People v. Oddy

• Decision Date: 02 July 1962
• Parties: The PEOPLE of the State of New York, Respondent, v. Gary W. ODDY, Appellant, and Harry L. Barr, Defendant. The PEOPLE of the State of New York, Respondent, v. Gary W. ODDY, Defendant, and Harry L. Barr, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 983

229 N.Y.S.2d 983

16 A.D.2d 585

The PEOPLE of the State of New York, Respondent, v. Gary W. ODDY, Appellant, and Harry L. Barr, Defendant.

The PEOPLE of the State of New York, Respondent, v. Gary W. ODDY, Defendant, and Harry L. Barr, Appellant.

Supreme Court, Appellate Division, Fourth Department.

July 2, 1962.

Louis R. James and Philip A. McBride, Warsaw, for appellant Gary W. Oddy. Philip A. McBride, Warsaw, of counsel.

Norman J. Scott and Charles R. Newman, Arcade, for appellant Harry L. Barr. Norman J. Scott, Arcade, of counsel.

Julian R. Hanley, Warsaw, for respondent.

Before WILLIAMS, P. J., and BASTOW, GOLDMAN, HALPERN and HENRY, JJ.

GOLDMAN, Justice.

Appellants, 16 years of age, were committed to the Wyoming County jail upon the charge of grand larceny first degree for the alleged theft of an automobile. While there detained they were the only prisoners lodged on the second floor of the jail. During the month they were there they had sprung the lock on their cell and roamed about on the second floor almost at will when no guards were present. According to their statements, they conceived a plan of escape which involved the overpowering of the guard who brought them their food. In the carrying out of this plan appellant Oddy attacked the guard, struck and wounded him with his fist, in which he held a coil spring from his bed, and nine days later the guard died. Appellants were indicted for felony murder, in violation of section 1044, subdivision 2 of the Penal Law, in that while engaged in an attempt to commit the felony of escape from jail, in violation of section 1694 of the Penal Law, they killed the guard. The jury returned a verdict of guilty of murder, first degree, with a recommendation, and both appellants were sentenced to life imprisonment.

There are two reasons why these convictions must be set aside and new trials ordered. The first deals with the selection of an alternate juror who ultimately replaced a juror who became ill, and the second with the refusal of the court to charge lesser degrees than first degree murder.

After the first twelve jurors had been chosen, the attorneys proceeded to select two alternate jurors. One Stockweather, who later replaced the ill juror, was selected as one of the alternates. On the voir dire it was revealed that he had been a deputy sheriff for 9 years and a prison guard in Attica State Prison for 30 years. The following took place upon his examination by the District Attorney:

'Q. Do you have any opinion in your mind now as to the guilt or innocence of these Defendants?

'A. Well--I have some, I think, yes.

'Q. You feel it such as might interfere with your judgment on the case?

'A. Well, let me explain it this way: I have a nine years deputy sheriff work and I got thirty years in Attica prison. I might be affected. I would try to go by the evidence, to be honest as I could be.

'Q. You feel you do have something in your mind which would require more evidence to reach a decision?

'A. I am not positively sure.

'Q. We all should be naturally. That doesn't quite answer our problem, Mr. Stockweather. Do you feel that you have such a state of mind that it would require more evidence for you to reach a decision in this case than if that didn't exist in your mind?

'A. Well, that is the way I feel, yes. I think that I would have to be very sure of the evidence--the evidence would have to be very strong.

'Q. That is the only way I can ask you. You feel it would take more evidence to convince you than if it were some other case?

'A. I would hate to commit myself. As I said, I would be very honest about it. I would go with the evidence. But I am just a little skeptical--I don't--but----'

After considerable more examination as to his state of mind he was asked:

'Q. That is not the question I am asking. I am speaking about this hesitation in your mind, your doubt. You think there is a possibility at all, is that what you are trying to tell me, in spite of yourself, your background might come into the picture so the net result would be you would required perhaps a little more or possibly a little less evidence than another juror with that background. Is that it?'

to which he answered:

'A. Well, that could be possible.'

It is not clear from the record whether or not at this point, appellants' attorneys, who had been assigned to represent them, had exhausted their peremptory challenges to alternate jurors, although one of them upon argument of the appeal stated that there had been such exhaustion, and this statement was not contradicted by the District Attorney. The court indicated that they should continue the examination of the juror and stated that 'I feel there is not proper cause there'. At this juncture the motion to excuse for cause should have been granted. Ultimately after more questioning Mr. Stockweather stated he would do his best and would do what he felt was right in arriving at a verdict. Finally all of the attorneys indicated that the alternates were satisfactory. The statement of Mr. Justice Clark in Irvin v. Dowd, 366 U.S. 717, 728, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751 that 'No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one's follows is often its father. Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight,' certainly seems pertinent here. Although this prospective juror ultimately declared, perhaps in all good conscience, that he would decide the fate of these appellants on the evidence, the influence he felt and so persistently expressed from his 39 years of experience as a guard should have made it apparent that it would be difficult, if not impossible, as indicated by his answers, for him to fight detachment from his past.

Actual bias is defined by section 376 of the Code of Criminal Procedure as 'the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that such juror cannot try the issue impartially and without prejudice to the substantial rights of the party challenging'. In People v. Fernandez, 301 N.Y. 302, 319, 93 N.E.2d 859, 867 it was held that although jurors might sit if under section 377(8) of the Code of Criminal Procedure they would conscientiously return a verdict of guilty notwithstanding their opinions as to capital punishment they could be excused for 'implied bias' under section 376(2) if in the opinion of the court they could not try the issues impartially. As a matter of discretion this prospective juror, in view of his definite statements of partiality and bias, should have been excused. (See People v. Genovese, 10 N.Y.2d 478, 481, 482, 225 N.Y.S.2d 26, 28, 29, 180 N.E.2d 419, 420, 421; Tumey v. Ohio, 273 U.S. 510, 522, 47 S.Ct. 437, 71 L.Ed. 749.)

The trial judge charged that the only possible verdicts the jury could return 'are guilty of murder in the first degree; or not guilty of murder in the first degree'. Requests were made for a charge as to a lesser crime and particularly to charge manslaughter in the second degree. We believe that the denial so to charge was error. People v. LaMarca, 3 N.Y.2d 452, 165 N.Y.S.2d 753, 144 N.E.2d 420 involved the kidnapping of a child and his abandonment from which death ensued. The court held that the defendant could not terminate or abandon the kidnapping and thus reduce the gravity of the offense by leaving an infant in a place where there was little likelihood that he would be found alive. Chief Judge Conway restated the applicable test at page 464, 165 N.Y.S.2d at page 763, 144 N.E.2d at page 427 as follows:

'This court has not ruled that every defendant charged with felony murder is entitled to a charge on the lesser degrees of homicide. A defendant may not insist upon such a charge being given unless the evidence spells out some form of common-law homicide.'

In applying this test we must look to the evidence and in our view of it, it may spell out common-law homicide. Manslaughter in the first degree should have been charged under the proof. Subdivision 2 of section 1050 of the Penal Law defines that felony as homicide 'when committed without a design to effect death: * * * 2) In the heat of passion, but in a cruel or unusual manner, or by means of a dangerous weapon.' The initial blow struck by appellant Oddy might well have been in furtherance of the felony of attempt to escape. However, when the guard fell to the floor and the commotion was heard by those on the first floor, Oddy again started to beat him in order to silence his outcry. At this point whether the character of the assault changed because his mental state was then aggravated and may have fallen within the requisite 'passion' should have been presented to the jury. In any event the question of whether the continued assault was a separate crime or a part of the original felony of attempt to escape, which may well have been abandoned at that point, was question of fact for the jury. A further jury question existed as to whether the coil spring used in the way defendants used it was in fact a dangerous weapon. People v. Vollmer, 299 N.Y. 347, 87 N.E.2d 291 holds that fists alone do not constitute a dangerous weapon. In People v. Adamkiewicz, 298 N.Y. 176, 81 N.E.2d 76, an ice pick was held to be dangerous under section 1897 as was a piece of a baseball bat in People v. McPherson, 220 N.Y. 123, 115 N.E. 515. Brass knuckles fall per se into the same category under the above section (People v. Mogul, 204 Misc. 995, 128 N.Y.S.2d 667). Of course a bedspring is not in the same generic category standing apart from its use as the blackjack. The question is one of fact. In Lenahan v. People, 3 Hun 164, 165, affd. People v. Lenahan, 62 N.Y. 623 it was held that an indictment charging that the defendant ...