People v. Jacobson

• Decision Date: 28 May 1981
• Citation: 109 Misc.2d 204,440 N.Y.S.2d 458
• Parties: The PEOPLE of the State of New York v. Howard JACOBSON, Defendant.
• Court: New York Supreme Court

Page 458

440 N.Y.S.2d 458

109 Misc.2d 204

The PEOPLE of the State of New York v. Howard JACOBSON, Defendant.

Supreme Court, Trial Term,

Bronx County, Part 40.

May 28, 1981.

Mario Merola, Dist. Atty., Bronx County by Alan D. Marrus, Asst. Dist. Atty., for the People.

Bennett M. Epstein, New York City, for defendant; Clark, Wulf, Levine & Peratis by Ramsey Clark, New York City, on the hearing.

KAPELMAN, Justice:

This motion was brought by the defendant based on Criminal Procedure Law § 440.10(1)(f) seeking a vacatur of the verdict of April 12, 1980 and a new trial. The basis for this motion is the conduct that allegedly occurred during the jury's deliberations. Procedurally, the defendant also moves for a change of venue to New York County.

The request for change of venue must be the first issue this Court addresses. The defendant does not claim that this Court would not be fair, nor does he claim that the Court would possibly be a material witness. Compare, People v. Rodriguez, 14 A.D.2d 917, 918, 221 N.Y.S.2d 532 (2d Dept. 1961). Moreover, it would also appear that the judge who presided over the trial, as well as the deliberations, should logically be the one to hear any issue that relates to those proceedings. Finally, it must be noted that the defendant requested at oral argument that this part of his motion be waived, should this Court rule in his favor on his substantive claims. This failure to rely on this contention unless his motion fails on its merits points up the intrinsic weakness of the motion for change of venue. The motion is denied.

The defendant's motion also addresses alleged conduct during the jury's deliberations that, he claims, denied him a fair trial. Affidavits of jurors dated May, 1980 and November, 1980 were submitted to the Court on December 22, 1980. Opposing affidavits of representatives of the Office of the District Attorney who interviewed those jurors contradicted various facts asserted in the earlier ones. An affidavit of an investigator who interviewed a court officer was then submitted by the defendant, and the District Attorney later submitted an affidavit from that officer dated February 19, 1981. On March 12, 1981, defendant submitted his reply memorandum of law. Oral argument was had before this Court on March 18, 1981.

Specifically, the defendant raises the following plaints: (1) intimidation of jurors through the alleged use of obscenities, epithets and the slamming of fists; (2) the alleged refusal of the foreman to report to the court that the jury was deadlocked; (3) the alleged throwing of a chair by one juror; (4) alleged inaction of a court officer when he heard a loud noise and interrupted deliberations in the belief that someone may have required medical attention; (5) the alleged use of notes by one of the jurors. This Court, after a review of the pertinent case law, shall address these contentions collectively as well as ad seriatim.

The rule that statements by jurors may not be used to impeach a verdict once the jury has been discharged reflects the reluctance of courts to inquire into the process of deliberation. Stein v. New York, 346 U.S. 156, 178, 73 S.Ct. 1077, 1089, 97 L.Ed. 1522 (1953); McDonald v. Pless, 238 U.S. 264, 267-69, 35 S.Ct. 783, 784-785, 59 L.Ed. 1300 (1915); Mattox v. United States, 146 U.S. 140, 148, 13 S.Ct. 50, 52, 36 L.Ed. 917 (1892). This rule also serves to enforce several public policies. Thus, it is designed to discourage the harassment of jurors by losing parties. The rule thereby reduces incentives for jury tampering. It also fosters open discussion among jurors in their deliberations. It clearly promotes a verdict's finality and maintains the validity of the jury as a judicial decision-making body. Stein v. New York, supra, 346 U.S. at 178, 73 S.Ct. at 1089; McDonald v. Pless, supra, 238 U.S. at 267-68, 35 S.Ct. at 734; Mattox v. United States, supra, 146 U.S. at 147-51, 13 S.Ct. at 52-53; 8 Wigmore, Evidence, §§ 2349, 2352-2354 (McNaughton rev. 1961).

The rule, however, is subject to an exception where there has been an improper, outside influence on jury deliberations. The exception does not encompass the ways the individual juror was influenced or the effect on mental processes. Stein v. New York, supra, 346 U.S. at 178, 73 S.Ct. at 1089; Mattox v. United States, supra, 146 U.S. at 148-49, 13 S.Ct. at 52-53, see, Federal Rules of Evidence, Rule 606(b); American Bar Association Project on Minimum Standards for Criminal Justice, Approved Draft, Trial by Jury, § 5.7. Evidence of discussions among jurors, intimidation or harassment of one juror by another is, therefore, within the rule. United States v. Eagle, 539 F.2d 1166, 1170 (8th Cir. 1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1146, 51 L.Ed.2d 563 (1977); Government of the Virgin Islands v. Gereau, 523 F.2d 140, 151 (3rd Cir. 1976), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976).

Thus, a juror's statements that he was influenced by improper remarks of fellow jurors and that he assented to the guilty verdict but did not believe in the defendant's guilt were held insufficient to impeach the verdict where the juror was polled and affirmed his opinion in open court. Klimes v. United States, 263 F.2d 273 (D.C.Cir.1959) (Burger, J.). Juror pressure is "indigenous to the jury system." United States v. Stoppelman, 406 F.2d 127, 133 (1st Cir. 1969); accord, United States v. Grieco, 261 F.2d 414 (2d Cir. 1958); United States v. Kohne, 358 F.Supp. 1046 (W.D.Pa.1973), aff'd, 487 F.2d 1395 (3rd Cir. 1973).

Outside influences which have served to impeach verdicts include prejudicial publicity injected into the deliberations, Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954); United States v. McKinney, 429 F.2d 1019, 1025, 1030 (5th Cir. 1970), cert. denied, 401 U.S. 922, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971), or comments by court personnel on the merits of the case. Parker v. Gladden, 385 U.S. 363, 364-65, 87 S.Ct. 468, 470-471, 17 L.Ed.2d 420 (1966).

The New York Court of Appeals has similarly narrowly construed this exception to the rule prohibiting impeachment of a jury verdict. The Court recognized that "scarcely any verdict might remain unassailable, if such statements were admissible". People v. DeLucia, 20 N.Y.2d 275, 278, 282 N.Y.S.2d 526, 229 N.E.2d 211 (1967). The Court observed that "Articulate jurors may intimidate the inarticulate, the aggressive may unduly influence the docile". Id. Nonetheless, the Court allowed that an illegal viewing of the crime scene coupled with a re-enactment of the alleged crime warranted a new trial without proof of how the unauthorized visit may have influenced the individual jurors. Id. at 280, 282 N.Y.S.2d 526, 229 N.E.2d 211.

In People v. Ciaccio, 47 N.Y.2d 431, 418 N.Y.S.2d 371, 391 N.E.2d 1347 (1979), a new trial was ordered because the court clerk had entered the jury room during stalemated deliberations and falsely told the jurors that the Judge had stated that a lot of time and money were invested in the case and that they should keep deliberating. To the same effect is People v. Rivera, 26 N.Y.2d 304, 307, 310 N.Y.S.2d 287, 258 N.E.2d 699 (1970), wherein the jurors may have seen that the defendant was charged with similar crimes not admissible in the case for which he was on trial. See also, People v. Rosario (Crim.Ct.Bx.Cty.) (N.Y.L.J. 5/15/81, p. 14, col. 2).

This exception was also construed to include performing an experiment on one's own and reporting the results back to the jury. People v. Brown, 48 N.Y.2d 388, 423 N.Y.S.2d 461, 399 N.E.2d 1 ^* (1979). In each of the above cases, the limited exception either facially warranted a new trial, or prejudice was demonstrated by objective facts as they impacted upon the particular trial. This court is obliged, therefore, to follow a similar analysis. It is also mindful that, upon a motion to vacate a judgment, the defendant must bear the burden of establishing his contention by clear and convincing evidence. People v. Weiss, 19 A.D.2d 900, 244 N.Y.S.2d 914 (2d Dept. 1963).

The allegations raised by the affidavits involve neither third-party information improperly introduced into the deliberations, nor any objectively demonstrated defect that does not depend on the mental processes of jurors. Each and every complaint, therefore, falls within the prohibition of the general rule. For all the reasons and policies that the rule was created to safeguard, this Court adheres to that rule.

But other reasons compel this conclusion. The policy underlying the finality of a verdict is reinforced by the practice of polling the jury after the foreman states the verdict. When the verdict as to Jacobson was returned, the jury was formally polled, and everyone declared his or her assent. This procedure provided each juror the opportunity to speak up and/or dissent. See, United States v. Schroeder, 433 F.2d 846, 851 (8th Cir. 1970), cert. denied, 401 U.S. 943, 91 S.Ct. 951, 28 L.Ed.2d 224 (1971). The time for post-verdict doubts had passed. Criminal Procedure Law § 310.80. The tardiness of the affidavits and the way in which at least one was procured--evidently initially through the defendant's paramour who fled with him on his escape from prison--emphasize the logic underlying the finality of a polled jury.

The chronology of the events also militates against the defendant's contention that some jurors changed their votes out of fear. Over the course of five days of deliberation, the jury returned with requests for readbacks, requests for instructions, requests for exhibits and an acquittal of defendant Jacobson's co-defendant. The jury was obviously interacting. It returned with one "deadlock" note as to the defendant's guilt or innocence. With respect to the time frame immediately preceding the verdict against the defendant, however, the record is telling:

                11:27 a.m.  Readback of testimony of Leslie Hammond
                            in response

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