After beating and torturing Bowser, defendants handcuffed her and took her away.  Her body was discovered in an ImperialCounty irrigation ditch five days later, but she was not identified until 2006.

The defense maintained that Bowser died from a drug overdose during a binge with the others and they panicked and threw her body into a ditch, then concocted the story to blame the defendants.

No forensic evidence linked the two men to Bowser, but a pathologist testified she was alive when thrown in the water and died by drowning following a struggle.

Jurors convicted the pair, but after the trial one juror said that several members had discussed the defendants’ failure to testify, and “we discussed this fact during the deliberations and openly talked abut why they did not testify and that this fact made them appear guilty to us.”

The prosecution submitted declaration from the foreperson and two other jurors that only one juror mentioned it and was immediately admonished that they could not consider that issue.

Case:  People v. Lavender, No. S209975

 

 

 

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