Lead Opinion
OPINION OF THE COURT
In People v Buford (
I.
Defendants Miguel Mejias and Antonio Rodriguez were indicted for conspiracy in the second degree (Penal Law § 105.15) and criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1]) for their respective roles in a drug-trafficking operation involving the mоvement of 400 pounds of cocaine (valued at $14 million) from California to New York. Much of the evidence against defendants and their coconspirators was derived from wiretapped cell phone conversations. The intercepted calls were in Spanish and contained what the People describe as “cryptic and coded” language. At trial, the People called a special agent with the Drug Enforcement Agency, whom the trial court qualified as “an expert in the operation of high level narcotics trafficking and interpretation of language over cell phones.” The special agent explained that traffickers often use benign language in describing illegal activity, and interpreted for the jury the conversations engaged in by the various participants in the drug trafficking.
The trial evidence—which consisted of 87 wiretapped conversations between the purportеd ringleader, Carlos Loveras, and
Weeks later, when the truck containing the cocaine arrived in New York, the truck would not fit in the driveway of the stash house. The truck was then taken to a store parking lot, while Loveras and defendant Rodriguez attempted to find an alternative stash house. Mejias stayed behind with the truck. Meanwhile, members of the New York Drug Enforcement Task Force, who had been conducting the wireless surveillance and following the truck, staked out the store parking lot and observed Mejias pacing alongside the truck and, on one occasion, entering it. When Loveras and Rodriguez (and others) returned to the store parking lot, Task Force members arrested them and secured the truck. After an extensive search, law enforcement discovered the cocaine in the trailer’s frame.
The trial of defendants lasted two weeks during which over 200 exhibits were entered in evidence. After the parties had rested their respective cаses, but prior to summations, the jurors with the consent of the parties began reviewing exhibits in the courtroom. When the jurors began talking amongst themselves, the court admonished them, stating that “[t]here is no discussion among jurors on anything to do with the trial until you begin your deliberations,” and explained that the jurors could review any exhibits admitted during trial later when they were deliberating.
When the jury exited the courtroom for lunch, a court officer handed the court a handwritten note from a juror, whiсh stated, “We want to know how/when and under what pretext [a codefendant] met Miguel Mejias” (emphasis supplied). The court marked the note as an exhibit, but stated that it did not think it needed “to do anything.” Counsel for defendants disagreed, claiming that the use of the word “we” in the note implied that at least two of the jurors had been engaged in premature deliberations. Defense counsel requested that the court conduct an individual inquiry of the note-writing juror, and specifically ask her if she had been discussing the case with other jurors. The court considered the note as a request for additional evidence, and decided to address the panel as a whole because it did not want
Upon the jury’s return to the courtroom, the court addressed the panel.
“I have told you throughоut the case, jurors may not discuss the case amongst yourselves, or with any third-party until all the evidence and the law is given to you.
“So this juror handed me a note, but I assume even though the first word is, ‘We,’ that everyone has been following my instructions and not discussing anything about the trial amongst yourselves, or with any third-party. If that’s not the case, and there is anyone who has started discussing the evidence, could you please raise your hand?”
The record indicates that there was no resрonse. The court apprised the jury “that jurors don’t get to ask questions in New York,” that the jury could “only decide what’s in the record,” and that if something was not in the record then it was not evidence. After issuing those instructions, the court took no further action concerning the matter.
Following this admonition, the attorneys gave their summations, the jury was charged and deliberations were conducted. Defendants were convicted as charged. The Appellate Division affirmed, holding, as relevant here, that the trial court did not err in declining to conduct an individual inquiry of the note-writing juror (
II.
Defendants make two arguments. First, they assert that an individual in camera inquiry was warranted here because the juror’s use of the word “we” indicated that jurors had begun discussing the case prematurely. Second, they argue that the words “under what pretext” implied that at least two of the jurors had accepted the prosecution’s theory that the benign lexicon of the participants in the drug trafficking was a mere pretext for discussions about illegal conduct. The second argument, however, is unpreserved for our review, as defense counsel never argued at trial that the use of the phrase “under what
According to defendants, the trial court committed reversible error when it did not conduct a “probing and tactful” in camera inquiry given the use of the word “we.” We disagree. “If at any time after the trial jury has been sworn and before the rendition of its verdict . . . the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case . . . the court must discharge such juror” (CPL 270.35 [1] [emphasis supplied]). We have explained that “each case must be evaluated on its unique facts tо determine whether a particular juror must be disqualified under CPL 270.35,” and that it is up to the trial court to question the purportedly unqualified juror individually in camera and to “carefully consider the juror’s answers and demeanor to ascertain whether her state of mind will affect her deliberations” (Buford,
Our intention in Buford was to create a framework by which trial courts could evaluate sworn jurors who, for some reason during the trial, may “ ‘possess [ ] a state of mind which would prevent the rendering of an imрartial verdict’ ” (Buford,
Here, there is no indication from the note’s use of the word “we” that the note-writing juror’s impartiality was in doubt or that the juror had committed any misconduct. The note’s contents were indicative of two possibilities: that there had been premature deliberations and/or the jury was requesting additional evidence after the parties had rested and the evidence had closed. To address the former possibility, the court did what was warranted; namely, it issued an additional instruction to the jurors reminding them that they were not to deliberate prior to being charged. Premature deliberation by a juror, by itself, does not render a juror grossly unqualified. In аddressing the latter possibility, i.e., that the note was, in effect, asking for additional evidence, the trial court correctly apprised the jury
We have considered defendants’ remaining contentions and conclude that they are without merit.
Accordingly, the order of the Appellate Division should be affirmed in Mejias and Rodriguez.
Dissenting Opinion
After the evidentiary portion of the trial had concluded, but before closing arguments and the court’s charge—which is to say, before jury deliberations were to commence—a note written by juror 11 was handed up to the bench via juror 10. The note read, “We want to know how/when and under what pretext [a codefendant] met Miguel Mejias.” After sharing the note with counsel, the court expressed the view that a response was not necessary since the jury had been repeatedly instructed that they were to base their verdict only on the evidence that was introduced. The following exchange then took place:
“MR. PHILLIPS [defendant Mejia’s counsel]: Well, Judge, the problem is that the note begins, ‘We want to know,’ and that indicates to me that juror number ten has been discussing the evidence with at least one other juror, which is why it’s written ‘we.’ I would ask that you inquire of juror number ten.[1 ]
“THE COURT: Well, it’s also not very well written. ‘Under what pretext.’ So I would say it is her way of expressing herself. It does not necessarily mean ‘we.’
“MR. PHILLIPS: I ask that you ask juror number ten whether she has been discussing any of the evidence with any of her fellow jurors which would be in disobedience to the Court’s rules.”
After a recess, the court, apparently having decided that the
“Right before the recess, court officers handed me a note from Juror Number 10. I assume, first let me say, I have told you throughout the case, jurors may not discuss the case amongst yourselves, or with any third-party until all the evidence and the law is given to you.
“So this juror handed me a note, but I assume even though the first word is, ‘We,’ that everyone has been following my instructions and not discussing anything abоut the trial amongst yourselves, or with any third-party. If that’s not the case, and there is anyone who has started discussing the evidence, could you please raise your hand?
“(No response).”
It is the People’s position, and now that of the Court, that the trial court did not abuse her discretion. They note that she did not eschew all inquiry, but rather chose to address her inquiry to the entire panel so as not to single anyone out. Her decision not to “isolate” a juror, it is suggested, was reasonable, рarticularly since the court’s private inquiry of another juror
The juror note, it is true, could have been variously understoоd. It is possible, as the court suggested, that it was just the poorly worded request of an individual juror for additional evidence. On its face, however, it signified that there had been some premature discussion of the evidence by several members of the jury, and could be understood to indicate that some jurors had already accepted the prosecution’s contention that the defendants made liberal use of pretexts to conceal their illicit conspiracy.
“In reaching its conclusion [as to whether a juror is unqualified], the trial court must question each allegedly unqualified juror individually in camera in the presence of the attorneys and defendant. Counsel should be permitted to participate if they desire. In a probing and tactful inquiry, the court should evaluate the nature of what the juror has seen, heard, or has acquired knowledge of, and assess its importance and its hearing on the case. In this context, the court should carefully consider the juror’s answers and demeanor to ascertain whether her state of mind will affect her deliberations. The trial court’s reasons for its ruling should be placed on the record” (People v Buford,69 NY2d 290 , 299 [1987] [emphasis supplied]).
Obviously, the only way of reliably ascertaining whether, as the juror note seemed to indicate, jurors had been deliberating before they were permitted to do so, was to ask the author of
Because the inquiry prescribed by Buford was not performed, it is impossible to tell whether members of the jury deliberated before the case was put to the panel as a whole and it is thus impossible to know whether defendants’ fundamental right to a proper jury verdict was honored. This being the case, harmless error analysis is not appropriate. The requirement that a defendant show prejudice to obtain a new trial by reason of juror misconduct (see People v Irizarry,
Buford, I note, does not impose an utterly inflexible requirement. It recognizes that there are juror irregularities, the trivial character of which is plain and undisputed, and which do not trigger the requirement for an in camera inquiry (
The majority nonetheless attempts to disarm the note of its Buford consequence by relying on the concept of preservation to avoid consideration of one part of the note’s single sentence, and by misreading Buford tо require indicia of gross lack of qualification as a condition of the inquiry the case prescribes.
As to the first of these tacks, it is clear that counsel meticulously preserved his claim that the note was indicative of premature deliberation on the part of at least two jurors. While he focused upon the phrase “[w]e want to know,” that clause was not semantically severable from the same sentence’s statement of what the jurors wanted to know. The problem that counsel unmistakably brought to the court’s attention by his numerous and very explicit timely objections was that the juror note facially signified that members of the panel had engaged in pre-deliberation discussions, not about the weather or some other innocuous matter, but about the evidence and the way in which it either did or did not comport with the People’s factual theory of the case. If that had happened, it was a serious, and not a trivial, circumstance quite possibly involving juror “misconduct of a substantial nature,” i.e., conduct sufficiently serious to mandate juror disqualification pursuant to CPL 270.35 (1) (see e.g. People v Ordenana,
While acknowledging that, even when only the “we” portion of the note is considered, the communication was indicative of the possibility that there had been premature deliberations (majority op at 79), the Court finds that possibility insufficient to require a Buford inquiry because “[p]remature deliberation by a juror, by itsеlf, does not render a juror grossly unqualified” (majority op at 79). The relevant question, however, is not whether premature deliberation by itself would necessitate a juror’s disqualification pursuant to CPL 270.35 (1), but rather
I have no doubt that the trial court’s actions were well-meant—in addition to her concern for the sensibilities of individual jurors, the court may have feared that the probing inquiry sought risked a mistrial since there was only one alternate juror remaining and more than one juror would have been involved in any disclosed misconduct. Nonetheless, a defendant’s right to a proper jury verdict is fundamental and the procedurе mandated in Buford to protect that right, and more broadly the integrity of the trial and its outcome, is soundly conceived. I see no adequate basis to conclude that it was dispensable under the circumstances that prompted these defendants’ very explicit request for it. Certainly, the rationale for the prescribed inquiry did not become less compelling because it was sought in a complex, high profile drug prosecution, and the majority, correctly, does not suggest otherwise. But, in the absence of some more satisfactory explanation than that supplied by the majority, it is difficult to understand why the Court has so limited the availability of an important prophylactic device, requiring its use only where the conduct it is directed at probing and characterizing is already largely made out upon the record, but upholding its denial where the prescribed procedure is absolutely essential to the investigation of a credible report of potentially serious juror misconduct.
Judges Graffeo, Read and Smith concur with Judge Pigott; Chief Judge Lippman dissents and votes to reverse in an opinion in which Judge Rivera concurs.
In each case: Order affirmed.
Notes
. Although Mr. Phillips was, at the time, under the impression that the note had been written by juror 10, probably because juror 10 handed the note to the court officer, in fact the note was authored by juror 11.
. The People’s expert, for example, testified at length as to the various linguistic subterfuges used by the conspirators to mask references to illicit transactions in their phone communications. The jury’s acceptance of the expert’s interpretation of the numerous tapped phone conversations of the alleged coconspirators was crucial to the People’s case.
. CPL 270.40 expressly requires that the jury be admonished at the trial’s commencement that they “may not converse among themselves or with anyone else upon any subject connected with the trial,” and it is a standard instruction that “[o]ur law . . . does not permit jurors to converse among themselves about the case until the Court tells them to begin deliberations because premature discussions can lead to a premature final decision” (CJI2d[NY] Jury Admonitions in Preliminary Instructions).
. In any case, Irizarry did not involve juror misconduct. The post-verdict claim there was that the failure to seal one jury’s verdict until a verdict had been reached by the second jury in the two-jury trial, itself required the conclusion that the second verdict had been influenced by the first.