Bigelow

Petitioner, Jerry D. Bigelow, was tried for murder, robbery and kidnapping. The jury convicted him of robbery and kidnapping, but the following bizarre circumstances resulted in a mistrial on the murder charge: The jury had first submitted a verdict which acquitted Bigelow of murder, but found that the charged special circumstances existed. While the trial court and counsel attempted, over a period of one and one-half days, to resolve the inconsistency, one of the jurors changed his or her mind. Accordingly the jury then stood deadlocked 11-1 on the murder count and the court declared a mistrial. Bigelow seeks a writ of mandate to compel the trial court to enter judgment of acquittal on the original verdict. We will issue the writ because we believe that the trial court exceeded its authority in its control of the jury process; fundamental statutory and constitutional principles require that we give effect to the jury’s attempted acquittal.

Bigelow was previously convicted of felony murder. The California Supreme Court reversed that conviction as a farce and a sham because he was tried and given the death penalty without counsel. (People v. Bigelow (1984) 37 Cal.3d 731,…

I concur in the judgment but respectfully disagree with the majority’s characterization of the trial court’s conduct with respect to the jury.

In my view there is inadequate record support for the majority’s conclusion that the trial court may have coerced reconsideration of the verdict and that it directed continued deliberation without giving the jury guidance. The record indicates instead, that after lengthy discussion with counsel and thorough evaluation of this difficult problem, the trial court chose what was then a manifestly reasonable solution. It gave the jury a new form of verdict which, unlike the initial form, clearly explained that the jury should not determine the question of special circumstances upon deciding to acquit on the charge of murder. The court thus gave the jury the opportunity and means to itself purge the verdict of the inconsistent findings.

The court’s well-intentioned plan unfortunately went awry when a juror appeared to reconsider his vote, leading the court to declare a mistrial. We now conclude, in light of Penal Code section 1161, that the trial court should earlier have accepted and recorded the jury’s verdict. That conclusion, however,…

John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney General, Martin S. Kaye and Ronald S. Matthias, Deputy Attorneys General, for Real Parties in Interest.

OPINION

BRAUER, J.

Petitioner, Jerry D. Bigelow, was tried for murder, robbery and kidnapping. The jury convicted him of robbery and kidnapping, but the following bizarre circumstances resulted in a mistrial on the murder charge: The jury had first submitted a verdict which acquitted Bigelow of murder, but found that the charged special circumstances existed. While the trial court and counsel attempted, over a period of one and one-half days, to resolve the inconsistency, one of the jurors changed his or her mind. Accordingly the jury then stood deadlocked 11-1 on the murder count and the court declared a mistrial. Bigelow seeks a writ of mandate to compel the trial court to enter judgment of acquittal on the original verdict. We will issue the writ because we believe that the trial court exceeded its authority in its control of the jury process; fundamental statutory and constitutional principles require that we give effect to the jury's attempted…