Second-Degree Murder and the Juror Who Tweeted

This post examines an opinion from the California Court ofAppeal – First District, Division 5: People v. Tanubagijo, 2017 WL 526485 (2917).  The court begins the opinion by explaining that a

jury convicted Reginald Tanubagijo of second degree murder [California] (Pen. Code, § 187, subd. (a)) and assault on a child causing death (§ 237ab). Tanubagijo moved for a new trial, arguing a juror committed misconduct by tweeting during trial. The trial court denied the new trial motion and sentenced Tanubagijo to state prison.

Tanubagijo appeals. He contends the court: (1) provided an incorrect response to the jury's question regarding a lesser included offense; and (2) failed to conduct a sufficient inquiry into the juror misconduct.

People v. Tanubagijo, supra.

The Court of Appeal then outlined how, and why, the prosecution arose:

C.B. was born in September 2010. Tanubagijo and his wife, Tammy, were C.B.'s foster parents.2 Before becoming a foster parent, Tanubagijo received training which included specific instructions not to shake a baby, and doing so `could cause brain injury, neck injury, physical damage’ to the baby. At `well baby’ checkups in September and November, C.B.'s pediatricians thought he was doing well and developing normally.

On a November 2010 evening, Tanubagijo and Tammy had neighbors over to visit. C.B. seemed relaxed and happy. The neighbors fed and burped C.B.; nothing seemed out of the ordinary. After their friends left around 8:00 p.m., Tammy put C.B. in a `bouncer’ seat on top of the table so Tanubagijo could feed him. Tammy left the kitchen. Three or four minutes later, Tanubagijo yelled Tammy's name. Tanubagijo approached Tammy, handed her the baby, and told her, `I think he's choking.’ C.B. was limp. Tammy took C.B. to the table, cleared his mouth, and started CPR. C.B. spit up. Tammy continued CPR and Tanubagijo called 911.

Suisun Police Officer Andrew White received a call from dispatch and went to Tanubagijo and Tammy's home. Tanubagijo answered the door. Frantic, he told Officer White the baby `wasn't breathing and was choking on milk.’ The two men went to the kitchen, where C.B. was on the table, limp. Tammy was with the baby; she told Officer White he was choking on milk. C.B.'s eyes were rolling back in his head, a white substance was coming out of his mouth, and he was turning blue. Officer White began CPR. Shortly thereafter, paramedics arrived and brought C.B. to the hospital.

People v. Tanubagijo, supra.

The opinion goes on to explain that when

C.B. arrived at the emergency room, he was `floppy and unresponsive.’ The emergency room doctor noticed C.B.'s pupils were dilated and `not reactive [,]’ and that he had `increased pressure in [his] head.’ A CT scan revealed `devastating’ and `extensive’ brain injury and `bleeding around the brain [.]’ There was `a lot’ of blood, which had collected in the front of C.B.'s brain and `moved all the way back into the posterior part of the head.’ According to the emergency room doctor, the bleeding was `acute,’ meaning it had `happened within a very short[,] very recent period of time.’

C.B. was transferred to Oakland Children's Hospital, where doctors determined he had a `severe brain injury’ and that an operation would not improve his condition. A child abuse pediatrician reviewed the CT scan, which showed extensive bleeding between C.B.'s brain and skull. C.B.'s `entire brain . . . looked abnormal.’ An ophthalmologist and a retinal specialist observed `retinal hemorrhages that were so extensive...that no normal retina was left.’

Laboratory tests indicated no metabolic abnormality—such as a bleeding disorder—that would explain the hemorrhages. The child abuse pediatrician opined the hemorrhages and brain injury were `only consistent with abusive head trauma’ such as a `violent’ or `very severe traumatic shaking event, or a slamming event[.]’ C.B.'s injuries were `not consistent with choking.’ Doctors determined C.B. would not regain consciousness; they removed him from life support and he died.

A medical examiner determined C.B. `succumbed to blunt head trauma, and the manner of death was a homicide.’ The medical examiner believed the hemorrhages in C.B.'s brain and eyes were produced when his brain was `rock[ed] back and forth’ as he was `shaken’ and then `potentially struck.’ C.B.'s injuries were not caused by a fall. The medical examiner explained: `[w]ith a fall if you have impact to the head, you would expect the injury to be localized to that particular place.’ C.B.'s injury `encompass[ed] the entire brain.’

An ophthalmologist examined C.B.'s eyes after the autopsy was performed and discovered `hemorrhages in the retina all the way from the optic nerve from the back of the eye all the way out to where the retina ends[.]’ The optic nerve in both of C.B.'s eyes was also swollen. According to the ophthalmologist, `[a]lmost every time you see that[,] it will be the shaken baby syndrome.’ The ophthalmologist determined C.B.'s hemorrhages were `due to rapid and repeated, not just one or two, but...rapid and repeated acceleration, deceleration forces.’

People v. Tanubagijo, supra.

The court then turns to the investigation of the injuries to C.B., explaining that

Suisun police officers interviewed Tanubagijo twice. In the first interview, Tanubagijo said C.B. choked during a feeding. As Tanubagijo tried to burp C.B., his head `flop[p]ed’ and Tanubagijo called for Tammy. In the second interview, however, Tanubagijo said C.B. fell from the bouncer to the floor, a distance of about three feet, and landed on his head. He denied shaking the baby.

In early December 2010, Tanubagijo attempted suicide. Law enforcement officers found Tanubagijo in his backyard with bloody towels wrapped around his wrists. Inside the house, police officers discovered several letters, some of which stated: `I killed [C.B.]. Tammy is innocent’ and ‘Tell the Judge I did kill [C.B.]’  

People v. Tanubagijo, supra.

The Court of Appeal went on to wrap up its summary of the evidence, and opinions, presented by Tanubagijo’s defense team:

A neuropathologist testified C.B.'s brain injuries could be consistent with an accidental fall. According to the neuropathologist, C.B. had a `preexisting’ condition—`fluid collection with some blood in it over his brain.’ This preexisting condition, combined with a `fall with probable head impact,’ caused C.B.'s injuries. The pathologist who performed the autopsy testified C.B.'s injuries were consistent with falling from a bouncy seat off of a table.

Tanubagijo testified he was feeding C.B. when the bouncer seat `move[d] a little bit to the edge [of the table]. . . . [T]hen the bouncer fell down to the floor[,]’ and landed on C.B. Tanubagijo tried to revive C.B., shaking him four to six times. He did not violently or angrily shake C.B., nor try to hurt the baby. Tanubagijo did not tell anyone C.B. fell off the table because he thought his wife would be angry with him and that he would `be in trouble[.]’ He tried to kill himself because he was `ashamed’ that he was `not a good father,’ and because in his culture, `if someone dies under [your] care,’ you should die. Several character witnesses testified Tanubagijo was a kind and gentle person, and a loving father.

People v. Tanubagijo, supra.

The court ended this section of the opinion by explaining that

[t]he jury convicted Tanubagijo of second degree murder of C.B. ([California Penal Code] § 187, subd. (a)) and assault on C.B. causing death (California Penal Code § 237ab). The trial court denied Tanubagijo's new trial motion and sentenced him to 25 years to life in state prison.

People v. Tanubagijo, supra.

And that brings us to the issue in the case this post focuses on. The opinion goes on to explain that

[o]n July 9, 2014, the jury was seated and sworn, and the judge admonished the jury not to use the Internet to communicate or share information about the case, noting `don't Google. Don't Twitter.’ The People began their case in chief on July 9, 2014. The People completed their case on July 16; the defense began its case on July 17.

The jury began deliberating on July 24, 2014, and deliberated again on July 28 and 29. The jury reached a verdict on July 29. . . .

Tanubagijo moved for a new trial pursuant to section 1181, subdivision (3), arguing P.D. (the Juror) committed misconduct by (1) lying during voir dire about his ability to be impartial; (2) `prejudg[ing] the case’ before the People finished their case in chief; and (3) communicating with non-jurors about the trial via Twitter. According to Tanubagijo, the Juror’s tweets demonstrated his bias against Tanubagijo.

In a supporting declaration, defense investigator T.J. Hicks averred he interviewed the Juror. Hicks showed the Juror various postings to a Twitter account with the Juror's `picture affixed to them.’ The Juror admitted he authored the postings after being sworn as a juror. The Juror also admitted he `was aware that the . . judge presiding over the trial had ordered all jurors, including himself, not to use any social media or post to social media concerning their jury service. He admitted that he had disregarded the court's admonition, qualifying his behavior by stating ‘But I did not say anything about the facts of the case.’

The new trial motion attached 60 postings to the Juror's Twitter account between July 8 and 28, 2014. Many postings concerned quotidian matters such as the Juror's opinion on fashion and music. Some tweets, however, referred to jury duty: on July 8, the day before the jury was sworn, the Juror tweeted, `Are u kidding me? This jury duty shit is NOT for me dude.’ On July 14, toward the end of the People's case-in-chief, the Juror tweeted, `Jury duty lunch break.’ On July 22, on a day when no testimony was heard, he wrote, `Woke up early and knocked out the gym before jury duty bout to spark one, throw in a load of laundry, and tidy up the kitchen.’ On July 23, the last day of the defense case, the Juror tweeted, `Jury duty needs to be on its Ps & Qs today. I need to go get this phone together and the gym is calling me.’

On July 24, 2014, the prosecutor gave closing argument. During the lunch break, the Juror wrote, `I know this jury is not gonna want to deliberate with me while I have an attitude so they have about 2.2 to get this shit TOGETHER.’ On July 28, just before deliberations began, the Juror tweeted, `Deliberation starts today. I wish I could record it cuz this shit is about to be crazy lol’ and `In a room with 11 other strongly opinionated people trying to all agree on a verdict? yea right.’ The new trial motion, however, was premised almost entirely on the following tweet from July 16, the last day of the prosecution's case-in-chief: `In my book, everybody's guilty until proven innocent. And by the looks of it, both of you niggas are facing life.’

In opposition, the prosecution argued Hicks's declaration was inadmissible hearsay. The People also claimed there was no evidence the Juror `had a bias of any kind that affected his verdict in this case. The statement [regarding the burden of proof] is not factually close to this case and there is no context as to what the [J]uror was referencing, so it is pure speculation that this juror was even referencing’ Tanubagijo's trial.

People v. Tanubagijo, supra.

The trial judge held a hearing on Tanubagijo’s motion for a new trial and

had the Juror sworn as a witness. The court explained: `I've had you brought in and sworn in because I need to—I need to ask you some questions. . . .[¶] The defense has filed a motion requesting a new trial alleging that you have committed something called juror misconduct. And so—what they've done is they've submitted a declaration from an investigator named T.J. Hicks. . . .’ The court read the Juror the declaration and asked him, `is Mr. T.J. Hicks correct? Is all of that correct?’ The Juror responded, `Yes’ and the following colloquy occurred:

`THE COURT: So I do agree with you, that you did not say anything about the facts of the case from all of the Twitter that I've seen. But there is one — how old are you?

`[THE JUROR]: I'm 24.

`THE COURT: There is one actual tweet that concerns me, and let me find it. [¶] It's a Tweet that was — and I'm not sure if this is the actual time and date, but it lists a tweet on July 16th of 2014 at 11:12 a.m. And I'm going to let you read it first, and then I'm going to read it into the record.

`[THE JUROR]: Yeah.

`THE COURT: So—and that one is, quote, “In my book, everyone's guilty until proven innocent. And by the looks of it, both you niggas are facing life.” [¶] So when I read that, my first thought was perhaps you were talking about some other case, because my recollection was there was only one defendant in this case.

`[THE JUROR]: Correct.

`THE COURT: So what can you tell me about this tweet? Does it have anything to do with this case?

`[THE JUROR]: Not at all, sir.

`THE COURT: What does it have to do with?

`[THE JUROR]: It's a subliminal message to my significant other, at the time, of a friend of mine.

`THE COURT: Okay. Thank you. Now I want to break it down. So you're talking about something else?

“[THE JUROR]: Uh–huh.

`THE COURT: But what also concerns me is this—I'm going to talk about the first sentence. [¶] All right?

`[THE JUROR]: Uh–huh.

`THE COURT: Let me show it to you, so you know what we're talking about. [¶] The first sentence says, ‘In my book, everyone is guilty until proven innocent.’ And I remember in this case—well, in most cases, actually, all of these ones that I do, that I start the case in the voir dire. I talk about how everyone's cloaked in the presumption of innocence, and the People have to prove someone's guilty beyond a reasonable doubt. Otherwise, they get a not guilty. And I think all of the jurors agreed to do that, and—so did you in—did you follow my instructions in this case? Did you keep an open mind in this case?

`[THE JUROR]: I did, sir.

`THE COURT: Did you wait until all of the evidence was in, and I instructed you before you—did you deliberate with 11 other people back there?

`[THE JUROR]: Yes, I did.

`THE COURT: And did you all discuss the case and decide the case based on the evidence?

`[THE JUROR]: Yes, sir.

`THE COURT: Did you . . .pre-judge Mr. Tanubagijo at all?

`[THE JUROR]: No, sir.

`THE COURT: All right. All right. [¶] Thank you, sir. Again, I tell jurors not to do this stuff to protect them.’ The court excused the Juror.

People v. Tanubagijo, supra.

The opinion then goes on to explain how the judge resolved the issue:

Defense counsel argued the Juror `tweeted from the jury box as a seated juror’ and that he was likely `under the influence of cannabis during this trial [.]’ The court denied the new trial motion. It determined Hicks's declaration was admissible and that the Juror `violated the Court's orders not to tweet and comment about the case. [¶] [He] did not talk about the facts. He talked about a lot of extemporaneous different things. He talked about things not really relevant to this issue. In the Court's opinion, the only tweet that was potentially prejudicial is the one tweet on July 16th concerning the presumption of innocence. And, again, it's the. . . tweet about—talking about two people.’

The court continued, `in my questioning of him, he said that tweet had nothing to do with this case. It was about friends of his that he was talking about, not Mr. Tanubagijo, which sort of makes sense, since he's talking about two people and there was only one defendant in this case. And so I don't find that the facts necessarily establish misconduct. And then, again, looking at it even more closely, just dissecting that sentence that he's talking about other people about, just, in my book, everyone's proven—“everyone's guilty until proven innocent,” he claims that although that might be what he said, he followed the law in this case. He applied the presumption of innocence in the case. He waited until the end before . . .voting on Mr. Tanubagijo's case. So I don't find that even if his misconduct that he's tweeting about the case, the tweets are—I don't find—even if that is misconduct, I don't find it misconduct that's prejudicial, which would warrant the granting of a motion for a new trial.’

People v. Tanubagijo, supra.

For these and other reasons, the judge denied the motion for a new trial and affirmed Tanubagijo’s conviction. People v. Tanubagijo, supra.