Opinion
3825/06.
Decided August 21, 2007.
Patrick L. Bruno, Esq. for the Defendant.
Assistant District Attorney Lisa R. Mattaway, Esq. for the People.
The Defendant, Ricardo Jimenez, seeks an Order pursuant to C.P.L. 330.30(2) setting aside a verdict of guilty rendered after a jury trial on July 13, 2007. He alleges improper conduct of one or more jurors which affected a substantial right and which was not known to him prior to the rendition of the verdict. The People oppose the Defendant's motion.
Mr. Jimenez was charged with Murder in the Second Degree (P.L. § 125.25) for the killing of Sean Worrell on July 3, 1989. His trial began on June 20, 2007 before a jury of fifteen people, including three alternates. The jury heard testimony from approximately twelve prosecution witnesses. The Defendant did not testify nor presented any witnesses. Both parties rested their cases on July 9, 2007. The next day the parties presented their summations and the case was given to the jury. On July 11, 2007, during the course of deliberations, Juror number ten alerted court personnel that she detected a strong odor of alcohol emanating from Juror number one. After advising both parties, this Court conducted an inquiry of all the jurors, including the alternates. The Court asked each individual juror in camera whether they noticed any odors or unusual behavior amongst the jury. Except for Juror number ten, each juror responded negatively to the question posited by the Court. None detected an odor, nor noticed any unusual behavior. Juror number ten told the Court that she smelled an odor of alcohol coming from the foreperson. She said she noticed it the week prior and found it annoying, but indicated "I don't think it will keep me from deliberating. I think I could still do it, but it's upsetting." Jimenez Trial Tr. 812:4-6. When asked whether she noticed any unusual behavior on the part of Juror number one or any other jurors she indicated, "No, just him. He's out of it. Like, he just lays there. He doesn't talk. He doesn't give an opinion." Id. at 813:4-7. The Court then conducted a second in camera inquiry bringing back Jurors number one, two and ten. During this inquiry the Court asked Juror number ten if she was confident that this annoyance is not reaching a level that would prevent her from being able to reach a verdict. Juror number ten stated, "I'm confident that we could reach a verdict . . . I feel like I can that we could deliberate." The Court further asked Juror number ten whether she could still go through the process and render a verdict. Juror number ten responded, ". . . definitely." Id. at 826:12. When deliberations resumed the Court received two notes requesting readback of the testimony. On July 13, 2007, the jury completed deliberations and rendered its verdict of guilty. Upon taking of the verdict, the jurors were individually polled and each affirmed the verdict of guilty. The jury was directed back to the jury room. In the absence of counsel and off the record, this Court thanked the jury again and asked if any juror had questions or desired to speak with the Court. None of the jurors elected to do so.
The Defendant now moves this Court to set aside the verdict on the grounds of improper conduct on the part of one or more jurors pursuant to C.P.L. § 330.30(2). In his motion, Defense counsel asserts that he met Juror number ten in the court corridor after the trial. She stated to counsel that she had just "sent an innocent man to jail" (Defendant's Motion, Affirmation of Patrick L. Bruno, Esq. ¶ 9), and appeared teary eyed and visibly shaken. Counsel spoke with Juror number ten on two more occasions after the trial. Based on the conversations Juror number ten signed a sworn affidavit in support of this motion. Her affidavit states in sum and substance that three male jurors (numbers one, three and six) acted abusive or improper. At the start of deliberations the vote was eight to four for an acquittal. According to Juror number ten, Jurors one, three and six were adamant about convicting and were abusive to her when she disagreed. Juror number three in particular was "extremely disrespectful and vulgar" (see Defendant's Motion, Affidavit of Ruth Denise Guerrero, ¶ 6). As deliberations continued she indicates that more jurors were concerned about returning to work and less concerned with reasonable doubt that she and other jurors felt. By the last day of deliberations she was the last juror to vote for an acquittal and was yelled at by Jurors number one, three and six. She suggested she was emotionally beat down and gave in, agreeing to vote guilty.
In response, the People contend that there was no juror misconduct or outside influence that prejudiced a substantial right of the Defendant. According to the People each of the claims alleged by Juror number ten do not rise to the level of misconduct or outside influence contemplated by the statute or supporting caselaw. The Court concurs with the People. C.P.L. § 330.30(2) states
At any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon the following grounds: . . . 2. That during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict; . . .
Generally, a verdict may not be impeached by probes into the jury's deliberative process; however a showing of improper influence provides a necessary and narrow exception to the general proposition ( see People v. Maragh, 94 NY2d 569, 573). Improper influence includes even "well-intentioned jury conduct which tends to put the jury in possession of evidence not introduced at trial" ( Id. citing People v. Brown, 48 NY2d 388, 393).
Here, the Court does not find the presence of any improper influence on the jury. Juror number ten's statements in her affidavit forces this Court to delve into the deliberative process. A path this Court declines to follow, as a verdict may not be impeached due to the tenor of the deliberative process ( see People v. Gerecke , 34 AD3d 1260, 1262 [4th Dept. 2006]; People v. Jordan , 34 AD3d 927, 931 [3rd Dept. 2006]; People v. Anderson, 249 AD2d 405, 406 [2nd Dept. 1998]). In fact, intense feelings and emotional manifestations often accompany the free and unfettered exchange of views that are the hallmark of the heightened atmosphere in which the jury's decision making process takes place ( see People v. Redd, 164 AD2d 34, 37 [1st Dept. 1990]).
In the instant case, since no reservations were expressed by the disaffected juror before the verdict was rendered, she cannot now be permitted to impugn the integrity of the verdict with belated claims of coercion by other members of the jury. During deliberations, Juror number ten was given two separate opportunities to express her concerns to the Court regarding the other jurors. Instead, she told the Court on at least three times that she could deliberate and felt confident about reaching a verdict. She gave no indication of any other problems, aside from the smell of alcohol, which was unsubstantiated by the remaining jurors, including Juror number two who sat next to Juror number one during the entire trial. After the verdict, Juror number ten was presented with two more opportunities to inform the Court of her sentiments regarding deliberations. When polled by the Court, Juror number ten confirmed that a vote of guilty was her verdict. ( See People v. Goode, 270 AD2d 144, 145 [1st Dept. 2000] [declining to impeach a verdict based on allegations of coercion especially in light of the protesting juror's confirmation of a guilty verdict upon polling of the jury]). Finally, when the jury returned to the jury room and the Judge offered to speak with any jurors who had questions or comments, juror number ten declined to do so.
As there is no ground constituting a legal basis upon which to grant this motion, the Court need not conduct a hearing and the motion is therefore denied (see C.P.L. § 330.40[e][i] and [f]).
The above constitutes the Decision and Order of this Court.