Saturday, September 12, 1998

Attorney says city
prosecutor’s TV comments
caused jurors to convict

Myles Breiner seeks a mistrial
although the comments were about
an unrelated case

By Susan Kreifels


A television appearance by city Prosecutor Peter Carlisle may have made him a "human dictionary" used in a jury's deliberation, and that could lead to the mistrial of convicted murderer James C. Kendrick.

Defense attorney Myles Breiner filed a motion to set aside Kendrick's murder verdict based on juror misconduct.

Kendrick, 50, was found guilty of shooting to death his 21-year-old Slovakian wife on Nov. 4, 1995, at their Marco Polo condominium.

Breiner had argued that Kendrick suffered from emotional distress and hadn't fired the gun he held near Nika Hulejova's head, but that the weapon accidentally discharged when his wife brought her hands back. Breiner had asked that his client be given the lesser charge of manslaughter, saying Kendrick hadn't intended to kill her.

But Deputy Prosecutor Randy Oyama said during the trial that Kendrick had intentionally shot his wife.

Jurors, all but one of whom answered questions Thursday and yesterday before Circuit Judge Michael Town, said they had been confused about the term "knowingly" as it related to conduct and the charge of murder and they had gone home deadlocked.

The next morning, jury forewoman Sharon Makuakane told her fellow panel members she had seen Carlisle on TV speaking about what he believed constituted murder in another case. The case involved a 16-year-old girl who, according to her attorney, grabbed a gun that went off accidentally and killed a woman.

Juror Gus Harper said he saw the program, as well.

Several hours later the jury convicted Kendrick.

Breiner argued that what Carlisle said on television should not have been discussed in deliberations and that some jurors indicated it affected the decision-making that broke the jury's deadlock.

In another state case, a mistrial was declared after jurors used a dictionary to define legal terms.

In listening to arguments, Town said the question arose if Carlisle might have been used as a "human dictionary" in deliberations.

Oyama said Carlisle did not define "intentionally" or "knowingly" on TV and that jurors had different opinions about whether the discussion about Carlisle occurred before or during actual deliberations.

Oyama also said jurors are allowed to use hypothetical situations to help them reach a decision.

"The facts of the case are the most important thing," Oyama said.

Oyama said the motion for a mistrial stemmed from a conversation Breiner had with alternate juror Dudley Dennison.

Dennison said Thursday that Harper had told him before deliberations started that he felt the defendant was guilty. Dennison said Harper "jokingly threatened me with a black eye if I told anyone."

Oyama said Harper denied making such a threat, and that should have ended the controversy.

He accused Breiner of going on a "fishing expedition" to search out possible jury misconduct by hiring a private investigator to question jurors.

Breiner said he had done nothing inappropriate.

Town gave Oyama two weeks to file papers and Breiner further time to respond.

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