People v. Nelson

• Decision Date: 24 December 2014
• Docket Number: 2010-04848.
• Parties: The PEOPLE, etc., respondent, v. Joel NELSON, appellant.
• Court: New York Supreme Court — Appellate Division

125 A.D.3d 58
998 N.Y.S.2d 216
2014 N.Y. Slip Op. 09019

The PEOPLE, etc., respondent
v.
Joel NELSON, appellant.

2010-04848.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 24, 2014.

998 N.Y.S.2d 218

Lynn W.L. Fahey, New York, N.Y. (Alexis A. Ascher of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.

RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN and ROBERT J. MILLER, JJ.

Opinion

MILLER, J.

125 A.D.3d 59

The defendant was charged by indictment with the murder of Leo Walton and the attempted murder of Mark Maldonado. At trial, the People presented evidence demonstrating that Maldonado invited the defendant into the apartment that Maldonado and Walton shared, and that once inside, the defendant shot Walton three times in the back of his head, then kicked in Maldonado's locked bedroom door, and shot him four times. The defendant did not testify at trial, but his statements (including a written statement and an audio- and video-taped statement) were introduced into evidence at trial by the People. In his statements, the defendant said that, inside the apartment, Maldonado fired a gun at him, but that he dove to the floor, and the shots hit Walton. The defendant then retrieved a .38 caliber handgun from his waist, followed Maldonado to Maldonado's room, and fired four shots. The defendant presented a justification defense at trial, based on the account he gave in his statements to law enforcement officials. The jury, rejecting the defendant's justification defense, found the defendant guilty of murder in the second degree and assault in the first degree. The defendant now appeals, primarily arguing that he was deprived of his right to a fair trial under the federal and state constitutions because members of Walton's family

125 A.D.3d 60

were allegedly present in the courtroom wearing T–shirts that bore a photo of Walton and the words, “Remembering,” or “Remember,” and Walton's name.

Defense counsel first raised this issue to the trial court just prior to the prosecutor's summation, stating that “three members of the Walton family [were] sitting with shirts saying ‘Leo Walton,’ the deceased's photo, and it says ‘Remembering Leo Walton’ in clear view of the jury.” The trial court questioned the timing of defense counsel's application, stating that it had noticed that one female had worn a similar shirt on three previous occasions and that the subject spectators had been present in the courtroom prior to defense counsel's summation. Defense counsel replied that he did not believe that anyone had worn the shirts “before today.”

The trial court denied defense counsel's application to have the Walton family removed, or to have them change their T–shirts. The trial court described the subject T–shirts: “the shirts that they are wearing, which appears from my vantage point to be a white tee-shirt with an embossed or screened some kind of rectangle. And I made out it says ‘Remembering Leo Walton.’ ” The court stated that “[t]he family members of the deceased [were] being seated quietly, innocuously in the audience” and they had not “drawn attention to themselves nor [had] they drawn attention to the shirts.” The court concluded that the conduct of the Walton family was not “prejudicial” and did not “impact[ ] the defendant.”

998 N.Y.S.2d 219

After the jury returned its verdict, but before the defendant was sentenced, the defendant moved to set aside the verdict pursuant to CPL 330.30, arguing, inter alia, that he was entitled to a new trial since there was a danger that the jury had been influenced by the T–shirts worn by Walton's family. In support of the motion, which was argued and decided at the sentencing proceeding, defense counsel stated that “the verdict was possibly influenced by improper conduct; namely, that four members of the deceased's family sat quite close to the jury with tee-shirts with photos of the deceased and wording that said ‘Remember Leo Walton.’ And I believe that was an improper effort to elicit sympathy from the jury in deciding the case.” Defense counsel continued: “[c]ertainly, it's a public courtroom; members of the deceased's family are certainly entitled to appear.

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But I think when it gets to the point of a full body-length photo of the deceased, and ‘Remember Leo Walton’ at the stage when the jury is hearing summations, charge, and deliberating, that that then leads to the jury making a decision based on sympathy and not on the evidence.”

The prosecutor opposed the motion, stating that “[t]his was grieving family sitting in an open courtroom and listening politely and carefully to the evidence that their loved one was murdered.” The prosecutor stated that the family had been “extraordinarily composed [and] respectful ... throughout the entire process” and that at no time did anyone act to direct attention to the shirts.

The Supreme Court denied the defendant's CPL 330.30 motion. The court stated that “it would be appropriate to make a better record of what the shirt was. It was [a] white tee shirt with a silk screen with a picture of the deceased with some written language on it.” The court stated that the shirts “weren't inflammatory.” The court had “noticed that shirt” previously, but it “couldn't read what was written on it.” The court stated that the members of the Walton family “sat in the second row of the audience” and that the T–shirts were “not flauntily [sic] displayed in front of the jury, nor ... did any members of the family bring undue attention to [them].” The court further stated that “most of the members of the family had an outer garment on top of the tee-shirt” so that the jury “wasn't even capable of seeing the entire thing.” The court noted that “[w]hen counsel made the objection, [it] responded and made a record at that time indicating that [it] saw nothing wrong with those shirts.” The court concluded that the conduct of Walton's family had “not inflamed” the jury.

A criminal defendant's right to a trial by an impartial jury is guaranteed by both the federal and state constitutions (see U.S. Const, Sixth Amend; N.Y. Const., art. I, § 1 ). “The requirement that a jury's verdict must be based upon the evidence developed at the trial goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury” (Turner v. Louisiana, 379 U.S. 466, 473, 85 S.Ct. 546, 13 L.Ed.2d 424 [internal quotation marks omitted] ). “[O]ne accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial” (Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 56 L.Ed.2d 468 ).

In order to safeguard the constitutional guarantees of impartiality and to ensure that a jury's verdict is based solely

125 A.D.3d 62

on the evidence formally admitted as proof, courts go to great lengths to screen out prospective jurors that possess characteristics which may impact a juror's ability to be impartial (see CPL 270.20[1][b] ), to

998 N.Y.S.2d 220

prevent jurors from “ convers [ing] among themselves or with anyone else upon any subject connected with the trial” (CPL 270.40 ), to prohibit jurors from “read[ing] or listen[ing] to any accounts or discussions of the case reported by newspapers or other news media” (id. ), to restrict the admission of evidence that may affect the jury's ability to resolve the case on the evidence alone (see People v. Stevens, 76 N.Y.2d 833, 835, 560 N.Y.S.2d 119, 559 N.E.2d 1278 ; People v. Donohue, 229 A.D.2d 396, 398, 645 N.Y.S.2d 60 ), and to shield jurors from other “improper influence[s]” (People v. Brown, 48 N.Y.2d 388, 393, 423 N.Y.S.2d 461, 399 N.E.2d 51 ).

These safeguards, so scrupulously observed in every criminal proceeding, lose all purpose if the atmosphere in the courtroom itself affects the ability of the jurors to remain impartial. Indeed, a trial free from a “coercive ... atmosphere” is a “fundamental principle of due process [that] is well established” (Carey v. Musladin, 549 U.S. 70, 80, 127 S.Ct. 649, 166 L.Ed.2d 482 ; see Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 ; Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 ). It has long been recognized in this State that such an atmosphere of coercion may arise through the conduct of spectators: “[i]t is not to be tolerated that men [or women] should go into such a place and manifest their feelings, prejudices or passions, for the purpose of exerting an influence upon those who sit in judgment upon the rights of parties” (Conrad v. Williams, 6 Hill 444, 452 ).

However, “[t]he safeguards of juror impartiality ... are not infallible [and] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote” (Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 ). “Due process means a jury capable and willing to decide the case...