People v. Ford

• Decision Date: 26 September 1989
• Citation: 546 N.Y.S.2d 313,145 Misc.2d 308
• Parties: The PEOPLE of the State of New York v. Darren FORD, Defendant.
• Court: New York Supreme Court

Page 313

546 N.Y.S.2d 313

145 Misc.2d 308

The PEOPLE of the State of New York v. Darren FORD, Defendant.

Supreme Court, Kings County Criminal Term, Part 15.

Sept. 26, 1989.

Kartagener & Stavis, Roger L. Stavis, New York City, for plaintiffs; Bruno, Goldberg & Ventura, of counsel.

Elizabeth Holtzman, Dist. Atty., Mark Hale, Asst. Dist. Atty., Brooklyn, for defendant.

PHILIP E. LAGANA, Justice.

Defendant moves to preclude his retrial on the ground that his constitutional right not to be placed twice in jeopardy would be violated.

Defendant is charged with the crimes of Murder in the Second Degree, Assault in the Second Degree and Criminal Possession of a Weapon in the Second Degree.

On November 10, 1987, the jury selection process commenced. After twelve jurors were selected, there remained only two prospective jurors. The prosecutor then used one of his peremptory challenges to remove the first potential alternate (hereinafter called Alternate # 1). Defendant then stated his displeasure with the second prospective alternate juror (hereinafter called Alternate # 2). The court then suggested to both parties that rather than calling up an entirely new panel and commencing an entirely new voir dire, each accept the unfavorable alternate jurors. This was agreed to and Alternate # 1 and Alternate # 2 were then seated. The jurors were then sworn and trial commenced.

On November 19, the court charged the jury. The next day, Alternate # 1 asked to be excused because it was Friday and he desired to attend religious services that evening. Simultaneously with this request, the court received a note from the jury stating that they were hopelessly deadlocked (Court Exh. 5, designated as Court Exh. 4). After much discussion during which it was pointed out that the alternates were originally not acceptable to either side, the court, over defendant's objection released Alternates # 1 and # 2. The court further directed the jury to continue to deliberate. At approximately 5:40 P.M. on November 20, 1987, the jury again stated that they were "far apart and it does not seem that we can ever come to a conclusion" (court Exh. 8). The court directed the jury to continue deliberations and eventually sequestered them for the evening.

On November 21, 1987, one of the jurors became ill and was unable to continue deliberating. The court asked defense counsel for a motion and defense counsel moved for mistrial. The court granted the mistrial motion.

It is now claimed that because the court illegally discharged Alternate # 1, retrial is barred. It is argued that had Alternate # 1 been available on November 21, 1987, he could have been substituted for the ill juror and thus a mistrial would not have been necessary. Defendant argues that his double jeopardy rights would now be violated by retrial because the mistrial was not based upon manifest necessity.

For the purposes of this decision, the court will assume that the discharge of Alternate # 1 was, in fact, illegal.

Ordinarily, when a defendant moves for mistrial, a waiver of the double jeopardy rights occurs and retrial is not barred (United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195, 57 L.Ed.2d 65; People v. Catten, 69 N.Y.2d 547, 554, 516 N.Y.S.2d 186, 508 N.E.2d 920; People v. Ferguson, 67 N.Y.2d 383, 388-389, 502 N.Y.S.2d 972, 494 N.E.2d 77). This is true "even if defendant's motion is necessitated by ... judicial error" (United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543). There is, however, one exception to the rule. Where a governmental agent's conduct intentionally "goads" the defendant into moving for a mistrial, or where the governmental agent's act is done in bad faith with intent that defendant move for mistrial, then retrial may be barred (Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416; Mortillaro v. Posner, 147 A.D.2d 701, 702, 538 N.Y.S.2d 311; People v. Holmes, 128 A.D.2d 727, 513 N.Y.S.2d 221, lv. denied, 70 N.Y.2d 648, 518 N.Y.S.2d 1040, 512 N.E.2d 566; People v. Sorenson, 118 A.D.2d 607, 608, 499 N.Y.S.2d 450, lv. denied 67 N.Y.2d 951, 502 N.Y.S.2d 1045, 494 N.E.2d 130 and 67 N.Y.2d 1057, 504 N.Y.S.2d 1033, 495 N.E.2d 366). This principle is equally applicable whether the governmental agent is a prosecutor or a judge/justice (United States v. Tateo, 377 U.S. 463, 468 n. 3, 84 S.Ct. 1587, 1590, n. 3, 12 L.Ed.2d 448; United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267; United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, supra ).

In this case at the time of the alleged "illegal discharge" the court could not have contemplated a mistrial. Indeed, jury deliberations continued in spite of the court having received a note that the jury was unable to reach a verdict. This indicates that the court's alleged illegal actions were not intended to "goad" defendant into a mistrial or that they were done in bad faith. There is no indication that the court had an improper motive for discharging Alternate # 1.

Defendant's motion for mistrial bars any claim of double jeopardy.

Even assuming the court's request for "a motion" constituted improper coercion causing defense counsel's mistrial motion, and the granting thereof was a declaration of a mistrial without defendant's voluntary consent, the result would not be different.

CPL 270.30 authorizes the court to select up to four alternate jurors after having chosen twelve jurors. It does not require the selection of any alternate juror but is permissive within the discretion of the court(People v. Ashley, 145 A.D.2d 782, 783, 535 N.Y.S.2d 763). Had the court not selected any alternate jurors and mistrial was necessitated by the illness of a deliberating juror, no double jeopardy rights would have been violated (Boisen v. United States, 181 F.Supp. 349; State v. Roberson, 225 La. 74, 72 So.2d 265; State v. Heathcoat, 119 N.J.L. 33, 194 A. 252; see also, 84 A.L.R.2d 1288, 1300 § 6[b]. Even where the court has an alternate available but chooses not to substitute the alternate for an ill juror, thereby necessitating a mistrial, defendant's double jeopardy rights would not be violated (Hameed v. Jones (CA2), 750 F.2d 154, cert. denied, 471 U.S. 1136, 105 S.Ct. 2677, 86 L.Ed.2d 695).

Therefore, nothing in the double jeopardy clause mandates the existence of alternate jurors or, if such be available, the substitution of an incapacitated juror. Indeed, it was not until Chapter 588 of the Laws of 1933, effective September 1, 1933, that substitution of alternate jurors was permissible in New York State. Thus, at the time that federal and state constitutional provisions against double jeopardy were enacted, substitution of alternates for deliberating jurors did not exist.

Further, manifest necessity existed at the time of the declaration of the mistrial. Substitution of an alternate juror for a deliberating juror is a questionable practice.

By Chapter 670 of the Laws of 1952, our Legislature, for the first time permitted substitution of an alternate during deliberation where a defendant consents. In People v. Ryan, 19 N.Y.2d 100, 278 N.Y.S.2d 199, 224 N.E.2d 710, the court held that the statute permitting oral consent to the substitution of an alternate juror for a deliberating juror was unconstitutional. The court found that when substitution occurs during deliberation there are thirteen persons who would be participating in deliberations, i.e., the twelve original jurors and the substituted alternate juror. The court also found that deliberations are an integral part of the jury verdict and thus, the jury verdict was the consensus of thirteen jurors and not twelve. As a policy matter, the court held that it would be difficult, if not impossible, for the original eleven jurors not to consider the argument of the ill juror. The substituted alternate would then not have the benefit of the incapacitated juror's argument. Thus, the court found that the jury verdict would have consisted of different thoughts by the ultimate deciding jury. This the court found to be violative of the New York State constitutional right to trial by only twelve jurors (see also, U.S. v. Lamb, (CA9), 529 F.2d 1153; State v. Wideman, 739 P.2d 931 [Hawaii]; State v. Lehman, 108 Wis.2d 291, 321 N.W.2d 212. People v. Burnette, 775 P.2d 583 [Colo] cf., U.S. v. Guevara (CA11), 823 F.2d 446; People v. Collins, 17 Cal.3d 687, 131 Cal.Rptr. 782, 552 P.2d 742, cert. denied, 429 U.S. 1077, 97 S.Ct. 820, 50 L.Ed.2d 796; State v. Miller, 76 N.J. 392, 388 A.2d 218; Smith v. State, 241 Ind. 311, 170 N.E.2d 794; Commonwealth v. Kalinowski, 12 Mass.App. 827, 429 N.E.2d 368, review denied, 385 Mass. 1102, 440 N.E.2d 1174; U.S. v. Phillips (CA5), 664 F.2d 971, cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354; U.S. v. Hillard (CA2), 701 F.2d 1052, cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318).

In Ryan 19 N.Y.2d 100, 278 N.Y.S.2d 199, 224 N.E.2d 710, (supra ), the prosecutor also argued that since defendant consented to the substitution, he had waived his rights to a jury of twelve. Without addressing the issue as to the appicability of the constitutional provision regarding jury waiver, the court held that since the waiver was oral and not in writing, it could not, in any event, constitute a waiver under the New York State Constitution (see, N.Y. Const., Art. I § 2).

Article I, Section 2, of the New York State Constitution permits the waiver of a jury when done in open court and consented to by the defendant personally and in writing. There appears to be two possible interpretations of this provision. One would be that the defendant has a choice, either jury trial or judge trial and nothing else. The history of this provision indicates that this would be a proper interpretation. Indeed, recently the court held that a defendant could not consent to a jury trial by ten jurors (People v. Lester, App.Div., 540 N.Y.S.2d 110)...