| People v Warrington |
| 2015 NY Slip Op 06380 [130 AD3d 1368] |
| July 30, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vBrandon Warrington, Appellant. |
Paul J. Connolly, Delmar, for appellant, and appellant pro se.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Warren County (HallJr., J.), rendered July 11, 2013, upon a verdict convicting defendant of the crimes ofmurder in the second degree, manslaughter in the second degree and endangering thewelfare of a child.
Defendant was indicted on charges of murder in the second degree, manslaughter inthe second degree and endangering the welfare of a child, all of which related to thedeath of the five-year-old son of defendant's paramour. Following a jury trial, defendantwas convicted as charged and sentenced to an aggregate prison term of 25 years to life.Defendant appeals, and we reverse.
County Court committed reversible error in denying defendant's motion to dismissprospective juror No. 383 for cause.[FN1] Once a prospective juror has identifiedhis or her own biased perspective, he or she "must expressly state that his [or her] priorstate of mind concerning either the case or either of the parties will not influence his [orher] verdict, and he [or she] must also state that he [or she] will render an impartialverdict based solely on the evidence" (People v [*2]Biondo, 41 NY2d 483, 485 [1977], cert denied434 US 928 [1977]; accordPeople v Ortiz, 37 AD3d 361, 362 [2007]; see People v McGuire, 101 AD3d 1386, 1389 [2012]; People v Wilson, 7 AD3d549, 550 [2004]). "[N]othing less than a personal, unequivocal assurance ofimpartiality can cure a juror's prior indication that [he or] she is predisposed against aparticular defendant or particular type of case" (People v Arnold, 96 NY2d 358,364 [2001]), and, accordingly, the "bright-line standard . . . followedthroughout the State" is "that a prospective juror who expresses partiality towards [oneparty] and cannot unequivocally promise to set aside this bias should be removed forcause" (People v Johnson, 94 NY2d 600, 614 [2000] [internal quotation marksand citation omitted]).
Turning to the record, in response to defense counsel's question, "Does anyone. . . feel . . . that they cannot be fair in this trial?," juror No. 383volunteered, "It's a five year old [victim.] Adult [defendant]. I can't do it."[FN2] Neither defense counselnor County Court asked juror No. 383 any follow-up questions on that topic at that pointin time. Later, defense counsel asked the jurors whether they could agree that "[t]heburden is for the People to prove beyond a reasonable doubt that [defendant] did it," andjuror No. 383, collectively with all of the other prospective jurors, agreed. However,when defense counsel specifically asked juror No. 383 whether she would "have aproblem finding . . . defendant not guilty if [the People did not] meet theirburden," juror No. 383 responded, "I don't know." Later, the court directly addressedjuror No. 383:
"THE COURT: . . . If the [People are] able to prove their case beyond areasonable doubt, what would your fair and impartial verdict be?
"PROSPECTIVE JUROR NO. 383: Guilty if they prove it guilty.
"THE COURT: Okay. Now, let's say they bring in lots and lots of witnesses, lots ofevidence, lots of DNA, lots of pictures and whatever, but you're not convinced beyond areasonable doubt. Let's say you're pretty sure, I think maybe he did it but I have areasonable doubt about this, then what does your verdict have to be?
"PROSPECTIVE JUROR NO. 383: I would have to say not guilty, you know, if theycan't do it to my satisfaction.
"THE COURT: Yes, exactly, and that's exactly the way it has to [*3]be. It's all up to your satisfaction. It has to be provedbeyond a reasonable doubt as you see that and as I tell you what the law is. Would youhave any problem with saying that the defendant is not guilty if they don't prove theircase?
"PROSPECTIVE JUROR NO. 383: No, if [the prosecutor] doesn't have it, if shecan't prove it.
"THE COURT: All right. That's good."
Finally, the court turned to the issue of whether juror No. 383 would be able tofollow the law regarding crediting witnesses:
"THE COURT: . . . Would you follow the law at the end of the case andlisten to what they have to say if somebody, if you think somebody lied about something,you don't have to believe anything they say. On the other hand, you don't have to notbelieve anything they say. You can believe the parts you think are true but not believe theparts you think are not?
"PROSPECTIVE JUROR NO. 383: I was just going to say I'll listen to what theyhave to say and then I'll draw my own conclusion.
"THE COURT: Okay. Then you'll follow the law as I instruct at the end of thecase[?]
"PROSPECTIVE JUROR NO. 383: Yes."
Considering the entirety of the questions posed to juror No. 383 and her responses,juror No. 383 unambiguously acknowledged a form of bias—based on therespective ages of the victim and defendant—that she identified as preventing herfrom being a fair and impartial juror. After juror No. 383 identified her own bias, shewas never asked a question that referenced whether she could set aside any biases sheheld, generally, or whether she could set aside her specific bias regarding the respectiveages of defendant and the victim. Further, in her responses to questions posed to her,juror No. 383 never specifically made reference to the age issue after she identified it aspreventing her from being fair and impartial, and she never agreed, more generally, thatshe could set aside any bias that she held and decide the case in a fair and impartialmanner based on the evidence presented. Therefore, juror No. 383 did not"unambiguously state that, despite preexisting opinions that might indicate bias, [shewould] decide the case impartially and based on the evidence," because she never madeany statement regarding her preexisting opinion, let alone an unambiguous statement thatshe could set such opinion aside (People v Arnold, 96 NY2d at 363).[FN3] Accordingly, CountyCourt committed [*4]reversible error in denyingdefendant's for-cause challenge to a juror who never contradicted or retracted herstatement that her bias related to the respective ages of defendant and the victimprevented her from being a fair and impartial juror (see People v Harris, 19 NY3d 679, 685-686 [2012]; People v Johnson, 17 NY3d752, 753 [2011]; People v Nicholas, 98 NY2d 749, 751-752 [2002];People v Arnold, 96 NY2d at 363; People v Torpey, 63 NY2d 361, 369[1984]; People v Blyden, 55 NY2d 73, 78 [1982]; People v McGuire, 101AD3d at 1389; People vCarpenter, 35 AD3d 1092, 1093 [2006]; People v McLean, 24 AD3d 1110, 1111 [2005]; compare People v Brown, 121AD3d 556, 557 [2014], lv denied 25 NY3d 949 [2015]; People vSoto, 235 AD2d 349, 349 [1997], lv denied 90 NY2d 898 [1997]).[FN4]
Finally, defendant's contentions that the verdict was based on legally insufficientevidence, that it was against the weight of the evidence and that he was convicted of aninclusory concurrent count are without merit. Defendant's remaining contentions areeither meritless or rendered academic by this decision.
Egan Jr. and Clark, JJ., concur.
Devine, J. (dissenting). I do not agree with my colleagues that the facts of this caserequired County Court to excuse prospective juror No. 383 for cause and, as such, Idissent.
We are in agreement that the judgment of conviction was supported in all respects bythe trial evidence, and I wish to detail some of that evidence in order to illuminate theemotional quagmire that the jurors were forced to enter in order to render a verdict.Physical examinations of the five-year-old victim revealed that bruising, abrasions andother injuries covered his body, and the trial record is replete with proof that thoseinjuries were the result of vicious abuse inflicted by defendant. Among the punishmentsobserved by defendant's paramour was one on November 11, 2012, when she sawdefendant pick up the victim by the neck and repeatedly slam his head against a wall. Thefatal injuries similarly stemmed from blunt force trauma to the head, which led to brainswelling, subdural hematoma and cell death. The medical evidence indicated that theseinjuries could only have been caused by the type of severe force that would beencountered in a heavy blow, a fall from a great height or an automobile accident.Several physicians further opined that the killing trauma must have occurred in the hoursbefore the victim became unresponsive on the morning of November 15, 2012.
In that regard, defendant was very angry with the victim the night before his death.Defendant's paramour awoke around 2:30 a.m. on November 15, 2012 to find defendantmissing from their bedroom, and he failed to offer a persuasive explanation for hisabsence when he returned to bed. The victim was unsteady, pale and disoriented whendefendant woke him up the next morning, and defendant had to guide him to thebathroom. Defendant was entirely unconcerned by these signs of distress, insteadslamming the victim on the floor and screaming that he should be able to use thebathroom on his own. Despite the fact that the victim lost [*5]consciousness shortly afterwards, defendant forbade hisparamour from calling 911 until after he left for an appointment, and he wrote down acover story for her to relate to the authorities. She eventually summoned assistance at9:30 a.m. and reported that the victim had hit his head after jumping on his bed, althoughshe recanted that story in her trial testimony. The victim died shortly thereafter.
With that backdrop in mind, I turn to voir dire. Defense counsel acknowledged theemotional nature of the case, and asked the prospective jurors whether they would be sobothered by the fact that the victim was five years old that they would "close theirmind[s] . . . to the evidence." One of the prospective jurors indicated that,although she had not predetermined the guilt of defendant, she would have a difficulttime being fair "if it ever got to that point." Defense counsel then questioned the othervenirepersons as to whether they felt that they could be fair, at which point juror No. 383said that she could not "do it" given that an adult had allegedly attacked such a youngvictim. Juror No. 383 then agreed with defense counsel that the burden rested with thePeople to prove that defendant was guilty despite the case being an "emotional" oneinvolving a victimized child, and indicated that she had no problem with that. She wenton to state, however, that she did not know if she would have difficulty acquittingdefendant if the People failed to meet their burden of proof.
There is no question that these responses, from juror No. 383 and others, obligedCounty Court to obtain "unequivocal" assurances from any prospective juror whoexpressed concerns about his or her ability to be fair "that his [or her] prior state of mindconcerning either the case or either of the parties will not influence his [or her] verdict,and . . . that he [or she] will render an impartial verdict based solely on theevidence" (People v Biondo, 41 NY2d 483, 485 [1977], cert denied 434US 928 [1977]; see People v Johnson, 94 NY2d 600, 612 [2000]; People vBlyden, 55 NY2d 73, 78 [1982]). County Court endeavored to do so, beginning bytelling the prospective jurors that "[o]bviously nobody wants to hear a case about a deathof a five year old but because it's a five year old doesn't mean that anybody is guilty ofit," and that "everybody" has been wrongfully accused of having done something at onepoint or another in their lives. County Court then reiterated that the People would have toprove their case beyond a reasonable doubt, and questioned one prospective juror as towhether he could be fair and impartial in light of those principles. That prospective jurorindicated that he could not be, prompting County Court to turn to juror No. 383 andquestion her individually as follows:
"THE COURT: . . . [S]ame questions for you. If the [People are] able toprove their case beyond a reasonable doubt, what would your fair and impartial verdictbe?
"PROSPECTIVE JUROR NO. 383: Guilty if they prove it guilty.
"THE COURT: Okay. Now, let's say they bring in lots and lots of witnesses, lots ofevidence, lots of DNA, lots of pictures and whatever, but you're not convinced beyond areasonable doubt. Let's say you're pretty sure, I think maybe he did it but I have areasonable doubt about this, then what does your verdict have to be?
"PROSPECTIVE JUROR NO. 383: I would have to say not guilty, you know, if theycan't do it to my satisfaction.
"THE COURT: Yes, exactly, and that's exactly the way it has to be. It's all up to yoursatisfaction. It has to be proved beyond a reasonable doubt as you see that and as I tellyou what the law is. Would you have any problem with saying that the defendant is notguilty if they don't prove their case?
"PROSPECTIVE JUROR NO. 383: No, if [the prosecutor] doesn't have it, if shecan't prove it.
"THE COURT: All right. That's good."
Shortly thereafter, County Court further questioned juror No. 383 regarding herwillingness to follow its legal instructions in rendering a verdict, and she agreed that shewould "follow the law as . . . instruct[ed] . . . at the end of thecase." County Court then denied defendant's challenge for cause, and juror No. 383 wasexcused via a peremptory challenge.
The record does not suggest that juror No. 383 harbored any specific animus towarddefendant. It does demonstrate her fears that she could not be fair given the fact thathorrible crimes were committed against a young victim, but "most if not all jurors bringsome predispositions, of varying intensity, when they enter the jury box" (People vWilliams, 63 NY2d 882, 885 [1984]). The law does not demand that a prospectivejuror be a heartless automaton or evince a "total absence of prejudice"; it instead requiressuch a person to express a "stated readiness to lay his [or her] feelings aside in thedischarge of his [or her] duties as a juror" (id.; see People v Arnold, 96NY2d 358, 362 [2001]). Accordingly, "where [a] prospective juror[ ] unambiguouslystate[s] that, despite preexisting opinions that might indicate bias, [he or she] 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 at 363; see People v Wlasiuk, 90 AD3d 1405, 1411 [2011]).
County Court noted the disturbing nature of the case and stressed that the death ofthe victim did not necessarily implicate defendant in that death. County Court thenquestioned one prospective juror as to whether he could be fair and impartial and, whenviewed in that context, immediately turning to juror No. 383 and posing the "samequestions" to her can only be viewed as an attempt to "force her to confront the crucialquestion [of] whether she could be fair to this defendant in light of her expressedpredisposition" (People v Arnold, 96 NY2d at 363-364; compare People v Harris, 19NY3d 679, 685-686 [2012]; People v Johnson, 17 NY3d 752, 753 [2011]; People v McGuire, 101 AD3d1386, 1388-1389 [2012]). She thereafter confirmed that a "fair and impartialverdict" of guilt could only flow from the People meeting their burden of proof, andprovided unequivocal assurances that she would not have "any problem" in following thelaw and acquitting defendant if the People failed to meet that burden. County Courtplainly credited those assurances despite the prior indications that she might not be ableto do so. Thus, upon the facts of this case, I perceive no abuse of discretion in the denialof defendant's challenge for cause (see People v Arnold, 96 NY2d at 363; People v Hoffmann, 122 AD3d945, 946 [2014], lv denied 24 NY3d 1219 [2015]; People v Williams, 107 AD3d746, 747 [2013], lv denied 21 NY3d 1047 [2013]; People v Knowles, 79 AD3d16, 23 [2010], lv denied 16 NY3d 896 [2011]). Ordered that the judgmentis reversed, on the law, and matter remitted to the County Court of Warren County for anew trial.
Footnote 1:Defendant exhausted hisperemptory challenges after using one on juror No. 383, making any error in regard toCounty Court's denial of defendant's request to dismiss that juror for cause reversible (see People v Harris, 19 NY3d679, 685 [2012]; People v Blyden, 55 NY2d 73, 76 [1982]).
Footnote 2:Particularly consideringjuror No. 383's words, "I can't do it," it is notable that County Court had previouslyinstructed this juror—along with all of the prospective jurors—in thefollowing manner: "I need you to say yes [I can be fair and impartial], I will dothis. . . . [I]t's just you need to state that yes, you'll do [it] or if youabsolutely can't, tell us that too so we know you can't do it." Therefore, according to thecourt's own instructions, a potential juror was supposed to inform the court that he or shecould not be fair and impartial in the event that he or she "absolutely" could not "do it."
Footnote 3:Despite this conclusion,we note that the record reflects that the District Attorney made multiple requests relatedto furthering County Court's voir dire inquiries and rehabilitation efforts. In our view, theDistrict Attorney made honorable efforts in an attempt to ensure that defendant wasprovided a fair and impartial jury.
Footnote 4:The deprivation of theright to a fair and impartial jury is not subject to harmless error analysis (see Rose vClark, 478 US 570, 578 [1986]; People v Cahill, 2 NY3d 14, 49-50 [2003]; People v Petke, 125 AD3d1103, 1105 [2015], lv granted 25 NY3d 1075 [2015]; People v Russell, 116 AD3d1090, 1094 [2014]).