| People v Johnson |
| 2010 NY Slip Op 04646 [74 AD3d 427] |
| June 1, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v SteveJohnson, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Susan Alexrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (Maxwell T. Wiley, J.), rendered March 21,2007, convicting defendant, after a jury trial, of attempted murder in the second degree as a hatecrime, two counts of attempted murder in the second degree, assault in the first degree as a hatecrime, three counts of assault in the first degree, 15 counts each of kidnapping in the seconddegree as a hate crime and kidnapping in the second degree, five counts each of assault in thesecond degree as a hate crime and of assault in the second degree, and three counts each ofcriminal possession of a weapon in the second and third degrees, and sentencing him, as secondviolent felony offender, to an aggregate term of 240 years, affirmed.
In its main charge on the insanity defense, and in its response to notes from the deliberatingjury, the court properly read the Criminal Jury Instructions pattern charge on that subject(CJI2d[NY] Insanity), and in each instance, properly declined to add language instructing thejury to consider defendant's capacity to know or appreciate the wrongfulness of his conduct froma subjective point of view relating to the false beliefs he allegedly held as a result of psychiatricillness. The standard language permitted the jury to accept defendant's insanity defense under thetheory that his asserted thought disorder caused him to sincerely believe society would approveof his otherwise immoral acts because they were divinely commanded. The court was notobligated to add specific language to that effect, or to give any special instructions concerning afalse belief that one's actions were in obedience to divine instructions (see People vWood, 12 NY2d 69, 76 [1962]; cf. People v Adams, 26 NY2d 129, 135-136 [1970],cert denied 399 US 931 [1970]). We also conclude that the supplemental instructionswere meaningful responses to the jury's notes (see People v Almodovar, 62 NY2d 126,131-132 [1984]; People v Malloy, 55 NY2d 296, 301-302 [1982], cert denied459 US 847 [1982]). In any event, we note there was ample evidence from which the jury couldconclude that defendant did not, in fact, have any delusions or hallucinations about beingdivinely commanded to commit his criminal acts.
The court properly denied defendant's challenge for cause to a prospective juror, who,notwithstanding her self-professed "strong opinions" on the insanity defense based on researchshe had conducted on the defense while in college, declared that she could follow the court'sinstructions and be fair.[*2]
It is axiomatic that where potential jurors question ordoubt that they can be fair, the court should either elicit unequivocal assurances of their ability tobe impartial or excuse them (cf. People v Bludson, 97 NY2d 644, 646 [2001]; Peoplev Johnson, 94 NY2d 600, 615 [2000]). "By contrast, where prospective jurorsunambiguously state that, despite preexisting opinions that might indicate bias, they will decidethe case impartially and based on the evidence, the trial court has discretion to deny thechallenge for cause if it determines that the juror's promise to be impartial is credible"(People v Arnold, 96 NY2d 358, 363 [2001]).
The Court of Appeals has established a commonsense rule regarding evaluation of potentialjuror bias, recognizing that "most if not all jurors bring some predispositions, of varyingintensity, when they enter the jury box. It is only when it is shown that there is a substantial riskthat such predispositions will affect the ability of the particular juror to discharge hisresponsibilities (a determination committed largely to judgment of the Trial Judge with hispeculiar opportunities to make a fair evaluation) that his excuse is warranted" (People vWilliams, 63 NY2d 882, 885 [1984]).
People v Arnold (supra), relied on by the dissent, is not to the contrary. Thedefendant in Arnold was accused of stabbing his former girlfriend. He asserted ajustification defense, alleging that she initiated the incident by attacking him with a razor.During voir dire, one prospective juror, who held a bachelor's degree with a major in sociologyand a minor in women's studies, stated that she had done "a lot of research" (96 NY2d at 360) ondomestic violence and battered woman's syndrome. When asked by defense counsel if she feltthis would make her "another witness in the case, an expert if you will, on that area with theother jurors" creating "a problem" during deliberations, the prospective juror answered, "I thinkso." (Id. at 360-361.) When defense counsel then asked if she would rather serve as ajuror on another type of case, she responded, "I think I would." (Id. at 361.)
Defense counsel's challenge for cause in Arnold was denied without further inquiryof the prospective juror. The Appellate Division reversed, holding that once a prospective jurorvoices doubt about her impartiality or ability to refrain from becoming a witness or expert in thejury room, "it was incumbent upon the court to ascertain that her prior state of mind would notinfluence her verdict and that she would render an impartial verdict based on the evidence" (272AD2d 857, 858 [2000]). In affirming, the Court of Appeals acknowledged that while "each jurorinevitably brings to the jury room a lifetime of experience that will necessarily inform herassessment of the witnesses and the evidence," when a juror reveals doubt about her ability toserve impartially because of that experience, that juror "must clearly express that any priorexperiences or opinions that reveal the potential for bias will not prevent them from reaching animpartial verdict" (96 NY2d at 362).
Here, the prospective juror unequivocally stated in the initial voir dire that she could followthe court's instructions on the law. Unlike Arnold, the court here did conduct follow upquestioning of the prospective juror and also permitted the prosecutor and defense counsel tomake additional inquiries regarding her opinions, her ability to be fair to both sides and hercommitment to render a verdict based solely on the evidence adduced at trial. During thatindividual questioning by the attorneys and the court, she again unequivocally stated that despiteher prior experiences, biases and strong opinions, she could follow the court's instructions andapply them to the evidence in the case, whether she agreed with them or not. The fact that someof her responses were couched in terms such as "think" or "try" does not make her otherwiseunequivocal answers less so (see Peoplev Shulman, 6 NY3d 1, 28 [2005], cert denied 547 US [*3]1043 [2006]; see also People v Rivera, 33 AD3d 303 [2006], affd 9NY3d 904 [2007]).
The prospective juror's responses, taken in context and viewed as a whole, did not cast doubton her ability to reach a fair and impartial verdict (see People v Chambers, 97 NY2d 417[2002]; Arnold, 96 NY2d at 363).
Defendant's claim under People v Rosario (9 NY2d 286 [1961], cert denied368 US 866 [1961]) does not warrant reversal. The documents at issue did not qualify asRosario material, and in any event, defendant was not prejudiced by their nondisclosure(see CPL 240.75).
We have considered and rejected defendant's remaining claims. Concur—Mazzarelli,J.P., Sweeny, Renwick and RomÁn, JJ.
Freedman, J., dissents in a memorandum as follows: I believe that pursuant to the Court ofAppeals holding in People v Arnold (96 NY2d 358 [2001]), reversal is mandatedbecause of the trial court's failure to grant defendant's challenge for cause for prospective jurornumber 6.
Defendant's first trial resulted in a mistrial when the jury was unable to reach a verdict. Onhis retrial, defendant was convicted of 53 counts, including attempted murder in the seconddegree and assault in the first degree, both as hate crimes, and was acquitted of attempted murderin the first degree. The only defense raised was that defendant was not responsible by reason ofmental disease when he committed the criminal acts. The psychiatrist called by the People foundthat defendant was legally sane when he acted, but other examining psychiatrists founddefendant to be seriously delusional and/or insane.
During the voir dire, the court asked the prospective juror, an in-house lawyer for acompany, if "you would be able to follow my legal instructions, whether or not they rang a bellor agreed with something you have studied already." She responded: "I would say yes, but Ithink that I should disclose that when I was in college, I did a psychiatric internship at John[s]Hopkins, and I wrote a thesis paper that examined whether or not the insanity defense should beabolished." The prospective juror added that she had taken a position in her paper, but "I thinkthat I could listen and apply your instructions." When the prosecutor asked the prospective jurorwhether her opinions about the insanity defense would prevent her from reaching a verdict, shereplied that "I would like to think I could follow the judge's instructions, but I have very strongopinions, and I think my experience with research of the insanity defense and their successesover the years, I don't know." She added, "I don't know if I can ignore my prior experiences."
Defense counsel challenged the prospective juror for cause, arguing that she did not know ifthe prospective juror could be fair, given her strong opinions, and that she posed a danger ofbecoming an expert in the jury room. The court agreed to question the prospective juror further.
During the follow-up questioning, the prospective juror first indicated that she could applythe judge's definition of lack of capacity and follow his jury instructions, whether or not sheagreed with them. However, on further questioning by defense counsel, the prospective juror[*4]stated that "I have very strong opinions of what constitutes amental defect or mental illness that would make someone be found not guilty for their actions."She added that "As a lawyer, I would like to think I could listen to the judge," but "to be fair, Ifeel like I come in here with a strong bias."
When the prosecutor questioned the prospective juror, she stated: "I can apply the law, but Ifind that listening to the evidence—you have to interpret the law and apply the law to theway you interpret the evidence, and I feel I might be biased in the way that I interpret theevidence." When the prosecutor then queried, "So, you can't give both sides a fair trial?" sheresponded, "I'd like to try, but I don't know if I would be the best person to do that."[FN*]
Thereafter, the court denied the challenge for cause, forcing defense counsel to exercise aperemptory challenge to remove the prospective juror. Before exercising the challenge, defensecounsel noted for the record that the prospective juror had indicated she was coming to the casewith a bias that would affect how she would listen to and evaluate the evidence. Thereafter,defendant exhausted all of his remaining challenges during the voir dire.
In People v Arnold, a case involving domestic violence, the Court of Appealssustained reversal of a conviction where the trial court had denied the defendant's challenge forcause of a prospective juror who during voir dire had stated that while in college, she hadresearched the subjects of domestic violence and battered women's syndrome, and that herbackground might be "a problem." (96 NY2d at 361.) The prospective juror did not say shewould not listen to the law or would be unfair. When the court asked the panel of prospectivejurors whether they could follow the law as instructed and whether they agreed that they wouldnot use this case as a "referendum" on "crime, domestic abuse or violence in the streets," theprospective juror answered "yes." (Id.) As in this case, the defense counsel inArnold peremptorily challenged the prospective juror after the court denied a for-causechallenge, and then exhausted remaining challenges before a jury was selected.
In Arnold, the Court of Appeals noted that CPL 270.20 (1) (b) permits a juror to bechallenged for cause if that juror "has a state of mind that is likely to preclude him fromrendering an impartial verdict based upon the evidence adduced at trial." (96 NY2d at 362.) TheCourt held that "a juror who has revealed doubt, because of prior knowledge or opinion, abouther ability to serve impartially must be excused unless the juror states unequivocally on therecord that she can be fair" (96 NY2d at 362). The Court added, "If there is any doubt about aprospective juror's impartiality, trial courts should err on the side of excusing the juror, since atworst the court will have 'replaced one impartial juror with another' " (id., quotingPeople v Culhane, 33 NY2d 90, 108 n 3 [1973]; see also People v Johnson, 94NY2d 600 [2000]). The Court concluded that "[p]rospective jurors who make statements thatcast serious doubt on their ability to render an impartial verdict, and who have givenless-than-unequivocal assurances of impartiality, must be excused" (96 NY2d at 363).
While the prospective juror in this case indicated that she would try to follow the judge'sinstructions and never said that she could not be fair, she twice stated that because of her [*5]extensive research into the insanity defense she was biased abouthow it should be applied, and that she felt her background would affect her interpretation of thelaw. Contrary to the majority, I find that in the context of the whole record, the prospectivejuror's self-acknowledged bias about the insanity defense, which was critical to defendant's case,was not the unequivocal assurance of impartiality to which defendant was entitled. Accordingly,the trial court should have granted the challenge for cause.
Footnote *: This sentence is from acorrected copy of the settled transcript.