People v. Blyden

• Decision Date: 26 February 1981
• Parties: PEOPLE of the State of New York, Respondent, v. Herbert X. BLYDEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 492

436 N.Y.S.2d 492

79 A.D.2d 192

PEOPLE of the State of New York, Respondent, v. Herbert X. BLYDEN, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Feb. 26, 1981.

Leonard J. Klaif, Buffalo, for appellant.

Edward C. Cosgrove, Buffalo, for respondent; Kurt Sajda, Buffalo, of counsel.

Before SIMONS, J. P., and CALLAHAN, DENMAN, MOULE and SCHNEPP, JJ.

SIMONS, Presiding Justice.

Defendant has been convicted of first degree assault after a jury found that he struck Purcell "Rap" Brown in the jaw with a stapling gun. The victim was attacked, because of an earlier quarrel, while on his back on the ground repairing the muffler on his automobile. Defendant struck him with such force that Brown's jaw was fractured in several places and two of his teeth were broken and became imbedded in the metal stapler.

Defendant raises two issues requiring discussion. First, he contends that the court erred in denying his request to disqualify a juror for cause because the prospective juror admitted to some prejudice against minorities and defendant is black (as were the victim and most of the witnesses). Second, he contends that he was denied his statutory right to a speedy trial.

The conviction should be affirmed. Actual bias based on racial or ethnic prejudice is grounds for juror disqualification under section 270.20, subd. 1(b) of the Criminal Procedure Law, but the Trial Court did not abuse its discretion in this case in holding that the disqualification was overcome by the juror's expurgatory oath. Nor do we find the People responsible for a delay of over six months in bringing defendant to trial.

I

A criminal defendant is constitutionally entitled to a trial by jury (U.S.Const., Amend. VI; N.Y.Const. Art. I, § 2; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491), and the constitutional standard is not met unless the jury is impartial (Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751). By statute a juror is legally presumed biased and disqualified for cause for any of several enumerated reasons (see CPL 270.20, subd. 1), but we are concerned here only with the disqualification set forth in subdivision 1(b) of the statute. It provides that a prospective juror may be challenged for cause if

"(b) He has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial" (CPL 270.20, subd. 1(b)).

That condition, no less than relationship or other statutory impediment, disqualifies the prospective juror unless it is overcome. Unlike most of the other statutory grounds, however, in which the bias, though implied, is conclusive as a matter of law, disqualification because of the prospective juror's state of mind requires a judicial inquiry on the substantiality of the bias. If the court is satisfied that the prospective juror's state of mind does not preclude his impartial participation in the trial, it may deny a challenge for cause. Historically, the issue was tested by asking the juror to purge his disqualification by oath (see former Code of Criminal Procedure, § 376, subd. 2, and see People v. McQuade, 110 N.Y. 284, 300-301, 18 N.E. 156). Although the present statute does not contain such a provision, the Court of Appeals has held that disqualification for cause may be overcome if the prospective juror swears (1) that he believes that his state of mind or opinion will not influence his verdict and (2) that he can render an impartial verdict according to the evidence (see People v. Branch, 46 N.Y.2d 645, 415 N.Y.S.2d 985, 389 N.E.2d 467; People v. Biondo, 41 N.Y.2d 483, 393 N.Y.S.2d 944, 362 N.E.2d 576, cert. den. 434 U.S. 928, 98 S.Ct. 413, 54 L.Ed.2d 288; and see, People v. Culhane, 33 N.Y.2d 90, 350 N.Y.S.2d 381, 305 N.E.2d 469; People v. Wilmarth, 156 N.Y. 566, 568, 51 N.E. 277). By this oath the prospective juror is required not only to make a careful analysis of his feelings and then swear that they will not influence his decision, but he also tests his belief that he can render an impartial decision on the facts (see People v. Wilmarth, supra, p. 568, 51 N.E. 277). Without the juror's oath, actual bias is conclusively presumed. With it, a factual issue is created to be decided by the court in the sound exercise of its discretion (CPL 270.20, subd. 2; and, see People v. McQuade, 110 N.Y. 284, 18 N.E. 156, supra; People v. Casey, 96 N.Y. 115).

It is constitutional error to foreclose inquiry of a prospective juror concerning his possible racial or ethnic prejudice (see Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46), and in this case a prospective juror acknowledged that he had some "feelings against minorities". If such feelings prevented him from fairly weighing the evidence and rendering a verdict based only upon it, they would support a challenge for cause (see People v. Leonti, 262 N.Y. 256, 186 N.E. 693; People v. Rubicco, 42 A.D.2d 719, 345 N.Y.S.2d 624, affd. 34 N.Y.2d 841, 359 N.Y.S.2d 62, 316 N.E.2d 344; People v. Presley, 22 A.D.2d 151, 254 N.Y.S.2d 400, affd. 16 N.Y.2d 738, 262 N.Y.S.2d 113, 209 N.E.2d 729, see generally, Anno. Racial Prejudice of Prospective Jurors, 94 A.L.R.3d 15). Indeed, the Court of Appeals has held that it is not reversible error for a court, sua sponte, to dismiss a juror whom it finds disqualified because of racial bias (see People v. Decker, 157 N.Y. 186, 51 N.E. 1018).

We turn, then, to the facts of this case.

During its preliminary instructions the court invited any prospective juror who suspected that he or she harbored any prejudice to approach the bench, noting that "jurors are human and may have prejudices or sympathies" toward "certain groups". One of the veniremen, Mr. Dillsworth, did so. During subsequent questioning by the court and counsel in chambers, he stated that he was a construction worker, that his employment had been affected by affirmative action programs and, in fact, he had been displaced by a member of a minority group on one job because of the federal affirmative action requirements. He stated that although he did not have any hard feelings against "coloreds", "Indians" or "Mexicans", "when it comes to minorities" he had "some words with people", he got "uptight" and "flip(ped) his wig" against them. He thought "a lot of minorities made a lot more money than (he) did this year." Mr. Dillsworth stated that his complaint was against "the government", "minorities" and affirmative action programs. He stated he did not have any opinion about this case or defendant's guilt or innocence. When first asked if his experience would affect his decision in defendant's case, he answered, "I don't know. I don't know if it would or not, and I wouldn't want to jeopardize this guy's case because of that. That is why I came forward." On further questioning, Dillsworth stated that he did not think this background would influence his verdict, but he could not say so for sure. Finally, at the end of a relatively short voir dire, he was asked once more whether his experience would influence his verdict and he responded, "I don't think so." He stated unequivocally that he had not made up his mind on the case, and when asked whether he could put aside his feelings about minorities, keep an open mind and base his decision on the evidence before him, he replied three times to three different formulations of the question, "I think I could."

Thus, Mr. Dillsworth answered the questions required by the expurgatory oath. His answers were expressed in terms of "I think I could" or, in the case of one question worded negatively, "I don't think so." Undoubtedly, the expression "I think" connotes mental reservation to some but it has been held acceptable as the equivalent to a statement of belief (People v. Martell, 138 N.Y. 595, 600, 33 N.E. 838), and the law does not require that any particular words be recited if the prospective juror's answers, as here, are unequivocal (People v. Culhane, 33 N.Y.2d 90, 350 N.Y.S.2d 381, 305 N.E.2d 469, supra).

Certainly, it is preferable that a...