People v. Tucker
| Decision Date | 22 December 1981 |
| Citation | 55 N.Y.2d 1,447 N.Y.S.2d 132,431 N.E.2d 617 |
| Parties | , 431 N.E.2d 617 The PEOPLE of the State of New York, Respondent, v. Samuel TUCKER, Also Known as Henry Perry, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
When there is a claim that repugnant jury verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury. Review of the entire record in an attempt to divine the jury's collective mental process of weighing the evidence is inappropriate.
Defendant was convicted on two counts of robbery and one count of possession of a loaded handgun. He was acquitted on two other counts of robbery. Defendant proposes that if all the verdicts were reviewed, it would be clear that the jury acted inconsistently and that the trial court should have vacated the two robbery convictions in addition to the possession conviction that was vacated.
The essence of the prosecution's case was that defendant, his brother Willie, and another man entered the house of Ann Johnson and robbed her at gunpoint. Johnson identified defendant as the one who wielded the gun during the robbery. Police Officer Martin Lauchlan was on patrol when he saw three men run out of Johnson's house, followed by a woman screaming for help. Lauchlan gave chase and managed to arrest Willie, who was found to have a loaded revolver in his front pocket. Willie provided defendant's name and stated that the defendant had placed the gun in his pocket while they fled Johnson's residence. The defendant was subsequently arrested at his home, where he volunteered the statement "You ain't got nothing on me, you got the gun from Willie." The seized revolver was tested and found operable.
Defendant presented evidence to show that it was not he, but the third man, who displayed the gun during the robbery and then placed it in defendant's brother's pocket.
Defendant was indicted as principal and accomplice on six counts, all of which were submitted to the jury. The counts charged and their material essential elements were:
Count Charge Elements
----- ------------------- ---------------------------------
1 Robbery, Forcibly Steals Armed with a
First Defree Property Deadly Weapon
2 Robbery, Forcibly Steals Used or
First Degree Property Threatened
Use of a
Dangerous
Weapon
3 Robery, Forcibly Steals Displayed What
First Degree Property Appeared to be a
Handgun
4 Robbery, Forcibly Steals Aided by Another
Second Degree Property Person Actually
Present
5 Grand Larceny, Steals Property Taken From
Third Degree Person of
Another
6 Criminal Possession Possession of
of Weapon, Loaded Firearem
Third Degree
Defendant was convicted on counts 3, 4 and 6, and acquitted on counts 1 and 2. He moved to set aside the guilty verdicts as repugnant to the acquittals on counts 1 and 2. As the jury had been instructed not to reach a verdict on count 5 if they convicted on any of the first four counts, no claim of repugnancy was made on the basis of that differing result.
Supreme Court, 96 Misc.2d 67, 409 N.Y.S.2d 105, ruled that there was no repugnancy between the verdicts on counts 1 through 4, but that a guilty verdict on count 6 was repugnant to acquittal on counts 1 and 2. The trial court reasoned that each of the robbery counts involved different elements so that one could be found guilty or not guilty on the various charges without any inconsistency. However, that court continued, it is illogical to acquit on the first two robbery counts, but find that the defendant possessed a loaded handgun at the time. Consequently, the jury's verdict was sustained except as to count 6, which was set aside. The Appellate Division, 79 A.D.2d 1117, 436 N.Y.S.2d 791, unanimously affirmed, without opinion.
On appeal, defendant argues that the jury's acquittal on the first two counts, when considered with the conviction on the sixth count, must have been based on a determination that no "forcible stealing" occurred. On this foundation, the verdicts on counts 3 and 4 would have to be rejected as an essential element of each crime would have been negated. Defendant's argument is not persuasive.
The problem of repugnant, or inconsistent, verdicts has long plagued the common law. Many jurisdictions precluded any judgment of conviction if the verdicts were inconsistent (see Comment, Inconsistent Verdicts in a Federal Criminal Trial, 60 Col.L.Rev. 999, 1001, and ns 12-15). American courts have divided on the question, with the majority accepting that the conviction is valid, albeit inconsistent (id., at pp. 1001-1002, and ns 16-18).
Whether verdicts are described as "repugnant" or "inconsistent" is substantively inconsequential and so the two terms are used interchangeably here. 1 The critical concern is that an individual not be convicted for a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all. Allowing such a verdict to stand is not merely inconsistent with justice, but is repugnant to it.
The genesis of repugnancy problems lies in the submission to the jury of alternative theories of guilt, in the form of different counts, based upon the same evidence. The problem often occurs when the jury convicts the defendant on one count and acquits on another, but the verdicts are illogical when viewed in light of the proof adduced. The difficulty stems from the jury's implicit finding that the essential elements of one crime were proven, while one or more of the same elements were not proven for the other crime. 2
There exist two approaches for determining whether jury verdicts are repugnant. 3 The first would have the court review the record in toto so as to consider all the evidence and discover the underlying basis of the jury's determination, whereupon the reviewing court can determine the logic or illogic of the verdicts and remedy the repugnancy when it exists. The second approach is more limited, looking to the record only to review the jury charge so as to ascertain what essential elements were described by the trial court; then, the assertedly inconsistent verdicts will be harmonized on the basis of the jury charge. Under this approach, a conviction will be reversed only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered (see Wax, 24 N.Y.L. School L.Rev., at pp. 740-742).
There is a compelling policy reason for preferring the second method of analysis. The first approach, by its very nature, requires the court to intrude into the jury's deliberative process by speculating on how the jury perceived and weighed the evidence. The court's reluctance to do so is generally reflected by limiting attacks on jury verdicts to showing improper influence, while excluding for purpose of impeachment "proof of the tenor of deliberations" (People v. Brown, 48 N.Y.2d 388, 393, 423 N.Y.S.2d 461, 399 N.E.2d 51). The problems of second-guessing are compounded by the possibility that the jury has not necessarily acted irrationally, but instead has exercised mercy (Dunn v. United States, 284 U.S. 390, 393-394, 52 S.Ct. 189, 190, 76 L.Ed. 356; People v. Berkowitz, 50 N.Y.2d 333, 346, 428 N.Y.S.2d 927, 406 N.E.2d 783). When the jury has decided to show lenity to the defendant, an accepted power of the jury (see Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356, supra ; Bickel, Judge and Jury--Inconsistent Verdicts in the Federal Courts, 63 Harv.L.Rev. 649, 651-652), the court should not then undermine the jury's role and participation by setting aside the verdict.
Thus, the record should be reviewed only as to the jury charge. 4 Even that review of the jury charge will be restricted in its scope. It does not contemplate a consideration of the accuracy...
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