People v. Batticks

• Decision Date: 20 October 2020
• Docket Number: No. 41,41
• Citation: 135 N.Y.S.3d 34,159 N.E.3d 758,35 N.Y.3d 561
• Parties: The PEOPLE of the State of New York, Respondent, v. Jonathan BATTICKS, Appellant.
• Court: New York Court of Appeals Court of Appeals

35 N.Y.3d 561

159 N.E.3d 758

135 N.Y.S.3d 34

The PEOPLE of the State of New York, Respondent,

v.Jonathan BATTICKS, Appellant.

No. 41

Court of Appeals of New York.

October 20, 2020

OPINION OF THE COURT

Chief Judge DiFIORE This appeal by defendant presents the issue we found unpreserved on the appeal of his codefendant ( People v. Bailey, 32 N.Y.3d 70, 82, 85 N.Y.S.3d 377, 110 N.E.3d 489 [2018] )—namely, whether the trial court abused its discretion as a matter of law in giving the jury a curative instruction and forgoing a Buford inquiry ( People v. Buford, 69 N.Y.2d 290, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] ) of a sworn juror after her mid-trial exclamation that she was "very offen[ded]" by the repetitive use of a racial slur by Bailey's counsel while cross-examining the victim. Viewed in context, the record supports the trial court's findings that the juror's reaction was triggered by counsel's fifth and gratuitous use of the epithet, and provided no basis to indicate she was grossly unqualified. Since the entire incident unfolded in open court, a Buford inquiry of the juror was unnecessary, as the court was able to adequately assess that her outburst was not a transformative one and her sworn oath to be impartial remained intact. The court's remedy of admonishing the juror and counsel and issuing a carefully crafted curative instruction—which included a mechanism for any juror to advise the court if they could not be fair and impartial due to anything that occurred at trial—was not an abuse of its discretion. Thus, the Appellate Division order should be affirmed.

I.

Defendant Batticks and codefendants Wiggins and Bailey were tried jointly for their assault of Stephen Davis while the four men were incarcerated. Davis testified that a verbal dispute with Wiggins preceded the assault. Attempting to "goad" Davis during cross-examination ( Bailey, 32 N.Y.3d at 73, 85 N.Y.S.3d 377, 110 N.E.3d 489 ), Bailey's counsel used Wiggins' various verbal taunts verbatim, including asking Davis four times whether Wiggins had called him an "old [n-word]."¹ Davis, who recalled the younger Wiggins had called him an "old guy," also admitted Wiggins' may have used the slur, but said he viewed the slur as "just words."

After changing topics, Bailey's counsel revisited Wiggins' verbal provocations, and—for the fifth time—asked Davis whether Wiggins called him "an old [n-word]." Immediately, Juror Six stood and said: "Please, I am not going to sit here ... and [have] you say that again. Don't say it again or I'm leaving.... I find that very offensive." The court immediately reprimanded the juror for her "inappropriate" outburst and admonished counsel for repeating the question "a half dozen times," directing him to "[m]ove on" and stop "ask[ing] the same question over and over and over again." Bailey's counsel moved for a mistrial, claiming Juror Six was grossly unqualified because she was unable to separate the facts from her own "distaste" for the racial slur. The court found the "juror's reaction" was directed solely at "the number of times" the slur was used, not the legitimacy of the questioning. Batticks' counsel moved to strike the juror on the grounds asserted by Bailey.

Finding that Juror Six was not grossly unqualified, the court denied the defense motions and opted instead to issue the jurors a curative instruction—directing them that it was inappropriate to speak from the jury box, they may not form any opinion of guilt or nonguilt until the case is submitted to them, they were not to hold it against any party if they disliked or disapproved of questions or objections and, if any jurors felt they could not be fair and impartial due to something occurring during the trial, to inform a court officer, who would alert the court. The court advised counsel that Juror Six would be discharged if she told an officer she could not be fair and impartial. When Bailey's counsel stated that the racial epithet might "come up" in summation, the court cautioned him not to mention the word "fifteen times," adding it could "understand someone being offended by [the slur's] repeated use," since Davis acknowledged Wiggins may have used the word. The court reiterated that, "on its face," Juror Six's conduct did not indicate "she could not be [fair and impartial], only that she found the repeated use of the phrase distasteful" and refused Batticks' request to "specifically ask" Juror Six whether she could "be fair and impartial." The court issued the promised curative instruction to the jury, adding that it would "assume that all of you still believe that you can be fair and impartial."

All three defendants were convicted, upon the jury verdicts of second-degree assault. The jury acquitted them of the two top counts and deadlocked on the remaining counts. The Appellate Division affirmed the judgment against Batticks, finding "the trial court properly determined, based on its own observations, that no [ Buford ] inquiry was necessary" ( 165 A.D.3d 591, 84 N.Y.S.3d 769 [1st Dept. 2018] ). A Judge of this Court granted defendant leave to appeal ( 32 N.Y.3d 1202, 99 N.Y.S.3d 211, 122 N.E.3d 1124 [2019] ), and we now affirm.

II.

A defendant has a constitutional right to a trial by an impartial jury ( People v. Kuzdzal, 31 N.Y.3d 478, 483, 80 N.Y.S.3d 189, 105 N.E.3d 328 [2018] ; NY Const, art I §§ 2, 6 ; US Const 6th, 14th Amends), one chosen according to law and in whose selection the parties have participated ( Buford, 69 N.Y.2d at 297–298, 514 N.Y.S.2d 191, 506 N.E.2d 901 ). To protect this constitutional right, the legislature has enacted several procedural safeguards in CPL article 270 ( Buford, 69 N.Y.2d at 298, 514 N.Y.S.2d 191, 506 N.E.2d 901 ). After the jury is sworn, but before the rendition of the verdict, the court's authority to discharge an incompetent juror is set forth in CPL 270.35 and is narrowly circumscribed. In Buford, we set forth a framework for trial courts to determine, pursuant to CPL 270.35(1), whether a sworn juror must be discharged as grossly unqualified to serve due to facts unknown at the time of selection or where the juror has engaged in misconduct of a substantial nature. Given the gravity of a juror's oath, the court's removal of a sworn juror "places a greater burden upon the moving party" than if a prospective juror "was challenged for cause," and "is satisfied only when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict" ( Buford, 69 N.Y.2d at 298, 514 N.Y.S.2d 191, 506 N.E.2d 901 [internal quotation marks and citations omitted] ). As this Court has long recognized, "[t]he law prescribes the qualifications of jurors. The court cannot add to, or detract from them. It cannot itself select the jury, directly or indirectly. It cannot in its discretion, or capriciously, set aside jurors as incompetent, whom the law declares are competent ..." ( Hildreth v. Troy, 101 N.Y. 234, 239, 4 N.E. 559 [1886] ).

A sworn juror is not grossly unqualified and subject to removal "merely because [the juror] is irritated with one of the attorneys or disagrees with the way the evidence is presented" ( Buford, 69 N.Y.2d at 299, 514 N.Y.S.2d 191, 506 N.E.2d 901 ). Further, "a juror's declaration of being emotional about the case" is not equivalent to "a declaration of actual bias" or state of mind preventing the juror from deciding the case solely on the evidence, "as a declaration regarding emotions alone does not render a juror grossly unqualified" ( People v. Spencer, 29 N.Y.3d 302, 311, 56 N.Y.S.3d 494, 78 N.E.3d 1178 [2017] ).

We review a trial court's response to allegations of juror impartiality "for abuse of discretion because the trial judge, having the ability to continually observe the jury in court, is in the best position" to assess juror demeanor and bias and "to devise an appropriate remedy" ( Kuzdzal, 31 N.Y.3d at 485, 80 N.Y.S.3d 189, 105 N.E.3d 328 ). This unique vantage point demands that courts be afforded wide latitude in investigating allegations of juror bias and in making the "delicate" determination as to whether a juror has become grossly unqualified ( id. ). Under this flexible approach, not every allegation of juror misconduct warrants an intrusive Buford inquiry, and we have approved alternate procedures and ameliorative instructions when juror bias or partiality is not in doubt ( id. at 485–486, 80 N.Y.S.3d 189, 105 N.E.3d 328 ). In determining whether there are new facts to impugn the jury's original oath of impartiality or a need to investigate alleged juror misconduct, " ‘the court must consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source’ " ( id. at 485, 80 N.Y.S.3d 189, 105 N.E.3d 328, quoting United States v. Angulo, 4 F.3d 843, 847 [9th Cir. 1993] ). Thus, while a court "must investigate and, if necessary, correct a problem, it must also avoid tainting a jury unnecessarily.... In this endeavor, sometimes less is more" ( id. at 486, 80 N.Y.S.3d 189, 105 N.E.3d 328, quoting United States v. Cox, 324 F.3d 77, 88 [2d Cir. 2003] ).

In People v. Mejias, we approved of the court's issuance of a curative jury instruction without a Buford inquiry, where a juror's note suggested premature jury deliberations, as it did not indicate "the juror's impartiality was in doubt or that the juror had committed any misconduct" ( 21 N.Y.3d 73, 79, 966 N.Y.S.2d 764, 989 N.E.2d 26 [2013] ). We again deferred to the trial court's broad discretion in investigating factual issues of juror bias in Kuzdzal, approving of the court's preliminary step of eliciting the spectator's sworn testimony as to an allegation of juror misconduct—resulting in the court's threshold finding that the allegation was not credible—which allowed it to rule out the need for a Buford inquiry. Indeed, a Buford inquiry may not always be the best course of action in response to an alleged prejudicial...