| People v Spencer |
| 2016 NY Slip Op 00447 [135 AD3d 608] |
| January 26, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Darrell Spencer, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Eric C. Washer of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (William I. Mogulescu, J.), rendered July18, 2013, convicting defendant, after a jury trial, of manslaughter in the first degree, andsentencing him to a term of 25 years, affirmed.
The court properly denied defendant's motion to suppress his statements as fruits of awarrantless home arrest based upon its finding that defendant voluntarily came out of hisapartment. There is no basis for disturbing the court's credibility determinations. Thehearing evidence established that there was no violation of Payton v New York(445 US 573 [1980]) because defendant knowingly and voluntarily presented himself forpublic view (People vAshcroft, 33 AD3d 429, 429 [1st Dept 2006], lv denied 8 NY3d 843[2007], cert denied 552 US 829 [2007]).
The court properly denied defendant's request for a jury instruction regardingintoxication. At trial, defendant maintained he had stabbed the victim out of self-defense.In the aftermath of the stabbing, he carried the victim to the tub, ran the shower to washaway the blood, tried to clean up the living room floor and walls, and sent his friend atext message, asking her to bring over plastic bags and cleaning supplies. Viewed as awhole and in a light most favorable to defendant, the evidence, which included, amongother things, defendant's entirely purposeful behavior, provided no reasonable view thathe was so intoxicated as to be unable to form the requisite intent (see People v Beaty, 22 NY3d918, 921 [2013]).
The court properly denied defendant's application for a mistrial. On the fourth day ofthe deliberation, after counsel had agreed to excuse the alternate jurors, the court wasnotified that juror number one, the foreperson, had concerns. In the presence of bothattorneys, the court conducted an in camera, individualized inquiry of the juror (seePeople v Rodriguez, 71 NY2d 214 [1988]). The juror said she could not "separate[her] emotions from the case" and although she had originally thought she could do that,was now unable to do so. The court reminded her that she had a duty to decide the case"on the evidence and the law as you find it to be" adding, that "I know it's difficult to bea juror but . . . we've all put [in] a lot of time, a lot of effort, and there's noway that we can go forward without you." When the juror asked the court, "So is it justthat I make a decision based on my emotions, just to get it out of the way?" the courtreplied, "No, no I wouldn't ask you to make a decision based upon youremotions. . . " and urged her to "put aside, to the extent that you can, youremotion and make a decision. Speak to your fellow jurors; discuss with your fellowjurors; listen to your fellow jurors; express your own views to your fellow jurors; andthen, eventually, come to a decision as to the one issue here . . . whether ornot the People have proven Mr. Spencer's guilt beyond a reasonable doubt. I'm going tohave to ask you to really try very hard to do that." When the juror told the court "I don'thave it in me," the court reassured her "there is no new jury that's going to be any betterdoing this than you are" and stated: "THE COURT: Look if you think of the position thatwe're in now[*2]. . . I mean this is asignificant case and everybody here has a real interest in it being resolved. Your fellowjurors have an interest in it being resolved; the People of the State have an interest of itbeing resolved, everybody does. And so I'm going to ask you to really do, you know, todecide the case. Figure out what you believe the facts are. And without fear or favor orbias or sympathy, once you decide the facts and apply the law, then you will decidewhether or not Mr. Spencer is even [sic] guilty or not guilty."
The court then asked the juror whether she could decide what the facts are and sheresponded "yes." The court then asked whether she would apply the law as "I give it toyou" and the juror replied that she would. The court then made the following statementand sent the juror back to join the other jurors: "THE COURT: I understand what you'resaying. But you're capable of deciding, on your own, what the facts are. And once you dothat, once you do that, then its your job to apply the law to the facts. And come to adecision based on the law and the facts and that's what you promised to do. So I'm goingto ask you to try to do that."
After juror number one had left the courtroom, defense counsel immediately movedfor a mistrial, claiming that juror number one was grossly unqualified (CPL 270.35 [1]).The court, stating that it was "not prepared, at this time to grant a mistrial" denied themotion, but asked defense counsel, "[I]s there anything you feel I should ask herfurther?" to which defense counsel answered, "No." The trial court then offered to givethe jurors an Allen charge, but both attorneys objected. The People's objectionwas on the basis that they had not asked for it, and defense counsel's objection was "Youalready said it." The court had all the jurors brought in and gave them the followingadditional instruction: "THE COURT: What I'm going to ask you to do is I'm going toask you to continue to apply the law to the facts as you find the facts without fear orfavor or bias or sympathy of any kind that's your job. An I'm going to ask you to do that.So I'm going to ask you to return to the jury room and resume your deliberations. And ifsomething occurs to you that you think will be helpful, because that's what you promisedto do and I'm going to really hold you to that promise. That you will decide this case onthe facts as you find them; the law as I've told you; without fear or favor or sympathy orbias, okay."
Without prompting, juror number one responded, "I have no choice," and the courtagreed: "That's true, okay, thank you very much." The jurors were sent back to deliberate.Outside the presence of the jurors, the court encouraged both sides to discuss thepossibility of resolving the case with a plea. Later that afternoon, however, the jurynotified the court it had reached a verdict.
After a juror is sworn in, the juror should be disqualified only "when it becomesobvious that [the] juror possesses a state of mind which would prevent the rendering ofan impartial verdict" (CPL 270.35 [1]; People v Buford, 69 NY2d 290, 298[1987]; People v Watson, 243 AD2d 426 [1st Dept 1997], lv denied 92NY2d 863 [1998]). The trial court properly concluded, based upon its observations of thejuror and its interactions with her, that she was not grossly unqualified from continuingto serve (CPL 270.35 [1]; Buford, 69 NY2d at 298). Contrary to how the dissentcharacterizes the trial court's interactions with the juror, the colloquy, consisting of some10 transcribed pages, shows that the court patiently listened to the juror and tactfullyasked her probing questions to determine whether, for some reason, she could not beimpartial (see People v Sanchez, 99 NY2d 622 [2003]). She was candid in herresponses and forthright about her concerns. None of her concerns had to do with fearabout her personal safety (seePeople v Ward, 129 AD3d 492, 493-494 [1st Dept 2015] [juror afraid of reprisalfrom defendant's accomplices], lv denied 26 NY3d 936 [2015]), nor did sheexpress any concerns about feeling coerced by her fellow jurors to vote in any particularway (see People v Alvarez, 86 NY2d 761, 763 [1995]). The juror neverexpressed an inability to deliberate fairly and render an impartial verdict, nor did shemake any statements that could be taken as evidence of bias or sympathy either towardsthe deceased or the defendant that would have prevented her from deciding defendant'sguilt or innocence. The juror only said that she was having difficulty separating heremotions, not that she was incapable of deciding the facts or applying the law, or that shewould disobey the court's instructions.
After the court listened to her concerns, and reassured her that she could do the jobthat she had taken an oath to do, the juror told the court that she could and would decidethe facts and follow the court's instructions to reach a verdict (see People v Parrilla, 112AD3d 517, 518 [1st Dept 2013], lv granted 26 NY3d 933 [2015]). Hercomment that she had "no choice," in the overall context of the reassurances she gave tothe trial court that she could decide the facts and would apply the law, was not a basis todisqualify her. Since the trial court personally observed her demeanor and gauged herresponses to its inquiries, it was in the best position to ascertain her impartiality (seePeople v Bamfield, 208 AD2d 853, 854 [2d Dept 1994], lv denied 84 NY2d1009 [1994]). That finding is accorded deference and we decline to disturb it.
Although the dissent notes that the trial court, in its individual inquiry, did not stressthe importance of the juror reaching a verdict without surrendering her conscientiousbelief (see People v Nunez, 256 AD2d 192, 193 [1st Dept 1998], lv denied93 NY2d 975 [1999], citing People v Ali, 65 AD2d 513 [1st Dept 1978],affd 47 NY2d 920 [1979]), that instruction had already been given to all thejurors when they were originally charged. Both attorneys objected to the court giving thejury an Allen charge, which would have, once again, stressed the importance ofreaching a verdict without forcing any juror to surrender a conscientiously held belief(Allen v United States, 164 US 492 [1896]). When asked by the court whether hehad any further questions for the juror, defense counsel responded he had none. Defensecounsel did not object to any of the statements the trial court made to the juror during itsinquiry of her. The court's statements to the juror, urging her to continue deliberationswith her fellow jurors, and to decide the facts and apply the law, as it was given to her,did not amount to coercion of a particular verdict (see People v Pagan, 45 NY2d725 [1978]). The court properly exercised its discretion in declining to discharge thejuror, a remedy that would have necessitated a mistrial since the alternative jurors hadalready been excused (see CPL 270.35 [1]; Buford, 69 NY2d at 299-300).The colloquy supports the conclusion that the juror could reach a fair and impartialverdict.
We perceive no basis for reducing the sentence. Concur—Saxe, Richter andGische, JJ.
Tom, J.P., dissents in a memorandum as follows: Because the trial court failed toconduct a tactful and probing inquiry to ascertain whether a juror was capable ofrendering an impartial verdict and because the court, in further instructing the jury, failedto emphasize the need to arrive at a verdict without requiring any single juror tosurrender her conscientious belief, the record does not afford an adequate basis for thisCourt to conclude that the verdict was not the result of coercion, and a new trial isrequired.
On the morning of the fourth day of deliberations, after the alternate jurors had beendischarged, the court received a message from juror number 1 stating that she wanted tobe excused. The court conducted an inquiry into the juror's concerns in the courtroom inthe presence of counsel and defendant (see People v Buford, 69 NY2d 290, 299[1987]). The juror was able to say only, "I'm not sure that I'm able to separate myemotions from the case so I just wanted to&mdash," when the court cut her off:
"THE COURT: Well, I mean, you have to do that. You have to [*3]separate your emotions. You're a member of a jury of 12people. As I said, this has to be decided. And you promised you will be able to do so. Ithas to be decided on the evidence and the law as you find it to be. And I know it'sdifficult to be a juror but that's you know—I mean we've all put a lot of time, a lotof effort, and there's no way we can go forward without you.
"THE JUROR: Well, I do understand. I feel—I thought I would be able to butit is my duty to let you know that I haven't been able to.
"THE COURT: Well, I mean, it's something. We can't go forward and there's no waywe can excuse you. We can't go forward without you, we just can't.
"THE JUROR: So is it just that I make a decision based on my emotions just to get itout of the way?"
The court responded that it would not ask the juror to make a decision based on heremotions, but asked that she attempt to put aside her emotions and make a decision. Thejuror responded, "I don't feel like I'm able to. I mean I've been trying extremely hard andI don't feel that I can without—I can't separate it I thought that I could." The courtagain directed the juror "to decide the facts . . . and apply the law as I havesaid it to you." To which the juror replied, "But that's what I have been trying to do andthat's why I've come to [the] conclusion that I can't. I don't have it in me." The courtagain asked the juror to "try very hard" to continue engaging in deliberations with herfellow jurors. Again the juror responded, "I can't, I can't separate it anymore. Don't know,I don't know. I don't have the capabilities to. I've been trying and I can't. That's what I'mtrying to tell you." Ignoring the juror's plea, the court once again told the juror to "goback over it with your fellow jurors and to try because that's your job," the followingcolloquy ensued:
"THE JUROR: I feel like I am. And I don't feel like I can do that that's what I feel.Like it's not like I came to this conclusion, I stepped in one minute and I came right backout. I feel like I've come and giving [sic] up my conscience. I did take an oath to do acertain job that I can't do it I can't.
"THE COURT: But you can decide what the facts are can't you?
"THE JUROR: Yes.
"THE COURT: And once you've done that, once you've decided the facts, then youhave to apply the law as I [gave] it to you that you have to do."
When the juror said, "[A]ll right, I mean I'm telling"—the court abruptly cutshort the juror's further attempt to explain her feelings with another instruction to "cometo a decision based on the law and the facts," at which point defense counsel moved for amistrial on the ground that "this juror is no longer qualified to be a juror in this case."The court immediately denied the application. When the jury returned to the courtroom,the court asked them collectively to apply the law to the facts and to continuedeliberations "without fear or favor or sympathy or bias, okay." Juror number 1responded, "I have no choice," and the court stated, "That's true, okay. Thank you verymuch."
After the jury left the courtroom to resume deliberations, the court expressed itsbelief to counsel that "the juror, at this stage, is the sole hold on [sic] in this case. . . but for whatever reason up to now feels, notwithstanding what she hadsworn to do, that she can't say guilty." The court urged defendant to accept an offer toenter a plea to manslaughter in the first degree and recessed the case for lunch to allowhim to consider it. But when the jurors returned only a short while later at 2:30 p.m., theyannounced that they had reached a verdict, finding defendant guilty of first-degreemanslaughter.
A defendant has the right to removal of a juror who is "grossly unqualified" tocontinue serving (CPL 270.35 [1]; People v Rodriguez, 71 NY2d 214, 218-219[1988]). Disqualification [*4]requires a "tactful andprobing inquiry" that convinces the court, based on the juror's unequivocal responses, ofthe "gross disqualification to serve impartially" (People v Anderson, 70 NY2d729, 730 [1987]).
In the matter before us, the trial court's inquiry was neither particularly tactful norprobing. By cutting off the juror's attempt to explain the nature of her emotional conflict,the court neglected to investigate how her emotions might—or mightnot—interfere with her ability to render an impartial verdict (id.). Havingrendered equivocal, by its interruptions, the juror's responses, there was little for the trialcourt to assess, resulting in an inadequate record for this Court to review. Like a trialcourt, we "may not speculate as to the possible partiality of a sworn juror based onequivocal responses" (id.). Furthermore, it is clear that the trial court failed toascertain that the juror would not render a determination "based on my emotions just toget it out of the way" or by "giving up my conscience" or because "I have no choice."Finally, the court failed "to stress the importance of reaching a verdict without requiringthat any juror surrender a conscientious belief" (People v Nunez, 256 AD2d 192,193 [1st Dept 1998], lv denied 93 NY2d 975 [1999], citing People v Ali,65 AD2d 513 [1st Dept 1978], affd 47 NY2d 920 [1979]).
Moreover, a review of the record makes clear that, like the court inRodriguez, the trial court's predominant concern was not determining whether thejuror was "grossly unqualified" but was to avoid declaring a mistrial at all costs. InRodriguez, the trial court expressly informed the juror that her discharge wouldresult in a mistrial, that there were no more alternates, and remarked that "after almosttwo days of deliberating all this goes down the drain" (71 NY2d at 217). Here, the court,faced with the same concern, repeatedly pressured the juror and ignored her concerns,stating that she had to continue, that "there's no way we can excuse you," confirming thatshe had "no choice," and noting the time and effort put into the case and how thedefendant, the prosecution, and the other jurors had a "real interest in [the case] beingresolved."
In addition, unlike the jurors in People v Buford and its companion case,People v Smitherman, who were concerned about relatively insignificant matters"unlikely to affect their deliberations" (Rodriguez, 71 NY2d at 219), the recordhere does not allow for such a conclusion. Indeed, while the trial court did notsufficiently probe the juror's emotional conflict, it is clear that, although the juror tried toseparate her emotions for three days of deliberations, she felt compelled to advise thecourt that she was unable "to separate her emotions from the case" and could not do thejob she took an oath to do without "giving up [her] conscience."
Nor did the juror here claim an ability to render an impartial verdict or state that she"could separate her own emotions and experience from the facts and the evidence in thiscase" (cf. People v Dacus, 215 AD2d 578, 579 [2d Dept 1995], lv denied86 NY2d 793 [1995]).
Contrary to the majority's implication, it is not necessary for the juror to expressconcern for her personal safety or about feeling coerced by her fellow jurors in order forher to be found "grossly unqualified." Significantly, the juror stated that she could notrender an impartial verdict, could not separate her emotions despite her best efforts, anddid not want to make a decision "based on my emotions just to get it out of the way."
While defense counsel may not have objected to any of the statements the trial courtmade to the juror and did not propose further questions for the juror, it is ultimately thetrial court's responsibility to conduct a sufficient inquiry to ensure the juror can serveimpartially and without surrendering her conscientious belief. Nonetheless, after thecourt ended the colloquy with the jurors, counsel immediately moved for a mistrial on theground she was no longer qualified to be a juror in this case.
The court's failure to conduct a sufficient inquiry is no better than a refusal to makeany inquiry whatsoever. Indeed, in either case, the issue is "not whether the jurorultimately would or should have been discharged" (People v McClenton, 213AD2d 1, 7 [1st Dept 1995], lv granted 86 NY2d 848 [1995], appealdismissed 88 NY2d 872 [1996]). Rather, it is the failure of the court to fully explorewhether the juror was unwilling or unable to separate her emotions from her task as ajuror, and whether she would render a decision based on her emotions for expediencesake. Ultimately, this failure means we can not be certain that defendant was fairlyconvicted because it will never be known whether the conviction was obtainedunder[*5]"questionable circumstances which could havebeen easily clarified had appropriate inquiry been timely made" (id. at 6; see also People v Ventura, 113AD3d 443, 446 [1st Dept 2014], lv denied 22 NY3d 1203 [2014]).
The improper discharge of a sworn juror violates the right of a defendant to bejudged by a jury in whose selection he has participated (Rodriguez, 71 NY2d at218). By the same token, it is equally improper and prejudicial for a court to "attempt tocoerce or compel the jury to agree upon a particular verdict, or any verdict" (People vPagan, 45 NY2d 725, 726 [1978], quoting People v Faber, 199 NY 256, 259[1910]). The record here clearly supports the fact that the court coerced the juror, whomay have surrendered her conscientious belief, to render a verdict. "The verdict of a jurorshould be free and untrammeled" (Faber, 199 NY at 259) and here, as inFaber, the court's instructions "may have resulted in an agreement by the jurywhere an agreement would not have been obtained if each juryman in obedience to hisright and duty had decided the case upon his own opinion of the evidence and upon hisown judgment" (id.).
Accordingly, the judgment of conviction should be reversed and the matter remandedfor a new trial.