From Casetext: Smarter Legal Research

People v. Santana

Supreme Court, Bronx County, New York.
Dec 4, 2017
67 N.Y.S.3d 430 (N.Y. Sup. Ct. 2017)

Opinion

12-04-2017

The PEOPLE of the State of New York, Plaintiff, v. Esteban SANTANA, Defendant.

Francine Ward, Assistant District Attorney, Office of Bronx District, Attorney Darcel D. Clark. Laurence Gurwitch, Legal Aid Society, for the Defendant.


Francine Ward, Assistant District Attorney, Office of Bronx District, Attorney Darcel D. Clark.

Laurence Gurwitch, Legal Aid Society, for the Defendant.

APRIL A. NEWBAUER, J.Defendant's post-trial motion to set aside a verdict for juror misconduct raises questions about whether jurors can be insulated from trial publicity in the digital age. The defense claim of misconduct centers around a 2014 YouTube video depicting an individual named Brownie Lopez punching another man to the ground in an unrelated incident and causing his death. Brownie Lopez was originally charged in the indictment in this case with acting in concert with defendant Esteban Santana in an attempted robbery in the first degree. Brownie Lopez pled guilty to a misdemeanor and was sentenced before the trial. Defendant Santana was convicted of the top count. After defendant Santana's trial, two jurors admitted they were familiar with the video, had seen it before deliberations began and implicated a third juror as having referred to it. Other jurors were thought to have seen the video as well. Following a hearing at which all twelve of the jurors and alternates testified, the defendant's motion is denied for failure to demonstrate any impact of the video on the verdict.

Procedural history

On June 20, 2017, the defendant was convicted after a jury trial of attempted robbery in the first degree in violation of Penal Law section 110/160.15(3). The matter was adjourned until July 10, 2017 for sentencing. On June 30, 2017, defendant filed a motion pursuant to Criminal Procedure Law § 330.30 asking this court to set aside the verdict of the jury based on allegations of jury misconduct. On July 10, 2017, the court set a tentative hearing date of July 20, 2017 based upon the allegations in the defendant's motion papers. After several scheduling conflicts with the witnesses, the hearing was commenced on September 7, 2017 and concluded on September 28, 2017. The first two witnesses, jurors Zhang and Marrero, were called by the defendant. After the verdict was rendered, each of these two witnesses had provided information to defense attorney Casey Trimble. Mr. Trimble documented his conversations in an affirmation which was attached to the defendant's motion papers as Exhibit A. Defense counsel Gurwitch also provided an affirmation attached as Exhibit B. After two witnesses testified, the court, upon consultation and consent of the parties, determined that it was necessary to call the remaining jurors because of questions raised by the testimony of jurors Zhang and Marrero.

On July 18, 2017, the court issued a written decision on the defendant's CPL § 330 motion granting a hearing as to the claim that during deliberations the jurors discussed a YouTube video of an unrelated incident purporting to show co-defendant Brownie Lopez punching another male, leading to that person's death. Under the circumstances here, it was adequate for counsel to put this specific information in affirmations to demonstrate the need for a hearing. The hearing focused on to what extent any viewing of this video and jury discussions of it affected the defendant's right to a fair trial.

In his affirmation, Mr. Trimble contended that after the verdict was rendered he spoke with eight to ten jurors about how various pieces of evidence influenced their deliberations. In particular he recalled how juror Marrero said the jury did not hear from the defendant but learned about Brownie Lopez's past from a video on YouTube. According to defense counsel, Marrero informed them that a few of the jurors discussed the video and when they saw the arrest photo introduced at trial, they knew it was the same person. The defense then concluded that the video led Marrero to vote guilty. Attorney Trimble also stated that he spoke with juror Zhang by telephone. Zhang was on speaker phone while talking to both defense attorneys. Zhang informed them that he had seen the video of a person named Brownie Lopez and that he remembered the video from the media. Zhang purportedly told the attorneys that the video was discussed among a few jurors outside the deliberation room.

Mr. Gurwitch stated in his affirmation that he spoke with Marrero by telephone the day after the verdict. Marrero informed him that a group of jurors had discussed seeing the video of Brownie Lopez and that the jurors looked at the arrest photo and knew it was the same person in the video. Mr. Gurwitch also indicated that he listened to the telephone conversation between his co-counsel and Zhang. Zhang informed Mr. Trimble that he knew about the video as well and said that he had discussed the video with a number of other jurors.

The testimony

Zhang

Zhang testified that he was familiar with a video he viewed years before on Facebook or somewhere on the internet when he was in college in the fall of 2013 or 2014. The video depicted an individual named Brownie Lopez punching another male, who as a result of the punch fell to the floor and died. Since that time, Zhang had neither seen nor heard about Brownie Lopez. Zhang testified that during jury selection process, he heard the name Brownie Lopez but did not make the connectionto the name or the video at that time. At the trial, Zhang learned that a person named Brownie Lopez was the individual who acted in concert with the defendant. One of the other jurors mentioned the video to Zhang and then he made the connection that he had watched a similar video before. Zhang stated that he then watched the video during a break in the testimony of one of the officers. Some jurors discussed seeing a video or hearing about a video that depicted an individual named Brownie Lopez but Zhang did not recall which juror or number of jurors discussed it. The jurors spoke about the video in the waiting room, not in the jury deliberation room. He recalls that a few people may have watched the video recording together. During the post trial hearing, Zhang somewhat disingenuously claimed that he was still not aware that the person depicted in a video was that same person mentioned at trial.

Zhang recalled that a photograph of the separately apprehended individual Brownie Lopez was introduced as evidence. Zhang stated that he talked about the photograph but he never compared the photograph to the video recording; he was not aware of any other juror who had; and no cell phones were allowed in the deliberating room. Zhang stated that during the deliberations, a juror placed all of the evidence on the table, including the photograph of Brownie Lopez. Zhang believed that all of the jurors looked at that photograph, but at some point, one of the jurors flipped the photograph of Lopez over; the jurors did not look at that photograph again, Zhang said, because they wanted to focus their decision on the evidence. The video was not discussed during deliberations by him or any other juror. For him, the clothing that defendant Santana was wearing in the arrest photograph, the location of the arrest and the short time frame between the incident and the arrest were factors important to his verdict. Zhang testified that his viewing of the video did not affect his verdict, he did not consider the video or Brownie Lopez when he made his decision about Esteban Santana and he followed the court's instructions to the best of his ability.

Marrero

Although he spoke to the defense counsel right after the verdict, juror Marrero refused to come to court as a defense witness and so was subpoenaed. Marrero testified that he recalled during the jury selection process, the judge listed several names of people that might come up during the trial to see if the jurors recognized them. Marrero heard the name Brownie Lopez but stated that at that time he did not recognize the name. Marrero learned during the trial that the other person who was arrested with the defendant was named Brownie Lopez. Marrero indicated that he had seen a video long before he served as a juror, showing an older man harassing a younger man. The younger man then punched the older man, causing the older man's death. Marrero had not known the younger man in the video was named Brownie Lopez until one of the jurors suspected that it might be the same person. Marrero mentioned how that name is not common and that the jurors discussed how similar the man in the video looked to the man in the arrest photograph. Then a fellow juror, Ms. Lopez, verbally confirmed that it was the same person. Marrero and Lopez talked about this one morning after the jurors saw the arrest photograph of Brownie Lopez introduced at trial. One juror said they should not talk about it because he was not the person on trial. Marrero testified that the conversation was then "squashed" and the jurors did not speak about Brownie Lopez again. Marrero stated he did not view a video in the waiting area, did not see anyone who did, and none of the jurors told him that they had viewed the video. During deliberations, he viewed the arrest photograph of Brownie Lopez as well as the other evidence. Marrero did not recall seeing anyone turn the arrest photograph over or discussing the arrest photograph of Brownie Lopez.

Marrero acknowledged that he spoke with attorney Trimble right after the verdict was rendered but denied ever speaking with Mr. Trimble about a video of Brownie Lopez or the fact that the defendant did not testify at trial. At the hearing, the defense asked Marrero to view a video recording which introduced into evidence on consent of the parties and marked as Court exhibit No. 1. Marrero admitted that it might have been the film that he previously viewed but he was unsure if it was the exact footage. Marrero stated that his knowledge of the video did not impact his decision. He listened to the testimony, reviewed the evidence and followed the judge's instructions on the law. Marrero testified that his knowledge of a video had nothing to do with the facts introduced at trial, the evidence he reviewed or his decision in this case.

Marrero and Zhang were quite a pair on the witness stand: Marrero hostile and withholding; Zhang sarcastic and bored. Both were very obviously annoyed to have been summoned back to court by the defense counsel. Neither was entirely forthcoming as to all of his previous interactions with the other jurors or with the defense counsel. The court credits attorney Trimble's recitation of his conversation over Marrero's grudging recollection of that encounter.

Lopez and Guzman

Lopez was issued a court subpoena following the testimony of Zhang and Marrero. Lopez said she did not remember the name "Brownie Lopez" as the second person arrested with the defendant who was on trial. Lopez did acknowledge that during the trial the name Brownie Lopez was mentioned. She denied seeing a video of him or of a man punching another in connection with this case, however. Lopez testified that she did not speak with anyone about such out a video and she did not hear anyone else speak about a video. Lopez denied that anyone asked her to confirm that a man in a video was the second person arrested with the defendant. Lopez said she did not search the name Brownie Lopez on Google and she did not know if anyone on the jury did.

The defense counsel did not talk to Lopez after the trial and Lopez was harder to read, but given the credible testimony by Zhang, Marrero and Guzman that it was Lopez who made reference to the video, her denial on this point is rejected as incredible.

Lopez remembered fellow juror Daniel Marrero and admitted she spoke to him a little in the waiting room and during deliberations. Lopez indicated that Marrero and other jurors would watch movies on the cell phones in the waiting room but she did not see what they were watching. She also recalled fellow juror Zhang but did not remember him watching a video. Lopez recalled hearing jurors discussing Brownie Lopez before the jury began deliberations. During deliberations, she or another juror flipped the arrest photograph of Brownie Lopez face down so that the jury would not concentrate on Brownie Lopez but rather on the defendant as the only person on trial. The jurors all agreed with her doing this. Lopez concluded her testimony by saying that her verdict was based on the evidence, the testimony and the exhibits, and that she followed the judge's instructions on the law.

Guzman was also a juror who was subpoenaed by the court. Guzman recalled observing her fellow jurors, Marrero and Lopez, in the waiting room discussing a video but she herself did not see the video. Guzman thought the video was about something on television that had nothing to do with this case. She was not close enough to know what was on the video or if they viewed the video. Guzman said all the jurors were in the waiting area at the time, but she did not know if anyone else saw the video. She did not recall anyone subsequently discussing the video, including during deliberations. Guzman indicated that she followed the judge's instructions through every stage of the trial, and her knowledge that a Brownie Lopez video existed did not influence her decision.

Other jurors

Juror Coke testified that one of the jurors had mentioned during deliberations that Brownie Lopez had a prior charge. Coke recalled that other jurors "shut down" this juror in order to stop any discussion of Brownie Lopez's past. She said the jurors did cease, and focused on Santana, who was the person on trial. The remaining jurors (Gomez, Asare, Brown, Kennedy, Campbell, Velez and Matos, the foreperson) testified that they did not see the video or observe anyone else viewing it. None of them recalled the video or anything about Brownie Lopez's past being discussed in the jury room during deliberations or elsewhere. Similarly, the two alternate jurors had not observed or discussed anything regarding the Lopez video or his past criminal history.

Conclusions of law

As a general rule, a jury verdict may not be impeached by probes into the jury's deliberative process. See People v. Brown, 48 N.Y.2d 388, 423 N.Y.S.2d 461, 399 N.E.2d 51 (1979). However, a showing of improper influence provides a necessary and narrow exception to this general proposition. Id. at 393, 423 N.Y.S.2d 461, 399 N.E.2d 51. Policy considerations underlying the general rule against impeachment of a jury's verdict must be balanced against defendant's fundamental right to trial by a fair and impartial jury. In that context, evidence of an outside influence on the jury is held to constitute an exception to the general rule. See Mattox v. U.S., 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892) (during deliberations, jurors read a newspaper article containing opinions about the quality of the evidence and the defendant's guilt and the defendant demonstrated that those overt extraneous influences were shown to have affected the objective evidence before the jury).

Improper influence includes even "well intentioned jury conduct which tends to put the jury in possession of evidence not introduced at trial." People v. Brown, 48 N.Y.2d 388, 393, 423 N.Y.S.2d 461, 399 N.E.2d 51. Criminal Procedure Law (CPL) section 330.30 provides that a Court may set aside a verdict, prior to sentencing, if there occurred improper conduct by a juror or 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. The defendant bears the burden on a motion under CPL section 330.30. In assessing misconduct, the particular facts must be examined to determine the nature of the material placed before the jury and the likelihood of prejudice would be engendered. People v. Clark, 81 N.Y.2d 913, 914, 597 N.Y.S.2d 646, 613 N.E.2d 552 (1993).

YouTube is a free and popular video sharing service with millions of users. Together with the proliferation of cellphone cameras, YouTube has enabled live footage of criminal activity to be part of a community's everyday experience. Video now accompanies traditional print media in their online editions and is reproduced on television websites and through streaming services. It is to be expected that this phenomenon will continue and increase. In the twenty-first century there is no way to guarantee that jurors will avoid all contact with outside information related to a case. The question is whether that contact likely tainted the jurors' perception and affected their verdict.

See generally R. Kyncl, Streampunks:YouTube and the Rebels Remaking Media, (Harpercollins 2017).
--------

Defendant's claim of misconduct revolves around a 2014 YouTube video showing Brownie Lopez punching another man and causing him to fall to the ground. Brownie Lopez was also charged with acting in concert with the defendant and attempting to punch the victim in the head in this case. The facts gleaned from the post-trial hearing are these: two of the jurors (Marrero and Zhang) testified that they had either seen the YouTube video or live TV coverage of the event in the media prior to trial. During jury selection, however, neither juror connected the name "Brownie Lopez" to the male depicted in the video. (Even the defense does not allege that the jurors must have known of this connection during jury selection and failed to disclose it.) At some point during the trial Marrero and Zhang recalled discussing the video with Lopez. Although Lopez denied this, her testimony was not credible. Marrero and Zhang may have realized they had seen the video after Lopez shared it with them. Both Marrero and Zhang testified that they began to wonder if the individual in the video could be the separately apprehended individual, Brownie Lopez, afterseeing the arrest photo, and the discussion with Lopez took place then.None of the other jurors recalled having a discussion about a video concerning Brownie Lopez. A few remembered that a juror remarking that Brownie Lopez had a "past" during deliberations, but all said they were unaffected by it. Several jurors recalled that Brownie Lopez's arrest photograph was turned face down on the table in the deliberations room so that the jury would only focus on the evidence presented at the trial regarding the defendant Esteban Santana.

Defendant unpersuasively argues that the jury's decision to turn over the arrest photo undermined the exculpatory nature of the photo and thus worked to the defendant's detriment. The only exculpatory inference presented by the photo is a difference in the appearance of a jacket or sweatshirt worn by Brownie Lopez from the victim's description of this item. The photo was taken around the time of arrest and generally matched the description given by the victim. The photo was primarily inculpatory, as the jurors recognized. In addition, according to their consistent testimony, the jurors wisely decided that their main concern was not what Brownie Lopez did, but whether the defendant Esteban Santana had been proven guilty beyond a reasonable doubt.

The real issue here is whether the jurors who saw the video and others who may have heard about it adequately discounted it during their deliberations. As the defense argues, this analysis cannot ignore the ability of a powerful video to have a subtle or unconscious impact on the jurors. Inherent prejudice to a defendant if significant enough can warrant a new trial although no juror states it was determinative of the vote he or she cast. See People v. DeLucia, 20 N.Y.2d 275, 280, 282 N.Y.S.2d 526, 229 N.E.2d 211 (1967) ; People v. Redd, 164 A.D.2d 34, 37, 561 N.Y.S.2d 439 (1st Dept.1990) However, that potential must be assessed in light of whether the jurors' testimony was consistent; whether their views appeared to be colored by the outside information; how relevant and compelling the outside information was to the central question of guilt; whether the overall evidence of guilt was otherwise substantial and finally, were there clues to answer these questions in the testimony concerning the deliberations process.

If jurors can never cast aside any outside "baggage" they bring to deliberations, be it a prejudice, a preconceived notion or exposure to media coverage, the jury system is destined to fail. In the digital age, all these questions will arise with greater frequency. See, e.g. T. Fallon, Mistrial in 440 Characters or Less, 38 Hofstra L.Rev. 935 (2010). As has been noted, jurors do not live in capsules. See B. Gershmann, Contaminating the Verdict: The Problem of Jury Misconduct, 50 SDLRev. 322 (2005). Even a routine Google search for directions to a courthouse can call up information on cases to be heard on that day in court. The subject heading is visible and the reader has seen information about a case, completely without intention. The trial court's analysis of juror misconduct in the digital age must therefore remain a careful two part test: not just whether the juror came into contact with outside information about the case but also whether the information likely influenced any juror's verdict.

This was not a situation where the jury set about to conduct an experiment or test hypotheses as in the line of cases where jury verdicts were overturned. See e.g. People v. Stanley, 87 N.Y.2d 1000, 642 N.Y.S.2d 620, 665 N.E.2d 190(1996). The video concerned an absent co-defendant's conduct in another matter that was prosecuted. The information did not bear directly on the facts of the present case of the defendant's innocence or guilt of the charged crimes. Cf. People v. Marsden, 130 A.D.3d 945, 16 N.Y.S.3d 563 (2d Dept.2015). Accepting the testimony that three or possibly more of the jurors saw the video before or during the trial, none of the jurors said the video or outside information about Brownie Lopez influenced his or her verdict in any way. More importantly, jurors were consciously aware that their verdict should not be swayed by any outside information and they therefore structured their deliberations to avoid it. Several jurors credibly described how a discussion of the co-defendant's past during their deliberations was truncated at its inception. This jury correctly recognized that their focus should be solely on the defendant before them and deliberately undertook to disregard the outside information and not permit it to sidetrack the process.

Contrary to People v. Gee, 57 Misc.3d 999, 65 N.Y.S.3d 642 (Sup.Ct.Bx.Co.2017), a case cited by the defendant, no juror here tried to employ outside knowledge to sway wavering jurors on a specific contested aspect of the case. No juror used outside research or sources to persistently advocate for the defendant's guilt. See also People v. Plowden, 150 A.D.3d 896, 55 N.Y.S.3d 74 (2d Dept.2017). After a single comment about Brownie Lopez's "past"—which no one remembered exactly—any consideration of the absent co-defendant's background ceased. The jury knew his previous actions were not central to the issue of defendant Santana's guilt, of which there was ample evidence. Not every misstep by a juror rises to the level of misconduct warranting the setting aside of the verdict. See People v. Clark, 81 N.Y.2d 913, 597 N.Y.S.2d 646, 613 N.E.2d 552 (1993).

The defense urges the court to go behind the jurors' testimony at the hearing to presume a bias was present. The inquiry at the 330.30 hearing, where the jurors were under oath, was very much akin to a voir dire examination during which jurors are asked whether they can set aside feelings or experiences to follow the law. These jurors all credibly testified that they were not influenced by the video or information about Brownie Lopez's past. Juror Marrero's lone remark that "[the video] certainly didn't help" must be interpreted in light of his snarky demeanor on the witness stand. This one comment was more of a flip one-liner to the defense lawyer than a reflection of true bias affecting his verdict.

In conclusion, if there were any prejudice created through the introduction of information about Brownie Lopez, the jurors were able to put it aside successfully. While jurors may not always realize what affects their verdict, in this case they made a very conscious and deliberate choice to counter any bias occasioned by the video or just knowing that Brownie Lopez had a [criminal] past. The defense has not met their burden under CPL § 330 of demonstrating that a substantial right of the defendant may have been affected by improper jury conduct. The deliberations were not tainted, and the verdict will stand.

The defendant's motion is denied. This shall constitute the decision and order of the court.


Summaries of

People v. Santana

Supreme Court, Bronx County, New York.
Dec 4, 2017
67 N.Y.S.3d 430 (N.Y. Sup. Ct. 2017)
Case details for

People v. Santana

Case Details

Full title:The PEOPLE of the State of New York, Plaintiff, v. Esteban SANTANA…

Court:Supreme Court, Bronx County, New York.

Date published: Dec 4, 2017

Citations

67 N.Y.S.3d 430 (N.Y. Sup. Ct. 2017)
58 Misc. 3d 581