"Runaway Jury"... the movie.

Give it up already...

Gun case declared a mistrial due to hung jury

Jurors split on Beretta's culpability

By Glenn Chapman, STAFF WRITER

OAKLAND -- A mistrial was declared Tuesday after jurors deadlocked over whether the design of a Beretta pistol caused the accidental shooting death of a Berkeley teenager in 1994.

It was the second time Alameda County jurors pondered the circumstances that ended with Kenzo Dix shot dead by a 14-year-old friend showing off a gun he thought was unloaded.

The first civil trial ended with jurors exonerating the Beretta gun company. Their verdict was overturned by an appellate court that ruled a juror convinced parents are responsible for weapons in their homes had bullied other jurors and affected the outcome....

More at...
http://www.timesstar.com/Stories/0,1413,125~1486~1850336,00.html


"bullied"? What does that mean? Unlike the movie, it sounds like at least one juror with some common sense prevailed and was able to show a few dullards and hand-wringers the light of day.

demsrule4life (1000+ posts) Wed Dec-31-03 08:50 PM
Response to Original message

27. Gun case declared a mistrial due to hung jury


OAKLAND -- A mistrial was declared Tuesday after jurors deadlocked over whether the design of a Beretta pistol caused the accidental shooting death of a Berkeley teenager in 1994

http://www.timesstar.com/Stories/0,1413,125~1486~1850336,00.html

Some people in Ca with common sense, who would of thunk it.

These people sound like the proposal that I heard that the .gov hire professional jurors rather than the citizenry.

Wait, the 6th Amendment applies to the juries of the State?

it's not unimaginable for a juror with a strong personality and a strong stance on the case to bully the others until they come around to his/her way of thinking

Last time was for a vehicular homicide case and intimidation of a witness. There was about 4 hours of deliberation and quite a bit of arguing before we found the defendant guilty of the lessor charge "leaving the scene of an accident resulting in death".

I have what I consider a "strong personality"; like wise I'm not easily intimidated... most people would consider me stubborn.

Unless the juror in question was making threats against the hold-outs, then shame on those who felt that they were bullied into voting the way they did.

2002 Cal. App. Unpub. LEXIS 4201, *

GRIFFIN DIX et al., Plaintiffs and Respondents, v. BERETTA U.S.A. CORP., Defendant and Appellant.

A093082

COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION ONE

2002 Cal. App. Unpub. LEXIS 4201

February 6, 2002, Filed

NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR PURPOSES OF RULE 977.


OPINION: Beretta U.S.A. Corporation appeals from an order granting a new trial to Griffin and Lynn Dix, on the grounds of juror misconduct. We will affirm the order after modifying it to limit retrial in the matter to respondents' claim that a pistol manufactured by Beretta was defectively designed.

Background

On May 29, 1994, Michael Soe accidentally shot and killed his friend, Kenzo Dix, with a Beretta 92 Compact L semiautomatic 9 mm pistol that Soe's father, Clarence Soe, had kept in a bag next to his bed. Plaintiffs, the parents of Kenzo Dix, brought suit against Beretta on the theory that Kenzo's death was the result of defects in the design of the pistol, and/or of a failure by Beretta to provide adequate <*2> warnings about the dangers of keeping a loaded pistol where it was accessible to children. The jury returned a verdict in favor of Beretta. It rejected, nine to three, the plaintiffs' claims (1) that the pistol was defective because it failed to perform safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, and (2) that it was defective as a result of a risk in its design that outweighed the benefits of that design. The jury also rejected, seven to five, the plaintiff's claim that the pistol was defective because of a failure to provide an adequate warning, and also found, ten to two, that any defect resulting from a failure to warn was not a substantial factor in Kenzo Dix's death.

The plaintiffs moved for a new trial on the grounds of juror misconduct, citing evidence that at least one juror, Reverend Adolph Bell, was biased and had prejudged the case. Although the trial court was troubled by the evidence, it denied the motion for new trial, finding any misconduct to have been harmless in light of the weakness of the plaintiffs' case and the unlikelihood that they would have prevailed absent the asserted misconduct or that <*3> they would prevail if they were given a new trial. The court, accordingly, employed a normal harmless error analysis, concluding that the juror misconduct, if any, was harmless.

We reversed, finding that the question for the trial court in determining prejudice resulting from juror misconduct, was not whether it was reasonably probable that the plaintiffs ultimately could prevail on their claims, but whether the misconduct affected the integrity of the jury process. We held: "And where, as here, the verdict was nine to three, and a different vote by any one of the majority jurors would have resulted in a different verdict, the injured litigant is entitled to a new trial upon a showing that there is a substantial likelihood that a juror's vote was the result of juror misconduct."

The matter was remanded to the trial court, which then granted the plaintiffs' motion for a new trial.

This appeal followed.

Discussion

I.

Failure to Provide Written Specifications

The trial court failed to specify, in writing, its reasons for granting the new trial, as required by Code of Civil Procedure section 657 , and Beretta claims error. It is true that <*4> the trial court failed to comply with the mandate of Code of Civil Procedure section 657, but on this record, specification of reasons would have been a mere formality. n1

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n1 Code of Civil Procedure section 657 provides that, with an exception not present here, the reviewing court shall affirm an "order granting a new trial . . . if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons."


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Specification of reasons is required to ensure that the order is the product of a mature and careful reflection on the part of the trial judge, and also because it aids the parties and the appellate court in reviewing the trial court's ruling. ( Mercer v. Perez (1968) 68 Cal.2d 104, 113-115, 65 Cal. Rptr. 315, 436 P.2d 315.) Here, where we remanded the matter to the trial court to determine whether juror misconduct occurred, where the plaintiffs filed a renewed motion <*5> for a new trial on the grounds of juror misconduct, and where the trial court at great length discussed our ruling before reluctantly granting the motion for new trial, it is abundantly clear that the motion was granted because the court concluded that Reverend Bell had prejudged the case and that his vote was the result of juror misconduct. The rationale behind the requirement of specification of reasons, therefore, was fully satisfied. Under these circumstances, Beretta has suffered no undue prejudice by the court's failure to specify its reasons for granting a new trial, and is entitled to no relief for that failure. (See Treber v. Superior Court (1968) 68 Cal.2d 128, 65 Cal. Rptr. 330, 436 P.2d 330, passim.)

II.

Sufficiency of the Evidence that Juror Bell had Prejudged the Case

Beretta next argues that the evidence fails to support the trial court's conclusion that Reverend Bell had prejudged the case.

In the previous appeal we found that a new trial would be justified upon a finding by the trial court that Reverend Bell had made the statements attributed to him by some of the other jurors. In so finding, we cited declarations of two jurors and <*6> one alternate juror "that Bell had been belligerent and domineering towards the other jurors. It was reported that Bell generally had disrupted jury deliberations, denigrating the opinions of anyone who disagreed with him and attempting to browbeat others into adopting his position. It was reported that Bell made comments such as 'that's ridiculous' during the testimony of appellants' witnesses. And, 'right from the start of the trial' Bell told other jurors 'It was Clarence Soe's responsibility to have stored the gun properly and to have trained his son properly. The manufacturer has no responsibility, period.' Even before appellants had finished putting on their case, Bell stated, 'I believe in parental responsibility, and the person at fault is Clarence Soe. . . . There's too much laxness in society. People are not taking responsibility for their actions, so it's Clarence Soe's fault.' "

In our previous opinion, we found that this evidence, if believed by the trial court, would support a finding that Reverend Bell had prejudged the case. We recognized, however, that there was conflicting evidence, but it was the duty of the trial court, which was present throughout the <*7> proceedings and therefore able to observe the conduct and demeanor of the jurors, to resolve these conflicts. We therefore remanded the matter so that the trial court could decide whether Reverend Bell in fact made the statements attributed to him, and whether, in light of those statements, and such other evidence as the court found useful, including the conduct and demeanor of the jurors during the proceedings, Reverend Bell indeed had prejudged the case. The trial court, although understandably frustrated by the fact that it was required to find facts and determine credibility without the benefit of examination and cross-examination of the witnesses, found that Reverend Bell had made the disputed statements and had prejudged the case.

Beretta now suggests that we should ignore the unique role of the trial court in proceedings such as this, disregard the fact that we remanded the matter to the trial court specifically so that it could make the necessary factual determinations, and find that the evidence supporting the trial court's ruling was not credible. We do not, however, ourselves resolve issues of credibility or fact; rather, we review the findings of the trial court, and <*8> in reviewing the trial court's ruling, we accept "the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. " ( People v. Nesler (1997) 16 Cal.4th 561, 582, 941 P.2d 87.) This is true even where, as here, the issue is tried on affidavits. ( Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 108, 95 Cal. Rptr. 516, 485 P.2d 1132.) We follow the rule that " 'the granting of a motion for a new trial rests so completely within the discretion of the trial judge that an appellate court will not interfere with his action unless a manifest and unmistakable abuse of discretion clearly appears. ' " ( Weathers v. Kaiser Foundation Hospitals, supra, 5 Cal.3d at p. 109.) The trial court was well aware of Beretta's credibility arguments, and expressly rejected them. No abuse of discretion has been shown.

Beretta contends the juror whose affidavit was most damning--Ms. Cleodel Russelle--lacked credibility, because not all of her statements were corroborated by other evidence, n2 and the trial court decided that not all of her <*9> conclusions were valid. n3 Beretta also argues that the trial court erred in finding that Ms. Russelle's report of Reverend Bell's conduct and statements in the jury room was corroborated by the affidavit of the alternate juror. The alternate juror had declared that although she could not remember exactly what Reverend Bell had said, she "knew from what he had said that he was not going to vote for the Dixes" and, "by the time we were about half-way through the trial, I became convinced that would definitely vote for Beretta. He openly expressed his opinion for Beretta and against the Dixes." Although these statements were not specific as to time, they did provide corroboration for Juror Russelle's statements, and were of evidentiary value. We do not agree that the alternate juror's statements were "nothing more than supposition on her part."

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n2 The juror made an uncorroborated statement that Reverend Bell made comments during the testimony of witnesses and criticized the testimony of the plaintiffs' experts. Beretta recognizes that the court did not rely on this statement in finding that Reverend Bell prejudged the case, but suggests that because the statements were uncorroborated they were "fantastic and simply not believable." That no one else reported Reverend Bell's behavior does not mean that Ms. Russelle lacked credibility. Others may not have heard Reverend Bell, may not have found his comments to be particularly disruptive, may not have been asked about his conduct during trial or simply may have chosen to remain silent about the matter. The record, for example, contains no affidavit from the juror who sat between the reporting juror and Reverend Bell. That this statement was uncorroborated, therefore, does not demonstrate that the juror lacked credibility. <*10>



n3 Ms. Russelle reported that another juror implied that she had a gun with her at all times, concealed on her body and she believed that the second juror had brought the gun into the jury room, possibly strapped to her leg. The trial court stated that it had rejected this portion of Ms. Russelle's statement for a lack of "emphasis," but "not because of any lying or dissimulation." We take this statement to mean that the court believed that Ms. Russelle had received the impression that the second juror brought a gun into the jury room, but decided that this impression was false.


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Beretta, citing Province v. Center for Women's Health & Family Birth (1993) 20 Cal.App.4th 1673, asserts that the alternate juror's statement must be disregarded because it "contains no specifics runs afoul of the requirement that the evidence of jury misconduct must be outwardly verifiable." The court in Province did no more than recognize that Evidence Code section 1150 "limits impeachment evidence to 'proof of overt conduct, conditions, events, <*11> and statements. . . . those open to sight, hearing, and the other senses and thus subject to corroboration.' " ( Id. at p. 1678.) Nothing in Province requires absolute specificity in such evidence. In any event, although the conclusions the juror drew from Reverend Bell's statements could not be used to support a finding that Reverend Bell had prejudged the case, it was "outwardly verifiable" that Reverend Bell had made statements that could be construed as demonstrating prejudgment. In short, the trial court was entitled to view the alternate juror's statements as tending to show that Reverend Bell made the statements attributed to him by Ms. Russelle.

The trial court concluded that Reverend Bell's own statements were not particularly persuasive or credible. Reverend Bell declared that Ms. Russelle's statements are "inaccurate," and declared that, prior to deliberations, he had not said "the manufacturer has no responsibility period." The evidence is essentially undisputed that Reverend Bell was highly opinionated during deliberations, and the court was entitled to infer that Reverend Bell was highly opinionated even before deliberations <*12> took place, and that his recall of his behavior throughout the proceedings was untrustworthy.

Beretta contends this case is controlled by Johns v. City of Los Angeles (1978) 78 Cal. App. 3d 983, 144 Cal. Rptr. 629. In that case, the appellate court determined that the evidence did not support the trial court's finding that a juror had stated, " ' "I wonder how long these lawyers shopped to get this black judge?" ' " ( Id. at p. 991.) Only one juror had reported that this statement had been made. Other jurors, including the juror that was supposed to have made the statement, denied that it had been made, although it was reported that the juror had wondered aloud how the case had been assigned to "this judge," or how it ended up in "this court." Aside from the statement itself, there was no evidence that the juror who was supposed to have made the statement, or indeed any other juror, harbored any racial bias. To the contrary, the record revealed that "during its deliberation the jury gave every indication of being a conscientious group striving earnestly to apply the law to the facts, uninfluenced by considerations of race." ( Id. at p. 992.) <*13> At one point during deliberations, the juror who was supposed to have made the statement voted for the plaintiffs, who were African American. On this evidence, the appellate court concluded that there was insufficient evidence to support a finding that the juror had made the statement attributed to him, and that even if the juror had made the statement, it did not support the conclusion that the juror was, "because of a general bias against the plaintiff irrevocably committed to vote against the plaintiff regardless of the facts that might emerge in the trial." ( Id. at p. 996.)

Although only one juror testified as to Reverend Bell's exact words, in contrast to the situation in Johns, the alternate juror corroborated the substance of these statements. Here, also in contrast to the situation in Johns, other jurors supplied evidence tending to support the conclusion that Reverend Bell felt very strongly about the case and did not consider the points of view of other jurors or any arguments against his position. Also, the evidence of the conduct of the juror at issue in Johns tended to show that he harbored no bias, whereas the evidence <*14> of Reverend Bell's conduct and statements during deliberations provided additional support for the conclusion that he was biased from the outset of the trial.

The trial court's findings are supported by substantial evidence.

III.

Prejudice Resulting From the Juror Misconduct

Beretta, arguing that the plaintiffs will not be able to obtain a favorable verdict upon retrial, contends that the court erred in granting a new trial. Beretta recognizes that our earlier opinion rejected the notion that questions of juror misconduct can be subjected to a harmless error analysis that focuses on the probable outcome of the new trial. Beretta contends that we were mistaken. It also contends it was unnecessary to determine whether juror misconduct occurred because it was entitled to judgment as a matter of law. It follows, in Beretta's opinion, that the court should have granted its motion for nonsuit, n4 and should have granted its motion for a new trial.

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n4 Beretta argues in its opening brief that it was entitled to judgment as a matter of law. In its reply brief it extends this argument, claiming that the trial court should have granted its motion for nonsuit, an argument that counsel made again during the oral proceedings. The plaintiffs contend that Beretta may not argue that the court erred in denying its motion for nonsuit because that argument was not expressed in its opening brief. As our conclusion that Beretta was not entitled to judgment as a matter of law disposes of Beretta's nonsuit argument, we do not decide whether Beretta's opening brief adequately raised the point.


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We will not depart from our earlier conclusion, which has become law of this case, absent a demonstration that there has been "a manifest misapplication of existing principles resulting in substantial injustice." ( People v. Shuey (1975) 13 Cal.3d 835, 846, 120 Cal. Rptr. 83, 533 P.2d 211, questioned on another point in People v. Bennett (1988) 17 Cal.4th 373, 389, fn. 5, 949 P.2d 947.) Beretta has not demonstrated our earlier conclusion was erroneous. Nor has a manifest injustice occurred where, as here, all that has happened is that a new trial has been ordered.

Beretta relies on a single quote from Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 185 Cal. Rptr. 654, 650 P.2d 1171, where the Supreme Court said "prejudice exists if it is reasonably probable that a result more favorable to the complaining party would have been achieved in the absence of the misconduct." ( Id. at p. 415.) What the court did in Hasson, however, was to determine whether the misconduct was such that Ford was given anything less than a full and fair consideration of its case by an impartial jury. "Only if we can infer <*16> from that had prejudged the outcome of the case and closed their minds to further consideration of the evidence can it be said that actual prejudice occurred." ( Id. at p. 415.) The court then found that "the showing of misconduct is rebutted by an examination of the record which reveals no substantial likelihood that Ford was given anything less than a full and fair consideration of its case by an impartial jury. The instances of misconduct demonstrated here do not rise to the level of evidence 'of such a character as is likely to have influenced the verdict improperly.' " ( Id. at pp. 417-418.)

Since Hasson, the Supreme Court has considered the question of juror misconduct in criminal cases, and has made it quite clear that " 'any deficiency that undermines the integrity of a trial--which requires a proceeding at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury--introduces the taint of fundamental unfairness and calls for reversal without consideration of actual prejudice. Such a deficiency is threatened <*17> by jury misconduct. When the misconduct in question supports a finding that there is a substantial likelihood that at least one juror was impermissibly influenced to the defendant's detriment, we are compelled to conclude that the integrity of the trial was undermined: under such circumstances, we cannot conclude that the jury was impartial. By contrast, when the misconduct does not support such a finding, we must hold it nonprejudicial.' " ( In re Malone (1996) 12 Cal.4th 935, 964, 911 P.2d 468, quoting from People v. Marshall (1990) 50 Cal.3d 907, 951, 269 Cal. Rptr. 269, 790 P.2d 676, italics added.) "Although stated in criminal cases, this rationale applies to civil cases as well, because civil litigants too are constitutionally entitled to a fair trial before an unbiased jury. Moreover, a substantial likelihood that one juror was adversely affected would also require reversal in a civil case, like the present one, in which the verdict was nine to three. " ( McDonald v. Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256, 266.) Although the court in Hasson employed language <*18> consistent with the proposition that issues of juror misconduct are subject to a traditional harmless error analysis, the procedure followed by the court in that case together with the statements in later cases, convinces us that Hasson does not support such a proposition.

Beretta next contends the trial court erred in granting a new trial because Beretta was entitled to judgment as a matter of law. This argument is based, in part, on the assertion that the trial court actually found Beretta was entitled to judgment as a matter of law, but nonetheless granted a new trial only because it felt compelled to do so by our earlier opinion. The trial court felt that the plaintiffs' case was weak and stated, at various times, that it was very unlikely that the plaintiffs would prevail, that they "could not prevail," or that had they prevailed the court "would have been hard-pressed not to consider seriously motions from the defense." The trial court, however, denied Beretta's motion for summary judgment and for nonsuit--rulings inconsistent with the conclusion that the plaintiffs could not prove or had not proved, their case. On this record, we find that the trial court's statements <*19> were intended to warn the plaintiffs that their case is extremely weak, and to warn their attorneys that this case is a poor one for establishing liability on the part of gun manufacturers. It was not, however, a veiled finding that the plaintiffs were entitled to judgment as a matter of law.

Beretta also argues that it was entitled to judgment as a matter of law because any failure by Beretta to place a locking device on its pistol could not have been a cause of the death of Kenzo Dix, asserting that the undisputed evidence is that Clarence Soe would not have used the device. Although we agree that the evidence that Clarence Soe would not have used the device is exceedingly strong, we do not find that it is so strong that a jury could not have reached the opposite conclusion. In addition, plaintiffs' claims of defective design extended beyond the failure to include a locking device. The jury might have returned a verdict for the plaintiffs upon a finding that Kenzo Dix's death was caused, in part, by some other design defect, such as the alleged failure to equip the gun with a device that clearly warned that a bullet had been loaded into the chamber. Therefore, although <*20> we agree that the plaintiffs' case was weak, we cannot find that Beretta is entitled to judgment as a matter or law. It follows that the trial court did not err in denying Beretta's motion for nonsuit, and later in denying its motion for a new trial.

IV.

Necessity of Retrial on Issue of Failure to Warn

The jury found, ten to two, that any failure by Beretta to provide adequate warnings was not a substantial factor in Kenzo Dix's death. As the verdict was ten to two, it was not affected by Reverend Bell's vote. The plaintiffs argue that the trial court nonetheless properly granted them a new trial on their claim of failure to warn, pointing out that they are entitled to a strong presumption that prejudice resulted from the misconduct ( In re Stankewitz (1985) 40 Cal.3d 391, 402, 220 Cal. Rptr. 382, 708 P.2d 1260), and arguing that Beretta did not meet its burden of proving that no other juror was improperly influenced by the misconduct. We disagree. The misconduct was Reverend Bell's personal prejudgment of the issues and not his statements. There is no reason to presume from the fact of Reverend Bell's prejudgment, that some other juror also prejudged <*21> the case, and the plaintiffs offered no evidence that some other juror had prejudged the case. There also is no reason to presume that Reverend Bell's statements, although biased, intolerant and abusive, persuaded some other juror to engage in misconduct. A verdict is not impeachable simply because a juror strongly advocated his or her position.

Conclusion

The order granting a new trial is modified to grant a new trial only on the plaintiffs claim of design defect and not on their claim of failure to warn. As so modified, the order is affirmed.

Stein, Acting P.J.

We concur:

Swager, J.

Marchiano, J.