Anderson v. Miller
| Decision Date | 10 October 2003 |
| Docket Number | Docket No. 02-2451. |
| Parties | Henry ANDERSON, Petitioner-Appellant, v. David MILLER, Superintendent, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Edward S. Zas, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, NY, for Petitioner-Appellant.
Thomas M. Ross, Assistant District Attorney (Charles J. Hynes, District Attorney, Kings County, Jane S. Meyers and Leonard Joblove, Assistant District Attorneys, on the Brief) Brooklyn, NY, for Respondent-Appellee.
Before: VAN GRAAFEILAND, MINER, POOLER, Circuit Judges.
Henry Anderson appeals from the Judgment, dated June 19, 2002, of the United States District Court for the Eastern District of New York (Block, J.) denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Henry Anderson was convicted on March 13, 1996, after a jury trial in New York Supreme Court for the County of Kings, Justice Norman George presiding. Specifically, Anderson was convicted of: (1) one count of Criminal Sale of a Controlled Substance in the Third Degree, N.Y. Penal Law § 220.39[1] ("the first count"); (2) one count of Criminal Possession of a Controlled Substance in the Third Degree, N.Y. Penal Law § 220.16[1] ("the second count"); and (3) one count of Criminal Possession of a Controlled Substance in the Seventh Degree, N.Y. Penal Law § 220.03 ("the third count"). The court dismissed Anderson's conviction on the third court as a lesser inclusory count.
This was Anderson's second trial arising from charges that he and an accomplice sold heroin to an undercover police officer in Brooklyn, New York on May 7, 1995. The first trial resulted in a hung jury after four days of deliberation.
The conduct of the jury in the second trial was, to say the least, atypical. A verdict was finally accepted by the court after three days of deliberations. On the second day of deliberations, one juror, Juror No. 5, was excused after she sent a note to Justice George, which the judge read into the record as follows:
THE COURT: Counsel, with regard to the latest note from the jury, which has been shared with counsel and marked Court Exhibit number 10 and which states, , underscore. "I need not want to leave to care for my children and will never try to be a juror again in life, because my rights as a citizen do not matter in the spite of the law."
Juror No. 5 was excused with the consent of the parties and Justice George then directed the jury to begin deliberations anew with an alternate juror.
On the morning of the third day of deliberations, the jury returned with a verdict convicting Anderson on the first and second counts, but acquitting him on the third count. Shortly before rendering this verdict, the jury had requested, and received from Justice George, an explanation of the elements of conviction under the third count. Trial Transcript at 1040-42.
During polling of the jury, the following colloquy took place between Juror No. 11 and the court:
JUROR No. 11: I don't know.
THE COURT: Yes or no?
JUROR No. 11: I don't know.
THE COURT: You don't know? You don't know if that is your verdict?
JUROR No. 11: I don't know.
THE COURT: You don't know. All right, we'll send the jury back to resume your deliberations.
After the jury exited, Justice George denied defense counsel's motion for a mistrial. Trial Transcript at 1047-48. After a recess, and in response to another motion by defense counsel, Justice George announced that, should the jury return with the same verdict "the Court will rule that such a verdict is repugnant and the Court will, without necessity of counsel having to make the argument outside the presence of the jury, take the appropriate action to send the jury back to reconsidering Counts # 2 and # 3 and to render an appropriate, consistent non-repugnant verdict." Trial Transcript at 1053.
Shortly thereafter, the jury in fact returned with the same verdict, and was polled without incident. But Justice George immediately rejected the verdict, explaining to the jury that it could not convict on the second count, which requires possession with intent to sell, and acquit on the third count, which requires only possession. Justice George then directed the jury to continue its deliberations. Trial Transcript at 1058-62.
The jury once again returned shortly, and announced a verdict convicting Anderson on all three counts. The jury was polled, unanimously endorsed the verdict, and was released. But defense counsel urged the court not to accept the verdict:
Anderson argues — and the Respondent does not dispute — that Juror No. 2 and Juror No. 11 both independently approached defense counsel immediately after the trial in the hallway outside of the courtroom. Later the same day, Justice George reconvened court, with counsel for both sides present, and stated that Trial Transcript at 1072-73. The juror still present was Juror No. 11; the juror who had left was Juror No. 2. Juror No. 11 testified under oath, and was questioned by Justice George. We reproduce her testimony in full, omitting only Juror No. 11's actual name:
THE COURT: [Juror No. 11], you served as a juror in the case which we just recently completed; that being the People of the State of New York against Henry Anderson. And I received word that you wanted to speak with me.
[JUROR No. 11]: Yes.
THE COURT: Okay.
[JUROR No. 11]: I feel I that I was pushed into the testimony that I gave.
THE COURT: The testimony?
[JUROR No. 11]: Not the testimony, the verdict that I gave.
THE COURT: And who pushed you?
[JUROR No. 11]: The whole group; I felt threatened by them. One time a guy almost got in a fight. They was always yelling at me. I felt afraid; they wouldn't listen to my evidence, what I said. When I asked things to be listened to they said that they didn't want to listen to it; that it would just be for me. I have a letter right here, where I asked — I was gonna send it in to you to come home yesterday; they told me that I wasn't gonna leave, they weren't gonna allow me to leave and I was afraid.
THE COURT: Anything else?
[JUROR No. 11]: Also, today when we came up with our verdict there were five court officers at the door as well as this young lady in the green jacket. They had no right near our door. Somebody came up, they were leaving; I caught her jacket. Also I was just speaking to the lawyer and [Assistant District Attorney] Miss Guzman or Guzeman was standing there, listening.
Also, there was testimony that I had asked for and it was not read back in the manner that I had asked for it. So also — whether there could have been a change of mind or not, there was no way my mind could have been made, it was not read back in the manner it was asked for.
THE COURT: Any testimony that was requested by a note of the jury, the Court had read back, unless the jury subsequently sent a note saying disregard it. There were a number of notes that had that indication that they no longer requested that testimony, and I did not have that testimony read back for that reason.
[JUROR No. 11]: But what happened, your Honor, there was no better way to put exactly what I needed requested. Everytime you read it, you said we needed to word it differently; this is why we did that.
I knew exactly what I needed to hear, it was written on the first piece of paper, about Stoney; it was written the way I wrote it. You kept sending it back, of course they are going to write it differently, because they didn't hear what I heard. And I was trying to get something across what I heard. Of course they are going to write it differently, I'm not the one writing it.
THE COURT: Okay. Is there anything else you want to say?
[JUROR No. 11]: Not at this moment, but that I didn't find him guilty, that I was pushed into it. Not even intimidated, I felt threatened for my life.
THE COURT: All right. Thank you very much.
No request was made by counsel for any other questions to be asked of Juror No. 11, nor did counsel request to directly examine her. The "young lady in the green jacket" has not been otherwise identified in the record before us. Immediately after Juror No. 11's brief testimony, Justice George told defense counsel to Trial Transcript at 1082.
The "letter" to Justice George referred to by Juror No. 11 has been...
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