71 N.Y.2d 684 | NY | 1988
Lead Opinion
OPINION OF THE COURT
Defendant has been convicted of two counts of murder, second degree, and other crimes committed in the course of killing 80-year-old Elizabeth Dougherty. The victim was found near death in her Bronx apartment, bound and gagged under
Defendant contends that he was denied a fair trial because the Trial Judge permitted the jury to take part of the indictment into the jury room. Confronted with the request of the jury for further assistance during deliberations, and mandated by the statute to provide it to them (see, CPL 310.30; People v Malloy, 55 NY2d 296, 301), the court submitted copies of two counts to them. The error in doing so, if indeed it was error, was harmless beyond a reasonable doubt and does not require reversal of the conviction.
After the jury had started deliberating, it sent a note to the court requesting that it be given a copy of counts two and three of the indictment, the counts charging felony murder. The court had the jury returned to the courtroom and after reading the two counts to them it asked the jurors if the reading sufficed or if they still wanted copies of the indictment. The jurors responded that they wished a copy of the indictment for reference during deliberations. The court prepared photocopies but before giving them to the jury, it again explained the difference between attempted robbery and burglary, the predicate felonies contained in the two counts. It also warned the jury that the copies were given at their request as an aid to deliberation and that the indictment was "not evidence and it is not to be considered as evidence.”
The submission of the counts of the indictment in the matter before us did not entail any of the risks identified in Owens because of the nature of the information and because the court was responding to a request from the jury. Manifestly, the court was not emphasizing counts two or three or conveying a message to the jury that they were of particular importance and other matters less so. The jury had already decided that it needed the court’s further instructions and assistance on the counts charging felony murder. The portion of the indictment setting forth those counts clearly was part of an accusatory instrument, known by the jury to be so, and routinely stated the charges.
Nor is this case controlled by our decision in People v Sanders (70 NY2d 837) which involved submission of a statute (see also, People v Nimmons, 72 NY2d 830). Although the court was also responding to the jury’s request in Sanders, the danger that a jury may misuse a statute is significantly greater than the danger that it will misuse an indictment. When jurors consider a statute in isolation, apart from related statutes, the legislative history and judicial interpretation, they may very well engage in a collateral debate as to its meaning, thereby taking on the role as Judges of the law as well as Judges of the fact. No such danger exists when an indictment is given to the jury, for the law presumes that the jury will follow the court’s instructions that the indictment is not evidence and is only an accusatory instrument.
Accordingly, the order of the Appellate Division should be affirmed.
"second count
"The Grand Jury of the County of the Bronx by this indictment, accuse the defendant of the crime of murder in the second degree committed as follows:
"The defendant, on or about January 17, 1984, in the County of the Bronx, having attempted to commit the crime of robbery, and in the course of and in furtherance of such crime and of immediate flight therefrom, caused the death of Elizabeth Doherty [sic] she being other than a participant, by asphyxiation by smothering.
"third count
"The Grand Jury of the County of the Bronx by this indictment, accuse the defendant of the crime of murder in the second degree committed as follows:
"The defendant, on or about January 17, 1984, in the County of the Bronx, having committed the crime of burglary, and in the course of and in furtherance of such crime and of immediate flight therefrom, caused the death of Elizabeth Doherty [sic] she being other than a participant, by asphyxiation by smothering.”
Dissenting Opinion
(dissenting). The ink is barely dry on People v Owens (69 NY2d 585), People v Brooks (70 NY2d 896) and People v Sanders (70 NY2d 837), establishing that a trial court’s submission to a deliberating jury — over defendant’s objection — of written materials not expressly authorized by the Criminal Procedure Law and posing a risk of prejudice, is per se reversible error, not subject to harmless error analysis (see also, People v Nimmons, 72 NY2d 830). Now the majority refuses to apply those holdings to this comparable case. For two reasons I respectfully dissent. First, the same or even
No point in a trial can be more critical than jury deliberations. Materials taken into the jury room at those crucial moments may well influence the verdict. Recognizing this, both the Legislature and this court have circumscribed what may properly be furnished to a deliberating jury. The Legislature has specified that exhibits in evidence (CPL 310.20 [1]), verdict sheets prepared by the court (CPL 310.20 [2]) and copies of statutes (CPL 310.30) may be submitted, and it has surrounded even these categories with several protections. Exhibits received in evidence enjoy a "triple whammy of protection” (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 310.20); they may be taken into the jury room, in the court’s discretion, only after the parties have had an opportunity to be heard. The text of a statute may be submitted, in the court’s discretion, only "[w]ith the consent of the parties and upon request of the jury for further instruction with respect to a statute”. (CPL 310.30.)
In People v Owens (supra), barely one year old, we concluded that it was per se reversible error for a Trial Judge to give a deliberating jury, over defense objection, written excerpts from the charge (see also, People v Brooks, 70 NY2d 896, 898, supra). Only six months later, following Owens, this court concluded that it was per se reversible error to furnish the jury with a copy of the text of a pertinent statute. "The distribution of the statute without counsel’s consent is prohibited by CPL 310.30 and, like the distribution of written excerpts of a jury charge considered in Owens (supra), the error cannot be deemed harmless” (People v Sanders, 70 NY2d 837, 838, supra). Today, in People v Nimmons (supra) we apply these precedents to a list of the counts of the indictment in statutory language, and again determine that the conviction must be reversed.
Against this clear backdrop of statutory and decisional law, today’s holding is incongruous and incomprehensible. If we followed our own precedents, defendant’s conviction would be reversed and a new trial ordered.
Defendant was convicted of two counts of felony murder, under a statute reading: "A person is guilty of murder in the second degree when: * * * he commits or attempts to commit
Yet what is at issue here is simply a more inflammatory, accusatory version of the statutory language, reading as follows:
"second count
"The Grand Jury of the County of the Bronx by this indictment, accuse the defendant of the crime of murder in the second degree committed as follows:
"The defendant, on or about January 17, 1984, in the County of the Bronx, having attempted to commit the crime of robbery, and in the course of and in furtherance of such crime and of immediate flight therefrom, caused the death of Elizabeth Doherty [sic] she being other than a participant, by asphyxiation by smothering.
"third count
"The Grand Jury of the County of the Bronx by this indictment, accuse the defendant of the crime of murder in the second degree committed as follows:
"The defendant, on or about January 17, 1984, in the County of the Bronx, having committed the crime of burglary, and in the course of and in furtherance of such crime and of immediate flight therefrom, caused the death of Elizabeth Doherty [sic] she being other than a participant, by asphyxiation by smothering.”
A side-by-side comparison of the statute and the indictment can only leave one bewildered as to why in Owens, Brooks, Sanders and Nimmons we concluded that there must be reversal, and here we reach a different result.
True, the identical risks cited in Owens are not present: the prejudice is possibly even greater here. As with a statute, there is substantial danger that a deliberating jury will be
Nor is the risk of prejudice diminished, as the majority suggests, because it was the jury that requested the document (see, People v Sanders, supra). To the contrary, the jury’s insistence on having the indictment even after its contents were reread insured that the indictment itself would be a significant factor in the deliberations. Indeed, submission of the indictment here apparently had just that effect. This jury deliberated approximately five hours, and then requested a copy of counts two and three of the indictment. When defendant objected, the court reread those counts to them. The jury persisted in its request for a copy of the indictment, which they ultimately received, and 30 minutes later announced their guilty verdict.
I therefore cannot agree with the majority’s conclusion that the error was harmless or that the proof of guilt was overwhelming. The fingerprint evidence established only defendant’s presence in the victim’s apartment at some unascertainable time. The only other evidence linking him to the crime was the recollection of two police officers that defendant had made a statement allegedly evincing knowledge of details of the crime. The probative value of this evidence, however, was substantially undercut by the concession of one of the officers that in his Grand Jury testimony he had given a
There should be a reversal and new trial, because we are led to this result by our own recent decisions, and because it leaves in place a clear, unclouded rule to guide trial courts.
Chief Judge Wachtler and Judges Hancock, Jr., and Bellacos a concur with Judge Simons; Judge Kaye dissents and votes to reverse in a separate opinion in which Judges Alexander and Titone concur.
Order affirmed.