Lying In Wait And Jury Views

March 23, 2017

The Cal. Supreme Court here issue another long opinion affirming a death verdict. They begin by rejecting the defense claim of jury instruction error on the issue of lying in wait. The Cal. Supreme Court says that the issue is whether a defendant can murder by lying in wait when there are only a few seconds of waiting, but they never actually expressly address that point. Instead, they point to lots of planning activity by the defendant, though it’s not clear to me how that’s really relevant to the issue, which is what it takes for concealment or surprise. The period of watchful waiting must be substantial, but the Court says that the period can qualify even if it is only a few minutes. I’m sure that the DAs will read this to support their claim that only a few seconds is enough, though I don’t understand how such a brief period can be “substantial.” Next, the Court upholds the trial court’s refusal to conduct a jury view of the scene of the crime, regurgitating the reasons given by the trial judge for rejecting that request. The next issue related to the trial judge’s inquiries of the jurors during deliberations. One juror complained that another juror was refusing to deliberate, which turns out to mean that the other juror felt sympathy for the defendant. The judge made inquiries of the foreman and the “problem” juror, and instructed the juror not to allow sympathy to intrude (this was in the guilt phase), and of course the jury returned guilt and death verdicts. The Court upholds all this.



People v. Russell; 2010 DJ DAR 17287; DJ, 11/16/10; Cal. Supremes

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