Opinion
10-01.
Decided March 23, 2011.
LORI PETTIT RIEMAN, ESQ., District Attorney, Cattaraugus County, New York, for the People.
BRYAN R. MILKS, ESQ., Delevan, New York, for the Defendant.
DECISION
After a jury trial, defendant was convicted of a course of sexual conduct against a child in the second degree (PL 130.80), sexual abuse in the second degree (PL 130.60), and endangering the welfare of a child (PL 260.10). Defendant has since moved to set aside the verdict on two grounds: 1) certain jurors "held themselves out as experts during deliberations and offered the equivalent of expert opinion evidence to other members of the jury", and 2) the court gave the jury a coercive Allen charge.
The district attorney opposed the motion on the grounds that defendant failed to demonstrate that either contention "affected a substantial right of Defendant." Because there was no objection to the Allen charge at the trial, the court denied the motion on those grounds ( see People v. Carter, 63 NY2d 530, 483 NYS2d 654; People v. Alfaro, 66 NY2d 985, 499 NYS2d 378; People v. Benton , 78 AD3d 1545, 910 NYS2d 785 [4th Dept 2010]; People v. Tillman, 273 AD2d 913, 709 NYS2d 765 [4th Dept 2000], lv denied 95 NY2d 939, 721 NYS2d 615), and scheduled a hearing only on the jury misconduct issue.
At the hearing, defendant called two of the jurors to testify. Dennis Redding testified that he had difficulty squaring the victim's testimony with the lack of physical evidence, the fact that the victim continued to go places with defendant, and the victim's inability to recall precise dates. He stated that three of the jurors said things like, "we see this all the time," "this is typical [behavior on the victim's part]," and "it's not uncommon for a victim to put it out of her mind." However, Mr. Redding did not attribute any particular statement to any specific juror and also said he did not remember any of the three jurors referencing any special training in this area.
Kara Kasperski said that jurors Todd and Yvonne referenced backgrounds in the field and said that the victim acted the way a sexual assault victim frequently acts. While Ms. Kasperski said she valued Yvonne's opinion, she made up her own mind on the verdict and was not a holdout. Ms. Kasperski also testified to some personal experiences where three people confided to her that they had been sexually abused — one of whom told her immediately and two who told her years after the abuse had occurred.
After the defense rested, the district attorney moved to deny the motion on the grounds that defendant had not made a prima facie showing of juror misconduct. While the court believes the People should have called their own witnesses to insure a better record, I also believed that defendant had not met his threshold and granted the People's application and denied defendant's motion to vacate the verdict. I write now to explain the court's reasons.
In People v. Maragh ( 94 NY2d 569, 708 NYS2d 44), the court addressed whether two nurse-jurors' personal professional expertise, communicated to the rest of the jury, constituted juror misconduct such that the guilty verdict should be set aside. At issue was the conflicting medical testimony from the prosecution and defense experts. The two nurses shared their professional expertise with the other jurors to support the prosecution experts and dispute those of the defense.
In reversing the conviction, the Court of Appeals noted the "grave potential for prejudice" when a professional shares his or her expertise to draw "an expert conclusion about a material issue in the case" ( 94 NY2d at 574, 708 NYS2d at 47). "Other jurors are likely to defer to the gratuitous injection of expertise and evaluations by fellow professional jurors, over and above their own everyday experiences, judgment and the adduced proofs at trial" ( Id.). Thus, reversible error occurs when "(1) jurors conduct[] personal specialized assessments not within the common ken of juror expertise and knowledge (2) concerning a material issue in the case, and (3) communicat[e] that expert opinion to the rest of the jury panel with the force of private, untested truth as though it were evidence" ( Id.).
With the recent efforts to broaden jury pools by eliminating most, if not all, automatic jury exemptions, this issue will undoubtedly occur more frequently as formerly exempt persons appear on jury panels. The year after Maragh was decided, the Court of Appeals noted that this reform was intended to bring a wider range of expertise into the jury room and noted that courts in other jurisdiction do not find reversible error when jurors share life experiences during deliberations ( see People v. Arnold, 96 NY2d 358, 729 NYS2d 51; see also People v. Santi ( 3 NY3d 234, 785 NYS2d 405 [holding that juror giving her lay opinion about the insertion of an IV line was not misconduct]). Nonetheless, while noting the rule in other jurisdictions, the Court did not modify the rule in New York.
This court believes that the complained of conduct here does not rise to the level of juror misconduct. In this day of massive publicity, who does not know that victims of sexual abuse, especially when it occurs in the home, often do not report it for years? One of the jurors called by the defense illustrated this point when she tearfully relayed the experience of two victims confiding in her many years after the fact. Similarly, who does not know that when abuse occurs over a period of years, victims cannot remember precise dates? These issues are in the media daily and are simply not indigenous only to experts. Indeed, even a casual reader of the newspaper would be aware of the numerous cases of child abuse coming to light years later.
Finally, Mr. Redding admitted that he regretted his verdict and conceded that he did not hear specific reference to any one juror's professional experience and Ms. Kasperski adamantly said she made up her own mind on the verdict. The court therefore finds no misconduct ( see Santi, 3 NY3d 234, 785 NYS2d 465; People v. Rodriguez, 100 NY2d 30, 760 NYS2d 74; People v. Pizarro , 7 NY3d 840 , 823 NYS2d 756); People v. Karen , 17 AD3d 865 , 793 NYS2d 273 [3d Dept 2005], lv denied 5 NY3d 764, 801 NYS2d 259; People v. Robinson , 1 AD3d 985 , 765 NYS2d 50 [4th Dept 2003], lv denied 1 NY3d 633, 777 NYS2d 32; People v. Stevens, 275 AD2d 902, 713 NYS2d 606 [4th Dept 2000], lv denied 96 NY2d 807, 726 NYS2d 385).