Convicted elderly musician seeking new trial

ESCONDIDO — A 70-year-old man convicted of shooting his two roommates, killing one of them, filed a motion May 13 for a new trial based in part on juror misconduct.
In court documents, Octavian Crishan’s attorney, John Cotsirilos, said two of the jurors in the case have given sworn affidavits about their perceived misconduct during the deliberations by the jury foreperson.
The two women, Anne Chute-Jacobs and Victoria Davis, stated in their declarations the foreperson encouraged dissenting jurors to speculate about what a mistrial could mean for Crishan’s financial ability to maintain private counsel in a second trial and the likelihood that the next trial could result in a murder conviction, instead of the lesser included charge of voluntary manslaughter that the panel was opting for.
“If the jury foreman had not introduced the topic of penalty, a hung jury on both counts would have been the likely result of the deliberation, rather than verdicts wrongly believed to have saved Crishan from a life sentence,” Cotsirilos wrote. “The result of the improper consideration during deliberations was obviously the cause of jurors crying at the time the verdict was rendered.”
Chute-Jacobs and Davis said the foreperson had told a story with circumstances similar to Crishan’s case in which the defendant couldn’t afford a private attorney for a retrial and was acquitted. They said the foreperson’s statement affected their decision to convict Crishan.
Last February, jurors deliberated for nearly two days before finding Crishan guilty of voluntary manslaughter for the murder of his longtime friend Herman Wiesemeyer. The panel of six men and six women also found Crishan guilty of the attempted murder of Matthew Vivian in Wiesemeyer’s Escondido home on Parktree Lane on April 18, 2007. Both Vivian and Crishan rented rooms from Wiesemeyer.
During the two-week hearing, prosecutors alleged Crishan, a former concert violinist and Las Vegas band leader, shot Wiesemeyer, 67, at close range around midnight with a Beretta semi-automatic pistol and left his body lying on the dining room floor. When Vivian, a registered nurse in his mid-40s, arrived home from work around 8 a.m., he noticed Wiesemeyer lying on the floor and went to his aid. That is when prosecutors said Crishan appeared from the shadows and shot Vivian point-blank in the face.
In the prosecution’s response to Crishan’s motion, Deputy District Attorney Brendan McHugh refuted the defense’s accusations that any misconduct or prejudice occurred during the deliberations.
“The foreperson essentially urged jurors to deliberate and come to a verdict,” McHugh wrote. “We are not accusing the defense counsel of any misconduct; however, we are absolutely informing the court that we are dealing with two jurors who have been grimly determined to undermine this verdict.”
McHugh also contested the defense’s other motion that the verdicts should be modified because the evidence presented at the trial was insufficient.
Cotsirilos wrote that Crishan was a victim of elder abuse at the hands of Wiesemeyer and Vivian and on the night of the incident he feared for his life after he and Wiesemeyer got into an altercation. Additionally, Cotsirilos stated evidence presented by doctors at the trial revealed that Crishan, due to severe brain damage, did not have the mental state required for the crime of attempted premeditated murder.
However, McHugh pointed out that in addition to Crishan hiding in the shadows with a handgun, police also discovered a light in that area was unplugged and another loaded firearm was placed across the room.
In 2005, Wiesemeyer was arrested for domestic violence against his former wife; he pleaded guilty to disturbing the peace, court documents show. Vivian was convicted in 1996 of a misdemeanor charge stemming from striking his son, according to court documents.
Superior Court Judge Joel Pressman, who presided over the trial, is scheduled to rule on the defense’s motions May 29. If Pressman denies the motion, Crishan could be sentenced at that time. He faces seven years to life in prison.


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