BOYETTE (MAURICE) ON H.C.Petitioner’s Exceptions to the Referee’s Report Brief on the MeritsCal.April 11, 2011peMe COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA 509238 b Case No.SQ32736 In re Maurice Boyette Petitioner, CAPITAL CASE On Habeas Corpus Related Appeal: S032736 (Alameda County Superior Court No. 114009B Honorable Richard Haugner, Judge) PETITIONER’S EXCEPTIONS TO THE REFEREE’S REPORT BRIEF ON THE MERITS SUPREME COURT LynneS. Coffin (SNB 121389) FILED Coffin Law Group 548 MarketSt., #95752 APR 11 201 San Francisco, CA 94104 Tel: (415) 218-8106 Fax: (866) 334-5441 E-mail Lsc(@Coffinlawegroup.com Frederick K. Ohirich Clerk ~~Deputy Attorneys for Petitioner IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re Maurice Boyette Case No.SO32736 Petitioner, CAPITAL CASE On Habeas Corpus Related Appeal: S032736 (Alameda County Superior Court No. 114009B Honorable Richard Haugner, Judge) PETITIONER EXCEPTS TO THE REFEREE’S REPORT BRIEF ON THE MERITS Lynne S. Coffin (SNB 121389) Coffin Law Group 548 Market St., #95752 San Francisco, CA 94104 Tel: (415) 218-8106 Fax: (866) 334-5441 E-mail Lsc(@Coffinlawgroup.com Attorneys for Petitioner TABLE OF CONTENTS I. INTRODUCTION ......0.cetteteen nee 2 Il. INCORPORATION BY REFERENCE .......0...000 0.0... c ccc cee 3 Il. PETITIONER EXCEPTS TO THE REFEREE’S FINDINGS .............. 3 IV. CONCLUSION 2.0... ccc ccc cece ee ee cece eee e teen eenseens TABLE OF AUTHORITIES CASES Arizona v. Fulminante, 499 US. 279, 309 (1991)eeeeee ene 35 Brancy v. Gramley, 520 U.S. 899 (1997) 0.teeene e teen eee 31 Cruz v. Abbate, 812 F.2d 571, 574 (9th Cir. 1987) 20.eeeeee e ene ne ens 3 Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) 2.eens Passim Fields v. Brown, 503 F.3d 755 (2007). 22.cent ne etn e ences 26 Green v. White, 232 F.3d 671 (9th Cir. 2000) 22...cece cee eae 27, 28 Hughes v. Borg, 898 F.2d 695, 700 (9th Cir. 1990) 26.ceceeens 37 In re Carpenter, 9 Cal.4th 634, 653 (1995) 20.eeeteen eee Passim In re Hamilton, 20 Cal.4th 273, 294 (1999) 2.0ecte eee 28, 29 In re Hitchings, 6 Cal.4th 97 (1993) 2.ccccnet teen eee eenes Passim Irvin v. Dowd, 366 U.S. 717, 722 (1961) 0...eeee eee nneas 27 Marino v. Vasquez, 812 F.2d 499, 506 26eeeetn n ence eae ene 28 McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554 (1984)2.cenceeee eee enans 35 Moore v. Preventive Medicine Medical Group, Inc., 178 Cal.App.3d 728, 742 (1986) 0.00... ccc eee eee ene e eee eeees 32 Offutt v. United States, 348 U.S. 11, 14 (1954)2.ceceeet e nett eneen eens 31 People v. Bell, 63 Cal.App.4th 993 2...ccccen eee eeeeeeenaes 29 People v. Blackwell, 191 Cal.App.3d 925 (1987) 2.0...eeen eenenenees 32 People v. Bradford, 154 Cal.App.4th 1390 (2007) 20...ccccee ceeeeeenee eee 28 People v. Cissna, 182 Cal.App.4th 1105 (2010) 26.cccc ceecee ee eee 28 People v. Conklin, 111 Cal.4th 616 (1896). 20.ccccece cece eeeees 29, 30 People v. Cooper, 53 Cal.3d 771 (1991) 00ccccece ence tebe ee evene cece. 34 People v. Danks, 32 Cal.4th 269 (2004) 2.ccceee eee eeenneeees 36 People v. Holloway, SO Cal.3d 1098 (1990) . 2...ccc cence nee eceeeeeee. 34 People v. Jackson, 168 Cal.App.3d 700 (1985) 2... ccc ccc ccc eee nee eeneeccsncces 32 People v. Marshall, 50 Cal.3d 907 (1990) oo.ccc cece cere ene benececee eee. 36 People v. Nestler, 16 Cal.4th 578 (1997) 00cccce eee eenneyecey Passim People v. Pierce, 24 Cal.3d 199, 207 (1979) oocece cee ence e cece, 29 People v. Stansbury, 9 Cal.4th 824 (1995) 20ccc ccc cece eee eeeecceeee. 29 People v. Virgil, 19] Cal.App.4th 1474 (2011)...cneteee n ees 28 Pope v. Man-Data, Inc., 209 F.3d 1161 (9th Cir. 2000) 2...cccccc eee e en eeas 35 Smith v. Phillips, 455 US. 209 (1982) 22ceeet cette cence nenees 31 Tinsley v. Borg, 895 F.2d 520 (9th Cir. 1990) 20...ceecece n eens 34 Tumey v. Ohio, 273 U.S. 510 (1927) 20.ene nneeeenenes 35 Turner v. Louisiana, 379 U.S. 466 (1965) oo.ccc cece ence e enue eeneennes 37 United States v. Allsup, 566 F.2d 68 (9th Cir. 1977). 2000enee e ne eneenens 27 United States v. Bagnariol, 665 F.2d 877 (9th Cir. 1981) 0...cee cence tees 28 United States v. Cerrato-Reyes, 176 F.3d 1253 (10th Cir. 1999) 20.ccece cence 28 United States v. Hendrix, 549 F.2d 1225 (9th Cir. 1977) o.oo cece cece cece cece eb beececeeecee, 30 OTHER California Code Civil Procedure § 231.0... 0.000ccee eceeeceee 30 Fifth, Sixth, Eighth, and Fourteenth Amendmentsof the United States Constitution and UnderArticle I, sections 1, 7, 15, 16 and 17 of the California Constitution. .... 4, 30, 37 TO THE HONORABLECHIEF JUSTICE AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Petitioner MAURICE BOYETTEfiled a habeas corpus petitioner on October 19, 2000, challenging his confinement on San Quentin’s Death Row. During the informalbriefing, respondent concededthat petitioner was entitled to an evidentiary hearing on the issue ofjuror misconduct. On November15, 2006, after reviewing the informal briefing of the parties, this Court issued an order to show cause whyrelief should not be granted on the groundofjuror misconduct. After additional briefing by the parties, on September 9, 2009, the Court found that “based on the record in this matter and good cause appearing: The Honorable Jon Rolefson, Judge of the Superior Court of California, County of Alameda,is appointedto sit as a referee ...” (September 9, 2009 Order.) The Court further held that “the referee shall take evidence and make findings of fact. Jd. Petitioner hereby excepts to the referee’s report and submits this Brief on the Merits. L INTRODUCTION In his habeas corpuspetition, petitioner alleged juror misconduct by Juror Pervies Lee Ary, including materially false answers during voir dire and answersto the juror questionnaire that were designed to conceal and deceive, and the introduction of prejudicial extrinsic information into the deliberations at both the guilt and penalty phases. These material omissions and false answers demonstrated juror bias and violated petitioner’s right to due processoflaw,to confrontation and cross-examination, and to freedom from cruel and unusual punishment under the Fifth, Sixth, Eighth, and underArticle I, sections 1, 7, 15, 16 and 17 of the California Constitutions. Specifically petitioner alleged that the justice system failed because one of the jurors at petitioner’s capital trial was not only a convicted felon, albeit expunged, but also repeatedly lied or omitted material facts when answering not one, but multiple questions in his juror questionnaire and on voir dire. Any speculation about Juror Pervies Lee Ary’s motives for concealing information during voir dire is resolved by his admitted introduction of material and prejudicial extrinsic evidence into deliberations during both the guilt and penalty phases of petitioner’s trial. At the evidentiary hearing, Juror Ary revealed that he had additionalrelatives whohad been acccusedof serious crimes and/or had experiences with illegal drugs. Moreover, Juror Ary confirmed that he also lied when he swore underoath that he would considerlife withoutthe possibility of parole as an alternative to the death sentence. Juror Ary’s repeated misconduct fatally infected both petitioner’s guilt and death sentences. Il. INCORPORATION BY REFERENCE Petitioner hereby incorporates and realleges by reference each and every paragraph in the petition for writ of habeas corpus filed on October 19, 2000,as if fully set forth herein. Petitioner also incorporatesall exhibits appendedto the petition asif fully set forth herein. Specifically, petitioner relies on every material fact in Claim A ofthepetitioner, and the exhibits filed in support of Claim A. WI. PETITIONER EXCEPTS TO THE REFEREE’S FINDINGS Thereferee filed his findings on Decemver 1, 2010. Petitioner excepts to each ofhis findings with the exception of his findings to Question 5 of this Court’s Reference Order which petitioner excepts to as detailed below. Petitioner also excepts to the referee’s ruling limiting and restricting the evidence to be presentedat the evidentiary hearing. EHT 15.' A. The Referee Improperly Limited the Relevant Evidence to be Presented at the Evidentiary Hearing. Petitioner was presented from presenting relevant, material evidence at the evidentiary hearing. Petitioner excepts from the referee’s finding that the evidence at the hearing waslimited by this Court’s order to “very specific areas of inquiry” EHT 15. Petitioner argued at the evideentiary hearing that in order for the referee to make a determination of whether Juror Ary wasbiased against petitioner, the evidence could not be limited to questioning Juror Ary regarding his alleged reasons for falsely answering multiple items contained in the questionnaire. The referee incorrectly found that his inquiry was only to make a determination of Juror Ary’s state of mind at the time he omitted material evidence from the questionnaire. The referee believed, therefore, that any evidence of Ary’s actions that demonstrated juror bias during the trial, were barred. As if demonstrated by the referee’s findings, he made a deterimination of whether Ary wasbiased against petitioner solely on Ary’s self-serving statements at the hearing. Asis detailed belw, to determine whether Ary wasa biased juror, the referee needed to not only take Ary at his word, but to examine Ary’s actions not only at the time he gave false answers on the juror questionnaire, but also during his juror service and the entirety of his testimony at the evidentiary hearing.’ ' The Evidentiary Hearing transcript is abbreviated as “EHT.” The Referee’s Report has unnumbered pages. For the convenience ofthe parties and the Court, petitioner has numbered the pages. The Referee’s Report is referred to as “Ref.” > For example, the referee in his findings, ignored Ary’s testimonyatthe evidentiary hearing that he had numerousadditional relatives that he never named, andpetitionerfailed to uncover during his investigtion, who hadseriouscriminal records involving drugs. While Ary ultimately changed his testimony to say they werenotreally important to him, the fact remains 3 The refereeimmproperly failed to take into account Ary’s demonstrated juror misconduct’ which includedtelling at least one juror to consider false evidence that petitioner had committed another murder, andusing his knowledge of crimes and prisons — exactly the areas that were inquired of in the quesionnaire — to convince jurors to convict petitoner offirst degree murder and special circumstancesandto find for the death penalty rather than sentencing petitioner to life without the possibility of parole. These actions demonstrate Ary’s bias. At the evidentiary hearing, petitioner argued that the evidence barred by the referee was material and relevant to the questionspoised by this Court. Petitioner argued that the barred evidence was necessary to establish the bias of Ary rather than simply showing his juror misconduct in the penalty phase. The referee barred discussion of Ary’s involvementin at least the following areas: labeling certain jurors as “naive,” any discussion among someofthe jurors concerningthe lying in wait special circumstance; Ary’s note to the trial court expressing his inappropriate hostility to petitioner.‘ The referee sustained objections from the prosecutor based on relevance and the scope of the hearing. Petitioner argued that such questions wentdirectly to a determination of jurorbias in this case. Petitioner urged the referee to consider that the law underlyinga finding ofjuror bias and juror misconduct required the court to take evidence not simply to establish that that Ary volunteered the information aboutthese relatives to support his statements that he received his information about prisons - the same information in imparted to the jurorsattrial- from these heretofore unnamedrelatives. This testimony was ignored bythe referee in determining Ary’s credibility and bias. * The referee did permit the preseentation of evidence that Ary directed jurors during the penalty phase to consider improper extrinsic evidence. However, that was only because the language of Question 5 specifically requested this evidence. * The referee also barred the admission of any expert testimony. Thereferee held all pretrial discussions off the record. a juror lied on a juror questionnaire. Petitioner should be permitted to supplementthe evidence presented at the evidentiary hearing to demonstrate that Ary’s actions, throughouthis service as a juror, reveal ongoing misconductthat evidence juror bias. The additional evidence includes: (1) the introduction of Ary of extrinsic evidenceat the penalty phase other than his efforts urging the holdout jurors to watch the movie American Me; (2) the note Ary sentto the trial court demonstrating his bias;° (3) the conversations in the jury room notrelating to the deliberative process including serious arguments aboutfirst and second degree murder; (4) the requests by jurors for extensive read backs of testimony andthe reaction ofjurors to this; and (5) the request to the court to explaim the legal significance of the degrees of murder. [The cour refused to do anything but read back the instructions and [the jurors] got upset and walkedout.] Thereferee prevented petitioner from demonstrating that particular jurors, who > Juror Ary was demonstrably the most active juror throughoutthe trial. Even before the close of evidenceat the guilt phase, Ary was aksing numerousinappropriate questionsofthe trial court all the while attempting to bully other jurors into foregoing read backs of evidenceor additional instruction from the court concerning guilt phase questions. On March 9, 1993, prior to guilt phase deliberations, the court announcedto counselthat it had received a multi-questions note for Ary. RT 1576. The first question was “[h]ow can a homeless person obtain such private lawyersor are the [sic] court appointed.”” The court respondedto counsel, “[t]hats really none of his business, so we’re not going to commenton that.” RT 1576. The second question was “[t]he neighbor wholived 4 housesupthestreet describes the size of the person he saw standing in thestreet or over [near] the body (sml, med,Irg) short or tall.” RT 1634-1635. The third question was “[t]his blind person beingtried also or what” RT 1576, to which the court responded to counsel, “[t]hey have been told and they would betold again in the instructions not to worry about him.” RT 1577 The final question was “did the person ontrial or is he willing to take a lie detector test?” The Court replied,“whichis really of — none of their business as such.” RT 1577. 5 questtioned the findingsoftrue of one of the special circumstances, were isolated during the guilt phase deliberations and told that they were naive, and did not understand the “real world.” Further evidence ofjuror bias would have deomonstrated that if evidence had been taken showing Ary used the precise information that he omitted from the juror questionnaire, including evidence that Ary had valuable information about prisons, that ary was a bus driver in Oakland and Los Angeles allegedly allowing him to witness crimes ofviolence, and that Ary claimed he knewpetitioner was guilty of additional crimes. Ary failed to disclose on the jury questionnaire any of these areas ofhis “special” experrtise. Yet, Ary used his alleged unique knowledge to successfully brow-beat and ultimately to convince other jurors to vote for guilty verdicts and ultimately to agree to sentence to petitioner to death. As petitioner argued at the evidentiary hearing, the basis of a claim for juror bias begins with an examination of Ary’s actions in the guilt phase. The refusal ofthe referee to acceptbriefing on the legal issues or to take evidence supporting the juror bias claim resulted in a serious restriction of petitioner’s ability to demonstrate Ary’s bias. EHT 2-21. The referee also failed to appreiciate that to establish implied bias,petitioner is not required to demonstrate that Ary actually knew that he wasbiased againstpetition. See Memorandum of Points and Authorities for full discussion of this issue. Fields v. Brown, 503 F.3d 755, 808 (2007) (“Remedy for allegation so ofjuror impartiality stemming from ex parte communication and extraneous information is an evidentiary hearing at which the defendant has the opportunity to prove actual bias.”) Thereferee failed to udnerstant this court’s reference questions. The referee determined that the reference questions only allowed evidence showing Ary’s state of mind when he completed the juror questionnaire. Ref. 24 (“[as a juror] . . . was there a ‘pre-existing bias.””). Thereferee stated, “I do not believe I am being asked to determne whether at some point during deliberations or as somepointduring thetrial itself after the evidence commenced, did bias exist.” Id. He further stated that: “[j]ust so we are clear on the issue of the question was Ary biased against petitioner. I interpret that question given where the questionis askedto relate to at the time ofjury selection. In other words, what was the state of mind that he cameintothetrial.” The referee incorrectly read this court’s reference questions. Ref. 24. (“I have very specific areas of inquiry, and that is not one of them [reference to admission of Ary’s questionsto the court during the guilt phase.” Finally, the referee told petitioner that “[w]e are not going to go ona fishing expedition.” Ref. 27, 29. The referee’s refusal to take briefing on the issue of the appropriare scope of the evidence lead to his erroneous determination of Ary’s bias and credibility. To determine bias and credibility he merely looked to Ary’s self-serving testimony at the hearing. The referee’s restrictions of the presentation of evidence was wrong and petitioner excepts from his interpretation of this Court’s reference questions. B. Petitioner Excepts to the Referee’s Findings for Each Question Before Him. Petitioner excepts from the referee’s findings as to each of the reference questions. Question One: Given that Juror Pervies Lee Ary wasin 1964 convicted of a felony grant theft, was incarcerated as a result, was later charged in 1971 with six counts of robbery, later pleaded quilty to misdemeanor drunk driving in 1982, and then hadhis probation revoked in 1982, and given that Ary failed to disclose this information either on his juror questionnaire or during voir dire in petitioenr’s trial,, what were Ary’s reasonsforfailing to disclose thiese facts, was his nondisclosure of the above facts indicative ofjuror bias? Was Aru actually biased against petitioner? The Referee Found That: Ary did not disclose his own criminal history on voir dire because he was not asked about it. The only inquiry into this subject was a single question in the written questionnaire that asked whether he had ever been “accused” of a crime. The referee misunderstood that single question to be asking about convictions. Clearly, the question was not limited to convictions, since it not only used the word “accused,” but also added the phrase,“even if the case did not come to court.” The referee mistakenly found that it was relevant or significant that no further explanation provided, no additional questions on the subject, and no inquiry during voir dire that might have provided clarification. The referee mistakenly found that Mr. Ary expressed the same misunderstanding of the question while testifying at the hearing. This, while his interpretation of the question wascertainly unreasonable, it is not unbelievable under the circumstances. Since his only conviction had been set aside, he believed he had noneto report. Ref3. Petitioner excepts to the referee’s findings as follows: Ary has given numerousreasonsfor his failure to reveal any of the numerous connections of his relatives. Juror Questionnaire question number 25 asked “have you, a close friend, or relative ever been accusedofa crime, even if the case did not come to court? Emphasis in the Original. Ary answered no. This answer wasfalse on multiple grounds. Ary’s failure to reveal the numerous times he had been accusedof a crimeor the connections of numerousrelatives with the criminal justice system wasthefirst indication ofjuror bias. The referee’s finding appears to be based, in part, on his conclusion that Juror Ary was not asked any questions abouthis arrests and prosecutions on voir dire. (Mister Ary did not disclose his own criminal history on voir dire because he was not asked aboutit.) Ref 4. This finding misunderstands the purpose of employing a questionnaire, particularly in a capital case. A questionnaire is employedprecisely so that during voir dire neither side has the need to inquire about subjects covered in the questionnaire unless the answerleads to additional questions. Both sides are entitled to presume that because the court has instructed the jury on the importance of answering the questions carefully and honestly, the court has also remindedthe prospective jurors that their answers are under penalty of perjury. Since Juror Ary failed to give honest answersto these questions, neither side was aware of his extensive contact with the law northe fact that he had numerousrelatives with very significant criminalhistories. The hearing record reflects Ary’s complete lack of credibility. Nevertheless, the referee failed to give any weightto the fact that Ary has given almost a dozen, every-changing reasons, for his failure to answerthis question honestly. Ref. 35-70. Ary admitted that the court instructed potential jurors on the importance of the questionnaire; he knew that it wasto be filled out underpenalty of perjury. Ref. 35-36. He also admits that he understood what the question was asking. EHT 59. Ary’s testimonyrelevant to Question 1 clearly demonstrates that Ary purposely withheld all information concerning his and his numerousrelatives arrests and other connectionsto the criminal justice system. At the evidentiary hearing, Ary, for the first time, claimed to have had a telephonic conversation with someone unnamed person — possibly at the juror commissioner’s ° Ary acknowledgesthat he has a college education. EHT 129. Thus,it is not credible that he did not understand what information should be supplied to honestly answerthe question. office. This unidentified person allegedly told Ary that he did not have a felony conviction. Apparently Ary was now claimingthis is the reason he did notlist the felony conviction on his questionnaire. EHT 32. This statementis not credible.’ Ary suggested that he called the jury commissioner’s office becauseof his felony conviction - thus admitting that he believed he had a conviction and wastold for the first time that the conviction had been expunged. (“That’s how I foundoutI am still eligible for jury duties becauseI tried to get out of it.”) EHT 33. It is highly unlikely that this alleged telephonecall ever took placein light of the fact that Ary never mentionedthe call to any of the investigators, including the District Attorney’s. There is no credible reason why,if this telephonecall had taken place, that Ary would not have revealedit. Ary admitted being arrested in 1964. EHT 36. He admitted that he remembersthat he wasarrested and received six months in jail. EHT 39. He acknowledgedthat he served time in jail. EHT 37. He acknowledgedhis signature on questionnaire. EHT 39. He admitted he remembers he wasarrested in 1971 for robbing the Lucky’s Store. EHT 39. He admitted he had to go to court on this arrest on question from court. EHT 39. He admitted that he remembers that he wasarrested for the crime of driving under the influence of alcohol in 1982; remembered he was fined and sentenced to AA. EHT 40. He testified that he only had two beers overa five hourperiod.* He apparently remembersall of the circumstancesofthis arrest: he was leaving a party and got pulled over. Ary claimed that he had ’ If possible, Ary’s claim gains new incredulity when hetestifies that the jury commissioner’s office said because he hadtop secret clearance in the military, he was eligible for jury service. EHT 33. 8 It is not believable that he failed a Breathalyzer test with these claimed circumstances. He “blew through a machine.” EHT 41. 10 two beers over 5 hours (41) and thatat the time he was 6' 5"tall and weighted about 300 Ibs. EHT41. He also admitted that he went to court and saw the judge. EHT 42. Ary’s again attemptedto justify his failure to honestly disclose information:he did not disclose his arrest and conviction for driving under the influence because this conviction was,in his opinion,“not the kind of crime that the question was looking for.” EHT 109. Asif this explanation was not sufficient, Ary demonstrated that he had endlessrationalizationsforhis failure to disclose the information. Ary told the court that he also “resented that question because I was leaving a nightclub. I limited myself to two beers. The police wassitting right there. He was waiting on people, and J don’t feel I had no problem with no alcohol.” EHT 114. Thislast attemptto explain his actions demonstrates that Ary made a conscious decisionnotto includethis information. Finally, Ary admits that he simply did not wantto divulgehis arrest and conviction for driving under the influence. Asis fully set forth in the memorandum ofpoints and authorities, a juror’s inability to follow the instructions of the court is one ofthe indices ofjuror bias. Ary had ever-changing explanations of why hefailed to answerthis question truthfully. These explanations includedthat “[i]t didn’t seem important to meat that time. EHT 59;his claim that a personat the jury commissioner told him that since he had beenarrested as an accessory it was irrelevant. EHT 59. Turningto his arrests for driving under the influence, his excuses began withhisassertion that a DUIis not criminal. EHT 60. Yet, he admitted that he knew driving underthe influence was a crime but “{he] fe[It] that [he] should have never gotten it. EHT 60. Ary admits that he should have answered yes because he had been “accused”of crimes but failed to do so because “it didn’t seem important to say | did at that time.” EHT 60. 1] Next he says that he failed to reveal the information requested in Question 25 because he “read it wrong.” EHT 61 followed by his next excuse or explanation is the most nonsensical in this longlist. Hetestified “[hJave I been convicted. That’s what I was looking for and it didn’t say convicted. It just said accused and | figured it was no.” EHT 61. Ary follows this nonsensical response by suggesting that he thought the question meant convicted. EHT 61. The last of the long-line of ever change explanations for his perjury is “I made a mistake.” EHT 61. Petitioner agrees that Ary “made a mistake” andthat “mistake” was done with full knowledge by Ary that he was concealing relevant evidence.’ In sum, contrary to the referee’s finding, Ary’s explanationsforhis failure to reveal material, relevant information to the parties was thefirst indication that Ary was a biased juror. One cannot review Ary’s serial, false explanations and find them credible: An anonymousperson in the juror commission office told Ary notto disclose the felony because you have a high military; Notthe kind of crime that the question was looking for; Resented the question; Did not wantto divulge information; It did not seem important to meat the time; Heread it wrong; It didn’t say “convicted;” > Ary’s claim that he did not wantto be a juror because “[he] didn’t wantto be responsible for sending anyone to the penitentiary” is completely controverted by his actions throughout his jury service. 12 It just said accused and he figured no; Question 2: Given that two of Juror Pervies Lee Ary’s sons had criminalrecords, and that one of Ary’s cousins was convicted of murder, and given that Ary failed to disclose this information on either his juror questionnaire or during void dire in petitioner’s trial, what were Ary’s reasonsforfailing to disclose these facts? Was the nondisclosure intentional and deliberate? Considering Ary’s reasonsfor failing to disclose these facts, was his nondisclosure ofthe abovefacts indicative ofjuror bias? Was Ary biased against petitioner. Thereferee found that: Again, the referee appears to absolve Juror Ary of his abject failure to honestly answer this question bystating that he did not disclose the criminal recordsof his relatives on voir dire because he wasnot asked any questions on the subject. Ref. 8. Further the referee absolves Ary for this failure because “the only inquiry into this subject was the same, single question”that the referee found was incomprehensible to Ary, a college educated man, EHT 129, who had no trouble understanding the complex questions in the questionnaire. The referee absolved Ary’s perjury with the singular finding that Ary believes the question called only for “convictions.” The referee found that the convictions of Pervies Ary, Jr. were “years before” and the relationship of father and son “wasso distant that he didn’t even occurto him.” Ref. 8. The referee found that Ary was only “aware at that time of his son’s arrest, but not his conviction.” Id. The referee further found that Ary did not reveal his youngersonsarrests and convictions “because he didn’t think he had to,” since it was not“criminal”or a “conviction.” The third category offailures to reveal requested information wasnot a problem because Ary saidthat he did not think of his cousins and nephewsince they were “not people with whom hehad contact.” Ref. 9. 13 The referee found that Ary’s failures were not intentional or deliberate; that Ary believed he was answering the questions accurately or his nondisclosure was dueto a failure of memory. Having madethis finding,it follows that the referee concluded that Ary’s nondisclosures were not deliberate and did not indicate juror bias. Ref. 9. Asis detailed below, the referee’s findings are not supported by the record. In fact, Ary’s own testimonyat the evidentiary hearing fails to support the referee’s findings. Petitioner excepts from the referee’s findings as follows: Oneofthe most revealing aspects of Ary’s testimony regardinghis relatives who had been convicted of crimes, is the numberofrelatives in this category that petitioner was unaware of until the evidentiary hearing. Ary’s testimonyfirst turned to his eldest son. Ary knew his eldest son had been arrested for drugs. EHT 62. It is not relevant, even if true, that Ary did not get this information from his son. EHT 62. Moreover, this testimony admittedly contradicts what he told the District Attorney’s investigator. EHT 62. Finally, Ary admitted that he knew that his son had been arrested numeroustimesat the time ofhe filled out the questionnaire. EHT 63. Therefore, Ary did notfail to recollect his son’s arrests. With regard to his eldest son’s criminal record heinitially claimed that he did not rememberhis son being arrested specifically for selling cocaine. EHT 43. However, he admitted that both his sons had been arrested. EHT 43. Ary admitted that he knew his oldest son was arrested because his ex-wife telephoned him asking for moneyto get Pervies Ary, Jr. out on bail. EHT 43. Ary knew that his son wasin trouble with the police but claimsthat is all he knew. With regard to this incident he testified that he told the mother of Pervies Jr “and I said for what? 14 Whyis the only time you call me is when he’sin trouble, when he needs some money?” EHT 64. Ary’s testimony demonstrates that this incident was significant for him. Years later, he remembered how angry he was with his ex-wife. Therefore, it is not credible that he failed to recollect his son’s arrest. Of course, given that the question asked for any accusations against relatives, the only relevant information wasthat he was awarethat his eldest son had been arrested andfailed to disclose the information. EHT 43.'° He also admitted that he went to court with this same son, EHT 45, and this occurred prior to his jury service. EHT 46. During the evidentiary hearing, Mr. Ary,forthe first time, brought to the court’s attention that he had nephews whohadserious criminal records and from whom hegainedhis insight into prison life. (“The majority of prison life came from my nephews.”) EHT 95. This information was never broughtto the attention of the trial court or the parties because Mr. Ary once again failed to honestly answer the questionnaire. Apparently Mr. Ary believed that it was preferable to testify that his extrinsic information about prisons did not comefrom his son, but from these heretofore unmentionedrelatives. This testimony was ignoredby thereferee. Mr. Ary described this previously hiddenrelationship as follows: Myprevious marriage, my second marriage, my wife’s sister had four sons. That was during the time I lived in Los Angeles. They became — the oldest one became the second largest cocaine dealer in the city of Los Angeles. They wound up — the © Ary testified that he believed thearrest of his eldest son was for “selling drugs.” Ary admits that he knew “ had something to do with marijuana. I know that much.” EHT 44 15 oldest one got 37 years. The nextto the oldest got 32 years. The one under him got 27 and the other one got 25. The oldest one got 37 becauseofthetriple homicide. All four of them were dealing drugs. All these years when they got out, they started corresponding, calling me andtelling me abouttheir experience, their life in the penitentiary. EHT 95." Ary furthertestified that he had a “first cousin, he has life without the possibility of parole. He belongs to the Black Guerilla Family and I have a nephew, my baby brother’s one and only son. He haslife with the possibility of parole.” Jd. They are incarcerated in California. “And by mebeing the uncle and we might be together, me and my brothers, their names come up and we discuss them.” EHT 96.” In addition, Ary confirmedthat he did not tell the court in his questionnaire, that he had a first cousin who wasserving life without possibility of parole. EHT 98. When questioned bythe referee, Ary gave yet another excuse. Ary did not provide any information because he arbitrarily determined that answering this question was not important. (“. '! Tp later testimony, responding to questions from the referee, Ary did a complete turn around andsaid that it was not his nephews who gave him the information about prison life. EHT 97. Thatthis flip-flopping was ignored by the referee in assessing Ary’s credibility is impossible to reconcile with accepted rules of evidence. Court inquiry - neverhas been in direct contact with cousin (but wasin direct contact with nephews). “Not them individually, but by people themselves whoare in penitentiary forlife. And my nephew,and that’s my baby brother’s son, I have never talked to him and I had no correspondence with him since he’s been incarcerated.” Ary testified that he also hada first cousin who had been sentencedtolife without possibility of parole. The cousin was sentence in 1989 or 1990. 16 _. because I would just read it and say it didn’t go to court, so I said, well, that’s not even important.”) His decision to ignore the instructions of the court is further underscored by his testimony that he did notthink accompanying his youngest sonto court, EHT 67, after he was arrested, merited inclusion becausehe decidedthat “it wasn’t important.” EHT 66. Ary’s testimony about his eldest son is equally unpersuasive and also demonstrates his bias. Hetestified that he did not know his eldest son went to prison but when confronted with his statements to the District Attorney’s investigators to the contrary, he admitted that he had given them contrary information. EHT 69. “I think it was selling drugs. I know it had something to do with marijuana. I know that much.” EHT 72. His testimony demonstrated the prejudicial implications ofhis failure to truthfully answer the questionnaire. Ary stated that he believedthatlife without the possibility of parole really did not mean that petitioner would never be released from prison based on his experience and from his son;he also talked to other people who had been in the penitentiary. EHT 69-70. Ary testified in response to whether he had made these statements to the District Attorney investigators, he responded with hostility — “[s]o I said it yeah.” EHT. 69-70. He further admitted that he knew that his son had “dealings with the police” but then contradicted himself by denying that discussing bail for his son met that his son was accused of a crime./d. Ary at first suggested that he never talked to his son about experiencesin prison. However, in the testimony that followed he admitted that “he could have told me aboutit. “I could have talked to numerouspeople about what was going on in the prisons concerning gangs.” Ary demonstrated how much information he had withheld when he stated that “[d]riving buses in Los Angeles for 23 years I deal with it every day. EHT 62-63. 17 In an attempt to mitigate his failure to disclose information he had receivedfrom his son, he offered yet another source for the extrinsic evidence,testifying that he knew about gangs in prison before his son gave him information because “he talked to his brother who worksin juvenile.” At the timepetitioner filed his writ of habeas corpus he was unawareofthis Ary relative. Ary did not have just one son whose contacts with law enforcementhefailed to reveal. Ary testified that he knew that his younger son, Pervies Ary III, had also been arrested. EHT 47. He knewthat his younger son had been arrested not once but twice. EHT 49. Although Ary failed to disclose any information whenaskedif he or a closefriend or relative had ever been a witness to a crime, he admitted the truth at the evidentiary hearing. EHT 56. Onceagain, he gaveirrelevant information suggesting that he only knewthat his son “did time,” and he dtd not know what his son was accused of. There is no explanation of why he did not haveto reveal this information. Jd. As Ary testimony progressedhis reasons for his perjury changed. Followinghis last explanationis testified that he did not mention his son’s arrest becauseit was a juvenile conviction. EHT 68. Question 3: Given that Juror Ary had previously been convicted of driving under the influence and wasas a result required to attend meetings of Alcoholics Anonymous,andthat oneofhis sons had several prior convictions for drug- related crimes and hadbeenincarcerated at the California Rehabilitation Center at Norco, and given that Ary failed to disclose this information on either his juror questionnaire or during voir dire in petitioner’strial, what were Ary’s reasonsfor failing to disclose these facts? Was the nondisclosure intentional and deliberate? Considering Ary’s reasonsfor failing to disclose these facts, was his nondisclosure of the above facts indicative of juror bias? WasAry biased against petitioner? The referee’s decision regarding this question once againrelied, at least in part, on the 18 fact that Juror Ary was only asked onceto revealto the court that he and his sons had problems with drugs and alcohol. Ref. 9. The referee found that as far as Mr. Ary knew he was answering the question accurately because the question asked if anyone had a “problem”with alcohol or drugs. Id. Petitioner accepts as follows: The referee’s findings are not supported by the evidentiary hearing record. Mr. Ary’s answers to questions posedat the evidentiary hearing, in his declaration, and in his answers in the interview with the District Attorney investigators, demonstrate that the testimony of Mr. Ary at the evidentiary hearing wasnotcredible. Asstated in reference to Question 2, Ary testified that he did not know his eldest son wentto prison, but when confronted with his statements to the District Attorney’s investigators to the contrary, he admitted that he had given them contrary information. EHT 69. “I think it wasselling drugs. I know it had something to do with marijuana.’’ Mr. Ary testified that he was told “all about”his son’s criminal history “other than the fact that when he was in prison he had a join a gang?” EHT 127." Mr. Ary attempted to convincethe court that “[t]he years he spent time in the penitentiary ~ I had —I wasnotpart ofhislife’ EHT 126. However, Mr. Ary wasforced to acknowledge that '3 Contrary to the findings of the referee, Mr. Ary has admitted that he was aware of his son’s involvement with drugsprior to his jury service. '4 Subsequently, Mr. Ary once again changedhis testimony. This involved how he got his information about gangs in prisons. Mr. Ary now sayshe “got the majority of [his] information from my previous marriage nephew.” EHT 93. Thisis thefirst time the nephew had been mentioned. His nephewis his nephew by his previous second wife. His gang info cane from his two nephewsand“street talk.” Jd. 19 “fb]ut 1989, I believe, when I moved from Kansas back to Oakland I stayed a couple of days, maybe a week with my son until got my ownplace, and he wasstaying with is girlfriend then.” Id. Forthefirst time, Mr. Ary revealed that he had also failed to inform the court of other relatives who had serious involvement with drugs. Mr. Ary testified that through his ex-wife he had becomeinvolved with her nephews. His wife’s sister had four sons. They oldest one becamethe second largest cocainedealer in the city of Los Angeles. The four boys received severe sentences, which Mr. Ary explainedin great detail. EHT 93.’° Mr. Ary explained that“[a]ll these years when they got out, they started corresponding,calling me andtelling me about their experience,their life in the penitentiary.” Mr. Ary explained “by mebeing the uncle and we might be together, me and mybrothers, their names come up and we discuss them.” EHT 96. Onceagain, Ary flip-flopped his testimony. Ary did a one-hundred- eighty turn andtestified that the information aboutprisonlife did not comefrom first cousin or nephew. “Not them individually, but by people themselves whoare in penitentiary for life. And my nephew,and that’s my baby brother’s son, I have never talked to him and I had no correspondence with him since he’s been incarcerated.” EHT 97. This testimony alone should have led the referee to find Mr. Ary incredible. Mr. Ary could find no credible explanation as to whythese relatives were not revealed in the questionnaire. He can not explain how theserelatives could have given him the information '5 The oldest nephew received 37 years. The next oldest got received 32 years. The next one wassentenced to 27, and the youngest received a sentence of 25 years. The oldest received 37 years because he was convicted of a triple homicide. All four of them were dealing drugs. EHT 93. 20 that he relayed to the jurors at petitioner’s trial if they gave him the information subsequentto his juror service. He, of course, could not give any answerto justify his claim that he only came have the above informationafter his jury service when his connection to his nephews was through his wife and his marriage was over before he served as a juror. EHT 93. Whenasked to explain why hedid not reveal the information about his nephews he stated, “I wasn’t close to them as far as being around them to just, boom, automatically think about them.” Ofcourse, this is belied by Ary’s ability to rememberhis talks with these nephews giving informationto other jurors about gangsin prison. Nevertheless, Ary changed his testimony once again and stated that “myfirst cousin, he has life without the possibility of parole. He belongs to the Black Guerilla Family and I have a nephew,my baby brother’s one andonly son. Hehaslife with the possibility of parole.” Again, because Ary is not very skillful in keeping his stories consistent, these changesin testimony should haveresulted in a finding by the referee that his testimony was incredible. EHT 97. With regard to his own driving underthe influence (DUI) conviction, Ary stated that he has no problem with alcohol, and a conviction for DUI, did not count. EHT 70. His claimed that his assumption wasthat this question referred to a “drug addict or alcoholic.” EHT 72. This testimony was unpersuasive because it was followed by Ary’s admission that “anybody has a problem if you are selling drugs instead of making a decent living.” EHT 73. Ary admitted that he knew that his son smoked marijuana, EHT 73, but claimed that there was a difference between “having a problem and being involved with drugsor alcohol. You can be a drug dealer and nevertouch thestuff.” Jd. This testimony does nothing to justify Ary’s failure to revealthis information. 21 Question 4: Did Juror Pervies Lee Ary assert during jury deliberationsthat Petitioner had previously committed uncharged murders? If so, did this occur during deliberations at the guilt phase or the penalty phase? Did other jurors discuss this topic as well? The referee foundthat: Mr.Ary did notassert that petitioner had previously committed uncharged murders. Ref. 10. Petitioner accepts as follows: Thereferee’s findingis difficult to reconcile with his finding that Juror Cynthia Lewis testified that Ary told her that she should rememberthat petitioner “did kill someoneelse.” Id. The referee inexplicably found that Ms. Lewis “was confused.” Jd. The referee misread or ignored the question asked by this Court which clearly asked if Ary said during the deliberations that petitioner had committed an uncharged murder. It is not relevant that Ary made this statementduring the penalty phase, particularly becauseit is further evidence jury bias and misconduct. Ary was shown thedeclaration that he had signed underpenalty of perjury and admitted that it was his declaration. EHT 77. He“could have”told the District Attorney investigator that the declaration was completely accurate. EHT 79. (“I wouldn’t have signedit [if it wasn’t accurate];” Cannot rememberbutheis “sure” that at the point at which he signed the declaration he believed everything it in was true and accurate. EHT 92. Responding to a question from the court, Ary stated “I’m sureit’s accurate. Yes.” EHT 82. After examining his declaration, Ary changed his testimony. He nowstated that “we discussed the fact that this may have beenthe first murder Mr. Boyette had been caughtat.” 22 EHT 78. “They could have discussed the fact that this may have beenthe first murder for which Boyette was been caught but he may have committed previous murders.” EHT 117. The referee completely ignored this testimony and made no referenceto it in his report. Ref. 10. Mr. Ary’s admission that he discussed the fact that petitioner may have committed other murders is confirmed by Juror Cynthia Lewis. Althoughthe referee mischaracterized and dismissed Ms. Lewis’ testimony in his report, Ms. Lewis was clear that she remembered what Ary said to her. Ms. Lewistestified that another jurortold herthat [petitioner] he was not charged with. EHT 162. Ms. Lewis described Ary as the person whotold her about the uncharged murders. Describes Ary as the person whotold her as the bus driver. Id. “[Ary] nudged me,and hesaid, “Now, Cynthia, you rememberthat he killed someone else?” EHT 172. And she responded “but aren’t we supposed to mark that out or the judge said to not include that or something?” EHT 166. Ms. Lewistestified that the conversation occurred in the penalty phase.'® After the conversation she changed her vote from life without possibility of parole to the death sentence. EHT 170. Question 5: Did Juror Pervies Lee Ary urge other jurors, during jury deliberations, to watch the movie American Me in order to learn more about the natureof a prisoner’slife in prison? Did any juror actually watch the movie at any time during petitioner’s trial or jury deliberations? The referee found that “Mr. Ary, along with one or more otherjurors, did urge two holdoutjurors to watch the movie American Mein order to learn more about the nature of a '6 While not definitive, Juror McLarenalsotestified that the jurors “could have” discussed the fact that this may have been thefirst murder for which Boyette was been caught but he may have committed previous murders. EHT 117. 23 prisoner’s lie in prison. Ref. 10. Petitioner excepts as follows: There is no doubt that Ary told two jurors to watch the movie, American Me. Ary testified that the two hold-out jurors “needed to know what prisonlife waslike.” Ary believedit was based on a true story. EHT 99.“I said why don’t youall go getit from Blockbuster. Don’t lookat it once, but lookat it twice to get a very good understanding about what prison life is like.” EHT 100-101. The testimony made clear that the impetus for “encouraging” the two hold-out jurors to commit juror misconduct when the viewed extrinsic evidence, was Juror Ary. Moreover, the impetus for viewing American Me was not,as found by the referee, “to learn more aboutthe nature ofa prisoner’s life in prison.” Ref. 10. In fact, it was to convince the two-hold out jurors that if they did not vote for death, petitioner would kill again in prison. Mr. Ary had only one motive - to convince any jurors who werenot voting for death that it was a foregone conclusion that life without possibility of parole inevitably meant death for someone else. Mr. Ary believed that there was only one possible penalty to consider. Ary admits that he disregarded the instructionsof the judge and took it upon himself to “educate” the “naive” jurors again using knowledgethat he withheld from the parties and the court. '” Ary agreedthathe told District Attorney investigators that he talked to otherjurors about street fighting explaining that “they couldn’t imagine things like what happened in reallife. 7 Ary also admitted that he may have talked to other jurors during guilt phase about“street fighting.” 24 They were overprotected.” EHT 76. The jurors were “naive.” Jd. Ary further testified aboutthe information of prison life that he imparted to the other jurors: “[m]y informationthat I have received over the years when it concerns prison life — your medium — mediocrefacilities is not as severe asit is like in San Quentin, Vacaville, your — what do they call it, the big boys’ security sentenceis if you wantto survive, you have to be part of a group or a gang. Theycall it families.”” EHT 94. Mr. Ary gave a different account to the District Attorney’s investigator, saying that this knowledge was based on his experience and “from [his] son and talking to other people who havebeenin the penitentiary. Id. Moreover, Ary used his knowledge - the very knowledge aboutprisons and prison gangs that he failed to reveal on his juror questionnaire, to influence the jurors to vote for the death penalty. This is evidence ofjuror bias that the referee failed to credit. Admitted that he remembered the experience during jury deliberations and thought it was importantto tell the other jurors. Ary really could not keep his story straight: “[my son] could have told me that or where I got it from I can’t say this particular person told me. It could have been myson.” Later Ary testified “The majority of prison life came from my nephews.” EHT 95. The referee found that Juror Ary, along with one or more other jurors, did urge two holdout jurors to watch the movie American Mein order to learn more aboutthe nature of a prisoner’s life in prison. Asto the related question “[d]id any juror actually watch the movieat any time during petitioner’s trial or jury deliberations” the referee found that two jurors — Julie McLaren and Christine Rennie — did watch the movie during the penalty phase deliberations. Referee at 10. 25 Petitioner agrees that at least two jurors, Christine Rennie and Julie McLaren, watched the movie during the penalty phase. Thereferee’s finding omits material and relevant information concerning Juror Ary’s other actions during the penalty phase. Juror Ary testified that “[t]he two jurors which was the two youngladies, there were so naive aboutstreetlife until they were so determined that he couldn’t harm no one while he was in prison for the rest of his life, and we discussed this, we deliberated and discussedit, and that Friday, the judge said, well, we got to come to aconclusion. We have to do something aboutthis becauseit’s been deliberated too long, so J asked there two youngladies, becausetherest of us had already found him guilty with special circumstances, the death penalty, but these two said he will never hurt anyoneas longasheis in the penitentiary forlife.” “T said you just don’t know anything aboutprison life. I said you two go to Blockbuster and get the movie “American Me.” Sit down and lookat it. It will explain penitentiary life to you, and you will see what a person can do while heis in the penitentiary.” EHT 100. “T said why don’t youall go get it from Blockbuster. Don’t look at it once, but look at it twice to get a very good understanding about whatprisonlife is like.” 100-101. Juror Ary further admits that he told two jurors to watch American Me to “get knowledge of prison life. . . because this is based on a true story.” EHT 86. He waspart of the discussion with the “two young ladies”he used his personal experiencesto assist them in understandingthat the death penalty wasthe correct decision. EHT 92. Juror Ary also admitted that two jurors talked to him the next day that they were together to deliberate. EHT 86.'® There were two '§ Sustains objection as to what they said to him on hearsay grounds. EHT 88. 26 people who were unwilling to vote against the death penalty. The next day the jurors deliberated the jury was unanimous. EHT86. Ary also admitted that he could havesaid in his interview with the DA inv when asked were you concernedthat Boyette may get involved with gangs when he goesto prison and you answered “not on death row. He is alonethere.” His information wasreceived “over the years whenit concernsprison life — your medium — mediocre facilities is not as severe as it is like in San Quentin, Vacaville, your — what do they call it, the big boys’ security sentence is if you wantto survive, you haveto bepart of a group or a gang. Theycall it families.” EHT 94. To interviewers he said this was based on his experience and “from [his] son and talking to other people who have beenin the penitentiary. EHT 94. Nowclaimsthat he did not believe that his son told him. . . he could have told me that or where I got it from I can’t say this particular person told me. It could have been myson.” Asdiscussed above petitioner thentestified that “[t]he majority of prison life came from my nephews.” EHT 95. Another juror, Cynthia Lewis testified that she wasnotinitially in favor of giving Boyette the death penalty. EHT 163. She remembers discussion of American Mebut does not know which phase. EHT 164. There were three people against the death penalty. CPA, teacher and her [nurse]. All women. EHT 168. Juror Julie McLaren, rememberedthat the movie was discussed during the penalty phase. Ms. McLaren does not remember whosuggested watching the movie. EHT 193. There were maybethree or four undecided jurors and she was one of them. Watching the movie wasdirected at the undecided jurors. Jd. She wastold that she should watch the movie so she would know 27 whatlife was like in prison. EHT 198, 202. She watched the movie. After she watched the movie there were further deliberations. The next time the jury was together she voted for death, confirming Ary’s testimony on this point. EHT 194. Christine Rennie, anotherjuror,testified that the jury was more divided in the penalty phase. EHT 205. A numberof people were worried that Boyette would kill again. EHT 207. Ary was very outspoken. EHT 209.'” The busdriver (Ary) wasthe one thattalked about watching the movie. EHT 211. She was concerned that she wasnot oneofthe people that had the life experience of having a relative in prison. EHT 213. Ms. Rennie watched the movie. EHT 213. Whenshe returned to deliberations she changedher vote to death. EHT 215. There was a discussion about watching American me. Id. EHT 230 (Darlene Perez). Believes Ary was the onethat suggested it. EHT 222; EHT 233 (Darlene Perez). The bus driver (Ary) had seena lot of stuff on the streets. It was in the same discussion as watching the movie. EHT 233(Darlene Perez). There was no discussion of American Meafter the initial discussion. EHT 218. She remembers that Ary said “something about he’d probably kill somebodyin prison anyway. EHT 221. The suggestion was directed at two young white females. Had to do with them being “young and naive” They neededto find out whatprison life was about. EHT 223; Darlene Perez 229. These twojurors weretold to watch the movie becausetheylived in the suburbs and didn’t really know how life on the streets really was. EHT 229 (Darlene Perez). Darlene Perez also watched the movie. EHT 232. After "© Petitioner was prevented by the referee from asking if any one suggested that if petitioner was not given the death penalty he would be outof prison in seven years. 28 watching the movie the division of the jurors went from10-2 to unanimous. /d. Priorto this there were two holdouts. EHT 233 (Darlene Perez). IV. MEMORANDUM OFPOINTS AND AUTHORITIES A. Introduction Petitioner was convicted of capital murder and sentenced to death bya jury that included a juror whose gross misconductestablishes his bias. The evidence of Juror Ary’s bias and prejudice againstpetitioner begins with his failure to reveal his status as a convicted felon, continues throughhis false and misleading responses during voir dire and culminates in two highly prejudicial acts of misconduct during deliberations. Throughoutpetitioner’s trial, Juror Ary did everything in his powerto insure that petitioner would be convicted of capital crimes and sentenced to death. The cumulative effect of his misconduct was overwhelmingprejudicial to petitioner.” In the courtroom,the juror misconduct was abetted by the prosecutor who improperly encourage the jury to speculate that petitioner would join the Black Guerilla Family, a notorious prison gang, and baselessly argued petitioner’s “future dangerousness.” Inside the jury room, Juror Ary told his fellow jurorsthat petitioner had committed a prior murder, an egregious and devastatingly prejudicial falsehood. Then during penalty deliberations, Juror Ary improperly shared his son’s experiences while incarcerated and urged the holdout jurors to watch a film that depicted the Black Guerrilla 0 Additional misconduct wasrevealed at the evidentiary hearing, including Ary’s revelation of additional relatives in prison for drug dealing that he failed to reveal in the questionnaire. 29 Family as a violent prison gang holding sway over the inmates in California state prisons. Rarely, if ever, has the record ofa capital case contained undisputed evidence of such pervasive — and admitted — misconduct. Each of the numerous instances of misconduct, standing alone, would require reversal of petitioner’s convictions and sentence. Viewed together, they reveal a shocking pattern of wrongdoing. Petitioner’s Writ should be granted forthwith. B. Juror Ary’s Deceptions During Voir Dire Reveal His Patent Bias “The whole point ofvoir dire[is to] elicit through careful inquiry, indicationsofactual, implied or merely imagined in order to impanela fair and impartialjury. If a prospective juror responds honestly, then the markers for implied or actual bias appear. It is then up to the parties to pursue a challenge. When facts not dishonestly concealed cometo lightafter thetrial is over and there has beena full evidentiary inquiry into whether the juror wasreally biased, there is no longer any need to “imply” bias. We knowtheactual facts. Fields, 503 F.3d atn.10. “Ifa juror is honest,i.e., reveals enough information to signal follow-up then the remedyis a cause challenge. Fields, 503F.3d at 773. Because a defendant charged with a crimehasa right to the unanimousverdict of 12 impartial jurors[citation] it is settled that a conviction cannotstand if even a single juror has been improperly influenced.” People v. Nestler, 16 Cal.4th 578. Cc. It is not necessary to determineif Juror Ary wasactually biased against petitioner because implied biasis dispositive. In Green v. White, 232 F.3d 671 (9th Cir. 2000), juror misconduct was found and a new trial was ordered, because of a pattern of misleading statements and concealment by a juror. In addition, the juror was involvedin several incidents during his jury duty that impeachedhis impartiality. Green, 232 F.3d at 673. Thestate court believed that the misstatements were 30 unintentional. Green, 232 F.3d at 676, quoting from Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998). The Ninth Circuit held that the a“pattern of lies, inappropriate behavior, and attempts to coverup his behavior introduced ‘destructive uncertainties’ into the fact-finding process.” quoting Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) The Sixth Amendment guarantees a criminal defendanta fair trial by a panel of impartial, indifferent jurors. See Irvin v. Dowd, 366 U.S. 717, 722 (1961) Green, 232 F.3d at 676. Actual bias against a defendant on a juror’s part is sufficientto taint an entire trial. Green at 676; See United States v. Allsup, 566 f.2d 68, 71 (9th Cir. 1977). In Dyer, a case directly on point with petitioner’s case, an en banc panel of the Ninth Circuit was faced with a juror whoselies concealed information that would have kept heroff the jury. While the panel was unableto find any actual bias on the part of the juror, see Dyer, 151 F.3d at 981, the Ninth Circuit nevertheless presumedbias on the juror’s part, inferring from her pattern oflies a desire to “preserve herstatus as a juror and to secure the right to pass on Dyer’s sentence.” Dyer, 151 F.3d at 982, Green, 232 F.3d at 677. While the court was unable to say exactly what motive the juror hadto stay on the jury,it believed that, “[t]he individual wholies in order to improve his chancesof serving has too muchatstate in the matter to be considered indifferent.” Id. The Dyer court did not presume bias becauseofthe juror’s past history; in fact the court very clearly indicated that it did not know whetherherpast history madeherbiased. See Dyer, 151 F.3d at 981. (“it’s certainly possible that anger about her brother’s killing drove[the juror] to finagle a seat on the jury so she could lobby for a conviction and death sentence . . . On the other hand,the fact that many ofher relatives had been arrested suggests she could have harbored 31 some empathy for criminal defendants. Jd. The court in Green, explained that to determine juror bias it is important to lookatall the facts as a whole. Each incident should not be looked at separately b/c they might be harmless in isolation. But when [Juror Ary’s] behavior is viewed as a whole, a much moresinister picture appears. Green, 232 F.3d at n. 10. The presenceof a biased juror cannot be harmless; the error requires a new trial without a showingofactual prejudice. Dyer, 151 F.3d at 973; Although “bias can be revealed by a juror’s express admissionofthat fact, .. more frequently, jurors are reluctant to admit actual bias, and the reality of their biased attitudes must be revealed by circumstantial evidence.” Dyer, 151 F.3d at 1111-1112 quoting United States v. Allsup, 566 f.2d 68, 71 (9th Cir. 1977). “Unlike the inquiry for actual bias, in which we examine the juror’s answers on voirdire for evidence that she wasin factpartial, ‘the issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced.’”” Quoting United States v. Cerrato-Reyes, 176 F.3d 1253, 1260-61 (10th Cir. 1999). Thetest for prejudice is not strength of the prosecutor’s case, but whetherthe impartiality of the jury has been compromised. People v. Virgil, 191 Cal.App.4th 1474,n. 5 (2011); See People v. Nestler, 16 Cal.4th 561, 578-579 (1997). Virgil, 191 Cal.App.4th at 1488 (“reversible error for juror misconduct “commonly occurs wherethere is a direct and rational connection between the extrinsic material and a prejudicial jury conclusion, and where the misconductrelates directly to a material aspect of the case.’”) Quoting Marinov. Vasquez, 812 F.2d 499, 506 citing United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir. 1981) An impartial jury is one in which no memberhas been improperly influenced and every memberis capable and willing to decide the case solely on the evidence before it. People v. 32 Cissna,182 Cal.App.4th 1105, 115 (2010) citing In re Hamilton, 20 Cal.4th 273, 294 (1999). (“[T]he jury’s verdict must be based upon the evidence adducedattrial uninfluenced by extrajudicial evidence . . .”) Cissna, 182 Cal.App.4th at 1115 citing Peoplev. Bradford, 154 Cal.App.4th 1390, 1413-1414 (2007). “When the record showsthere was juror misconduct,the defendantis afforded the benefit of a rebuttable presumptionofprejudice.” Citing People v. Pierce, 24 Cal.3d 199, 207 (1979). This presumption is provided as an evidentiary aid to the defendant because of the statutory bar against evidenceofajuror’s subjective thought processes and the reliability of external circumstances to show underlying bias. Citing Jn re Hamilton, 20 Cal.4th at 295, Juror bias does not require that a juror bear animosity towards the defendant. Rather, jurorbias exists if there is a substantial likelihood that a juror’s verdict was based on an improper outside influence rather than on the evidence andinstruction presentedat trial and the nature of the influence was detrimental to the defendant. Citing Jn re Hamilton at 294. Juror Ary intentionally disregarded the judge’s instructionsby failing to honestly answer the questionsin the questionnaire. Perhaps most important is that Ary lied when hesaid he would considerlife without the possibility of parole. In fact, Ary’s actions during the penalty phaseofpetitioner’s trial establish that Ary believed that in a death penalty case the only verdict is death. The court in Virgil involved “one of the most egregious types ofjuror misconduct.” Virgil, 191 Cal.App.4th at 1477. During deliberations, a juror performed an experiment and reported results to his fellow jurors who were struggling with a crucial issue in the case. Id. It is absolutely forbiddenfor jurors to do their own investigation outside the courtroom.Virgil, 191 33 Cal.App.4th at 1483, citing People v. Conklin, 111 Cal.4th 616, 628 (1896). Virgil was a college professor thereby enjoying enhancedstature in the eyesofhis fellow jurors and lending credenceto his conclusions. Ary also enjoyed enhancedstatus as a “street smart” juror foreman - the person who knew moreaboutthe criminal justice system than any of the other jurors. Extrinsic evidence cannot be considered harmless “Thefact that the experiment was performed by one juror, . . . outside of the court room and the deliberations, is more egregious and resulted in outside influencesor extrinsic evidence permeating the jury’s deliberations on perhapsthe key factual determination on the case.” People v. Bell, 63 Cal.App.4th at 933. The California Supreme Court found prejudicial misconduct because the jurors conducted an experimentoutsidethetrial setting, which created new evidence outside the trial setting, which created new evidencedirectly related to a “vital issue” in the case. Quoting Conklin, 111 Cal.4th at 314. In this case, in the guilt phase, Juror Ary,told at least one juror that petitioner had committed another murder. Heused this extrinsic evidence as well as the information he failed to reveal in his questionnaire to convincethe jurorsto find the lying in wait special circumstance. Juror Ary lied on his juror question and then used the informationthat he failed to reveal to convince two hold-outjuror to commit juror misconduct by viewing prejudicial extrinsic evidence - the movie American Me. After viewing the movie, the two hold-out jurors changed their votes and the jury delivered a verdict of death. Ary produced new evidence without knowledgeofthe parties. Presumption ofprejudice - reasonable probability of actual harm The Sixth Amendment guarantees criminal defendants a verdict by impartial, indifferent 34 jurors. United States Constitution, Amendment VI, XIV; California Constitution, Article I, § 16; People v. Bell, 63 Cal.App.4th at 933. Thebias or prejudice of a single juror violates a defendant’s rightto a fair trial. The juror in Dyer was foundto be biased byinferring from her pattern oflies a desire to “preserve herstatus as a juror and to secure the right to pass on Dyer’s sentence. Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998); United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir. 1977). Juror Ary’s failure to truthfully answer multiple voir dire questions deprivedpetitionerof his state and federal constitutional rights to a fair and impartial jury, to due process, andto fair and reliable verdict and sentence. To enforce these rights, the defendant mustalso have the statutory right to exercise peremptory challenges to prospective jurors who the defendantbelieves cannotbe fair and impartial, California Code Civil Procedure § 231, and to challenge for cause any juror harboring actual or implied bias. California Code of Civil Procedure § 225. It is important to examine what is at stake when juroris discovered to have secured a place on a jury, particularly in a capital case, whenhe is not only barred by statute from service, but has repeatedly given false answers during voir dire. As the Ninth Circuit remarked in Dyer, “(mlJore is at stake than the rights of[p]etitioner; ‘justice must satisfy the appearanceofjustice.’” Dyer v. Calderon, 151 F. 3d at 983 quoting Offutt v. United States, 348 U.S. 11, 14 (1954). The selection of “those whosit in judgement‘casts a very long shadow.”” Dyer, 151 F.3d at 983 quoting Cruz v. Abbate, 812 F.2d 571, 574 (9th Cir. 1987). A perjured juroris as incompatible with our truth-seeking process as a judge who accepts bribes. Brancy v. Gramley, 520 U.S. 899 (1997). Theresult of having a jury that includes someone whohas been empaneled through 35 dishonesty in voir dire, is the underminingofthe impartiality of the jury. Dyerv. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (en banc) (Dishonest answers underminethe impartiality of the jury.) Whena jurorlies, it reflects an inability to render an impartial verdict. Smith v. Phillips, 455 U.S. 209, 220 (1982); Dyer v. Calderon, 151 F.3d at 982. Asthe Ninth Circuit held in Dyer: A perjured juroris unfit to serve even in the absence of vindictive bias. Ifa juror treats with contempt the court’s admonition to answervoir dire questions truthfully, she can be expectedto treat her responsibilities as a juror — to listen to the evidence, not to consider extrinsic facts, to follow the judge’s instructions — with equal scorn. Moreover, a juror who tells major lies creates a serious conundrum forthe fact-finding process. How can someone whoherself does not comply with the duty to tell the truth stand in judgmentof other people’s veracity? Having committed perjury, she may believethat the witnesses also feel no obligationsto tell the truth and decide the case based on her prejudicesrather than the testimony. Dyer vy. Calderon, 151 F.3d at 983. At the outset of voir dire the trial court madeclear that open and honest answers were required from the prospective jurors. Thetrial court stressed the critical importance of each juror “maintaining an open-mindedattitude toward the case” and explained that an “unbiased”juror was a person whohad “not made uptheir mindor [was] not so biased as to one particular position.” RT 143. If a juror “fel[t] the least bit uncomfortable answering any question [the juror] may indicate [the juror’s] preference by writing ‘private’ or ‘confidential’ in the place reserved for the answer.” RT 149-50. The potential jurors were assured by the court that if they answered “private” or “confidential” the juror would be “questioned individually out of the presenceofthe other jurors.” Jd. 36 The questionnaire questions that Juror Ary falsely answered were each a single simple sentence, using basic words. Whenthe voir dire questioning (or the questionnaire)is sufficiently specific to elicit the information that is not disclosed, or to which a false answeris later shown to have been given, the defendant has established a prima facie case of concealment or deception. People v. Blackwell, 191 Cal.App.3d at 929, citing Moore yv. Preventive Medicine Medical Group, Inc., 178 Cal.App.3d 728, 742 (1986); People v. Jackson, 168 Cal.App.3d 700, 705-06 (1985). In this case, the voir dire questions were more than sufficiently specific and free from ambiguity. The only inference or finding that can be supported, is that Juror Ary was aware of what information was sought, and deliberately concealed it by giving false answers. See People v. Blackwell, 191 Cal.App.3d at 930. Concealmentis intentional if “the questions on voir dire clearly and fairly asked [the juror] to reveal [certain knowledge.]” In re Hitchings, 6 Cal.4th 97, 116 (1993). It is extremely difficult to credit the referee’s findings that Juror Ary misunderstood what information was sought when he wasasked,“[h]ave you, a close friend or relative even been accused of a crime even ifthe case did not cometo court?” Juror Ary’s purported ignoranceis even harder to understandin light of the information he received from counsel during voir dire that explicitly connected this case with drugs and drug dealing. During voir dire, Juror Ary was told that “where the killings occurred was a drug house. And someofthe people that maytestify, you know, may have used drugs.” RT 1097. The follow-up question further inquired “[i]s that going to cause you anybias or prejudice one wayor the other?” Juror Ary answered,“I don’t think so.” RT 1097. There were no-follow-up questions to Juror Ary’s affirmation of lack of 37 bias because counsel and the court were unaware of Juror Ary’s son’s serious involvementin drugs, felony drug possession and sales convictions andstatus as an addict. Evidence that Juror Ary intentionally concealed material information can also be found in his multiple failures to reveal information on numerousotherrelevant subjects. In Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998), an en banc panel of the Court of Appeals for the Ninth Circuit, found juror misconductin a strikingly similar, although less egregious, situation. The Court was asked to determine, based on an examination ofa series of misstatements and omissions madeby the juror during voir dire, these misstatements and omission demonstrated that the juror was biased against the defendant. The en banc panel concludedthatthe juror’s failure to mention “every relevant event” during voir dire might have an innocent explanation, but the juror’s failure “to mention any ofherrelatives had been accused of crime defies innocent explanation.” Dyer, 151 F.3d at 980, emphasis added. Here, Juror Ary not only failed to mention that his sons had criminal records, but unlike the juror in Dyer, he also failed to reveal his own extensive criminalhistory, including his felony conviction. The Dyer Court found,in the face of repeated concealment of relevant information by a prospective juror who “overlook[ed] too many incidents,” that the responses or omission could notattributed to “mere forgetfulness.” Jd. Moreover, the court in Dyer, foundit significant to a finding of bias that the juror, like Juror Ary, continued to maintain, during the post conviction investigation, that she was not required to reveal any of the concealed information. Juror Ary’s repeated false answersreflect a lack of candor that in turn points to an “Tijnability to render an impartial verdict.” See Dyer, 151 F.3d at 981 quoting Smith, 455 US. at 38 220. The Dyer en banc panel determined that is was unnecessary to reach any conclusion on whether the juror was actually biased, i.e., whether she was disposed to cast a vote against Dyer, because the implied bias issue was dispositive. Dyer, 151 F.3d at 981. The circumstancesthat give rise to a finding of implied bias were outlined by the Dyer Court. As in Dyer, Juror Ary gave every indication that he was not indifferent to service on the jury. Hefailed to disclose any facts that would have jeopardized his “chances of serving on [petitioner’s] jury. Dyer, 151 F.3d at 982. His repeated mistruths giverise to the inference that Juror Ary “lied in order to preserve [his] status as a juror and to secure the right to pass on [petitioner’s] [capital] sentence.” Jd. As the Ninth Circuit made clear, it is unnecessary to determine why Juror Ary cherished the right to a seat on petitioner’s jury because “the individual wholies in order to improve his chances of serving has too muchofa state in the matter to be considered indifferent.” Jd.” Whatever the juror’s motivation, an excess of “zeal”to serve “introduces the kind of unpredictable factor into the jury room that the doctrine of implied bias is meant to keep out.” Dyer, 151 F.3d at 982. A juror wholies materially and repeatedly in response to legitimate inquiries about his background “introduces destructive uncertainties into *! Tt is important to recognize that the Ninth Circuit’s finding of implied bias in Dyer waspossible even without the additional misconduct present here. The juror in Dyer failed to reveal numerousrelevantfacts during voir dire but it was not alleged that she committed any additional misconduct during herservice as a juror. Thus, the court’s implied bias finding rests solely on her false answers to material voir dire questions. Here, the finding of implied bias is supported not only by Juror Ary’s failure to truthfully answer numerous material voir dire questions about himself and his three son’s criminal records and drug and/or alcoholissues, but additional indicia of bias is foundin his failure to reveal his convicted felon status and his misconduct throughoutthetrial. 39 the process.” Jd. Juror Ary’s “potential for substantial emotional involvement, adversely affecting impartiality” is palpable. Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990) quoting United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977). Asa general rule, California law holds that juror misconduct “raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted.” In re Hitchings, 6 Cal.4th at 118, quoting People v. Cooper, 53 Cal.3d 771, 835 (1991); People v. Holloway, 50 Cal.3d 1098 (1990). In petitioner’s case, because the record demonstrates undisputed subsequent egregious misconduct , the requirements of invoking the presumption of prejudice where juror misconductis present is met. Respondenthas not rebutted this presumption. In In re Hitchings, 6 Cal.4th 97 (1993), this Court adopted the view of the United States SupremeCourt of the fundamental importance ofvoirdire: Voir dire examination servesto protect [a criminal defendant’s right to fairtrial] by exposing possible biases, both known and unknown onthepart of potential jurors .. . [t]he necessity of truthful answers by prospective jurors if this process is to Serve its purpose is obvious. Inre Hitchings, 6 Cal.4th at 109, quoting McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554 (1984). Since Juror Ary deliberately failed to answer material questions honestly where truthful responses would have provideda valid basis for a cause challenge - and indeed would have required his disqualification - a new trial is warranted. McDonough Power Equipmentv. Greenwood, 464 U.S. 548, 556 (1984); Pope v. Man-Data, Inc., 209 F.3d 1161, 1163 (9th Cir. 2000). The juror’s misconductcreated a structural defectin the trial, resulting in a miscarriage of justice at both the guilt and penalty phases, requiring reversal of the death sentence. Cal. Const., 40 art. V, VI, VIII, XIV § 13; Arizona v. Fulminante, 499 U.S. 279, 309 (1991); Tumey v. Ohio, 273 U.S. 510, 535 (1927). Ata minimum, the misconduct raises a presumption of prejudice that is not rebutted, but, in fact, underscored by reviewing the juror’s subsequent actions throughout the case. As the Dyer court explained, and is so vividly illustrated here by Juror Ary’s repeated injection of false and/or extrinsic evidence into the deliberations, “how can [a juror] who does not comply with the duty to tell the truth stand in judgment of other people’s veracity? Having committed perjury [the juror] may believe that the witnesses also feel no obligation totell the truth and decide the case based on [the juror’s] prejudices rather than the testimony.” Dyer, 151 F.3d at 983. In most cases ofjuror misconduct, a court must determine whethera juror wasbiased based solely on a juror’s failure to reveal material information during voir dire. In other cases, the court is confronted with a single instance ofjuror misconduct unrelated to voir dire and asked to determine if the misconductis prejudicial. Here, the undisputed facts demonstrate that (1) Juror Ary was undeniably unqualified by law to serve as a juror; (2) Juror Ary failed truthfully to answer numerous material questions about not just his own backgroundbutalso that of his sons; and (3) Juror Ary committed egregious acts of misconduct that conclusively demonstrated his bias againstpetitioner. Juror Ary’s misconduct during deliberations, standing alone, establishes that he was biased against petitioner andis, alone, sufficient to require the reversal ofpetitioner’s conviction and sentence. This Court has explained that to determine whethera verdict will be set aside in the face of a jury receiving extrinsic evidence, the court will “assess the effect of out-of-court information upon the jury” by setting aside the verdict “only if there appears a substantial 4] likelihood ofjuror bias.” People v. Nestler, 16 Cal.4th 561, 578 (1997)citing Jn re Carpenter, 9 Cal.4th 634, 653 (1995). Such bias may appear in two ways, either “when the extraneous material, judged objectively, is so prejudicial in and ofitself that it is inherently and substantially likely to have influenceda juror; or even if the information is not inherently prejudicial if, from the nature of the misconduct and surrounding circumstancesit is substantially likely a juror was actually biased.” People v. Danks, 32 Cal.4th 269, 302 (2004); People v. Nesler, 16 Cal .4th at 579; In re Carpenter, 9 Cal.4th at 653-54. Juror misconduct, such as the receipt of information abouta party or the case that was not part of the legitimately introduced evidence receivedat trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias. People v. Nesler, 16 Cal.4th at 578; People v. Marshall, 50 Cal.3d 907, 949-951 (1990); In re Carpenter, 9 Cal.4th at 650-655. The requirementthat a jury’s verdict “must be based upon the evidence developedat thetrial goes to the fundamentalintegrity of all that is embraced in the constitutional concept oftrial by jury.” People v. Nesler, 16 Cal.4th at 578, quoting Turner v. Louisiana, 379 U.S. 466, 472-473 (1965). As the United States Supreme Court has explained, “due process meansajury capable and willing to decide the case solely on the evidence before it.” People v. Nesler, 16 Cal.4th at 578 quoting Smith v. Phillips, 455 U.S. at 217; quoted in Jn re Carpenter, 9 Cal.4th at 648; accord, Dyer v. Calderon, 151 F.3d at 935; Hughes v. Borg, 898 F.2d 695, 700 (9th Cir. 1990). D. Cumulative Impact of Juror Ary’s Misconduct Petitioner had a constitutional right to a trial by unbiased, impartial jurors. United States Constitution, Amendments VI, XIV; California Constitution, Article I, § 16; People v. Nesler, 16 Cal.4th at 578; Irvin v. Dowd, 366 U.S. 717, 722 (1961); In re Hitchings, 6 Cal.4th at 110. A 42 defendantis entitled to be tried by 12, not 11, impartial and unprejudiced jurors. “Because a defendant charged with a crime hasa right to the unanimousverdict of twelve impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced.” People v. Nesler, 16 Cal.4th at 578, quoting People v. Holloway, 50 Cal.3d 1098, 1112 (1990), disapproved on other grounds in People v. Stansbury, 9 Cal.4th 824, 830 (1995). The undisputed record established pervasive juror misconduct throughout petitioner’s trial. It also conclusively demonstrates Juror Ary’s bias and prejudice toward petitioner was the basis of his motivation for jury service. His failure to reveal his convicted felon status, his multiple lies and omissions during voir dire, the four questions to the court prior to guilt deliberations, his efforts to correct the inadvertent second degree murder verdict, his injection of extrinsic and false information that petitioner committed a prior murder, his use of his concealed jail experiences and thoseofhis sons, his exhortation that the jurors who did not favor the death penalty view a highly inflammatory movie admitted designed to convince them ofthe appropriateness of a death sentence andthe naivety of their views, all demonstrate, individually and collectively, Juror Ary’s actual bias towardspetitioner. It is not a coincidence that the juror who concealed his own felony conviction and told numerouslies in order to become a memberof this jury was the same juror who committed the juror misconduct detailed above. To the extentthat these acts ofjuror misconduct were not disclosed topetitioner, his counsel, or the trial judge duringthetrial, petitioner was also denied his right to counselat critical stages of the proceedings, denied a fair and impartial jury, deniedhis rights to confront and cross-examine witnesses and to present a defense to the evidence against him, and denied his rightto fair, reliable, and non-arbitrary determination of guilt and penalty untainted by 43 extraneous information. United States Constitution, Amendments V, VI, VIII and XIV; California Constitution, Article I, §§ 1, 7, 15, 16, and 17. IV. CONCLUSION Based on the foregoing, petitioner respectfully requests that this Court grant the petition for a writ of habeas corpus. Dated: April 5, 2011 Respectfully submitted, LYNNES. COFFIN Attorney for Petitioner MAURICE BOYETTE 44 DECLARATION OF SERVICE Re: In Re Maurice Boyette No. $032736 I, LynneS. Coffin, declare that I am over 18 years of age, and nota party to the within cause; my business address is 1030 W. Edgeware Rd. Los Angeles, CA 90026. Onthis day, I served true copies of the attached: BRIEF ON THE MERITS on each of the following, addressed (respectively) as follows: Christina vomSaal Maurice Boyette ( hand delivery) Deputy Attorney General H-76600 455 Golden Gate Ave. #11000 San Quentin State Prison San Francisco, CA 94102 San Quentin, CA 94974 Office of the District Attorney Alameda County Superior Court 1225 Fallon St. # 900 1225 Fallon Street, #209 Oakland, CA 94612 Oakland, CA 94612-4293 Each said package was then, on April 7, 2011, sealed and mailed via United States Mail at Mill Valley, California, the county in which I am employed, with the postage thereon fully prepaid. I declare under penalty that the foregoingis true and correct. Executed on April 7, 2011, at Mill Valley, California. Lynne BLHS LynneS. Coffin
