The People, Appellant,v.Terrance L. Mack, Respondent.BriefN.Y.September 10, 2015 To Be Argued By: NICOLAS BOURTIN Time Requested: 15 Minutes APL-2014-00175 __________________________________________________________________ Court of Appeals State of New York _______________________ THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- TERRANCE L. MACK, Respondent. _______________________ ________________________________________________________________ SUPPLEMENTAL BRIEF FOR RESPONDENT __________________________________________________________________ TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Respondent BY: SULLIVAN & CROMWELL LLP Of Counsel NICOLAS BOURTIN CHARLES E. MOULINS 125 Broad Street New York, NY 10004 Tel: (212) 558-4443 Fax: (212) 291-9904 Date Completed: February 26, 2016 _________________________________________________________________ i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................... ii PRELIMINARY STATEMENT ......................................................................... 1 ARGUMENT ......................................................................................................... 4 I. Applying Rules of Preservation to the Failure to Respond to Jury Questions Would Be Contrary to CPL 310.30 and Would Overrule O’Rama ....................................................................................... 5 II. Concerns that Defense Counsel Will “Game” the System Do Not Justify Applying Rules of Preservation to the Trial Judge’s Failure to Respond to Jury Questions .................................................... 11 III. The Trial Judge’s Failure to Respond to Jury Questions Was Prejudicial to Respondent ........................................................................ 14 CONCLUSION .................................................................................................... 17 ii TABLE OF AUTHORITIES Page(s) Cases Duffy v. People, 26 N.Y. 588 (1863) ............................................................................................... 6 Mauer v. People, 1 Cow.Cr.Rep. 335 (1870) .................................................................................... 5 People v. Ahmed, 66 N.Y.2d 307 (1985) ....................................................................................... 6, 8 People v. Alcide, 21 N.Y.3d 687 (2013) ....................................................................................... 7, 9 People v. Alfaro, 66 N.Y.2d 985 (1985) ......................................................................................... 12 People v. Almodovar, 62 N.Y.2d 126 (1984) ........................................................................................ 13 People v. Becoats, 17 N.Y.3d 643 (2011) ......................................................................................... 11 People v. Ciaccio, 47 N.Y.2d 431 (1979) ......................................................................................... 13 People v. DeRosario, 81 N.Y.2d 801 (1993) ........................................................................................... 9 People v. Gezzo, 307 N.Y. 385 (1954) ........................................................................................... 13 People v. Gonzalez, 293 N.Y. 259 (1944) ........................................................................................... 13 People v. Gray, 86 N.Y.2d 10 (1995) ..................................................................................... 11, 12 iii People v. Kisoon, 8 N.Y.3d 129 (2007) ............................................................................................. 8 People v. Leavitt, 301 N.Y. 113 (1950) ............................................................................................. 6 People v. Lourido, 70 N.Y.2d 428 (1987) ........................................................................................... 8 People v. Malloy, 55 N.Y.2d 296 (1982) ......................................................................................... 13 People v. Martin, 8 N.Y.3d 129 (2007) ......................................................................................... 8, 9 People v. Nealon, 26 N.Y.3d 152 (2015) ..................................................................................passim People v. O’Rama, 78 N.Y.2d 270 (1991) ..................................................................................passim People v. Patterson, 39 N.Y.2d 288 (1976) ......................................................................................... 13 People v. Ramirez, 15 N.Y.3d 824 (2010) ....................................................................................... 7, 8 People v. Santi, 3 N.Y.3d 234 (2004) ........................................................................................... 13 People v. Silva, 24 N.Y.3d 294 (2014) ................................................................................. 8, 9, 10 People v. Starling, 85 N.Y.2d 509 (1995) ........................................................................................... 7 People v. Wallens, 297 N.Y. 57 (1947) ............................................................................................... 6 People v. Walston, 23 N.Y.3d 986 (2014) ....................................................................................... 7, 8 iv People v. Williams, 21 N.Y.3d 932 (2013) ....................................................................................... 7, 8 Sparf v. United States, 156 U.S. 51 (1895) ................................................................................................ 6 Statutes N.Y. CPL 300.10 ........................................................................................................ 6 N.Y. CPL 310.30 ...............................................................................................passim PRELIMINARY STATEMENT By Order dated October 27, 2015, this Court ordered re-argument of the People’s appeal in this case. Thereafter, Respondent Terrance Mack (“Respondent” or “Mack”) sought permission to file this supplemental brief (the “Supplemental Brief”), which was granted by Order dated February 23, 2016. Respondent continues to rely upon the statement of facts and the submissions made in his original brief before this Court (“Respondent’s Brief”). This Supplemental Brief is submitted to further address the question that became the focus of oral argument on September 10, 2015, and which presumably motivated the Court’s decision to order re-argument: Do the rules of preservation apply to the issue of whether the trial court should have given a response to three substantive jury questions that went unanswered during the deliberation phase?1 The answer to this question must be no. Under settled New York law, the trial court’s complete neglect of its statutory duty to provide a response to substantive jury questions is a mode of proceedings error and, accordingly, is subject to appellate scrutiny irrespective of preservation. 1 The Supplemental Brief will also discuss this Court’s recent decision in People v. Nealon, 26 N.Y.3d 152 (2015), which was argued on the same day as the present case and deals with the related, yet distinct, issue of whether defense counsel, having been provided with proper notice of a jury note, must preserve any objections as to the manner and content of the judge’s response to the note. 2 In this case, the jury asked questions to aid in its understanding of crucial aspects of the evidence and of the law: it asked (i) for a read-back of a portion of the testimony of Megan Torres (the People’s key identification witness placing Mack at the scene of the crime), (ii) for instructions on reasonable doubt, and (iii) for instructions on “the importance of a single witness in a case versus multiple witnesses.” These questions were critical to the main issues the jury was called upon to decide and should have alerted the trial court to the jury’s confusion and need for guidance. Not only did the questions show that the jury was struggling with whether the prosecution—whose case hinged on the flawed testimony of a single witness placing Mack at the scene of the crime—had satisfied its burden of proof, they also suggested that the jury was potentially misapprehending the evidence. Indeed, the jury asked “[t]o hear Megan Torres’ testimony regarding Terrance Mack’s leaving of the crime scene,” when in fact no portion of Ms. Torres’ testimony concerns Mack leaving the scene. Further, these crucial questions were asked on a Friday evening, following a week of trial, and after the jury had indicated in a note that it was deadlocked. The jury turned, quite appropriately, to the trial judge for the guidance that New York law requires, but received none. 3 Instead, the trial court accepted the jury’s verdict without ever acknowledging to the jury that it had received the questions. Nor did the trial court ask whether the jury had satisfactorily answered these questions for itself. The trial court’s failure to provide any response whatsoever to the jury’s questions is contrary to fundamental precepts of New York criminal law that have been codified in CPL 310.30 and developed in case law—People v. O’Rama, 78 N.Y.2d 270 (1991), and its progeny. Indeed, this Court has consistently held that O’Rama imposes two core requirements upon trial courts: (i) to provide meaningful notice to counsel of jury requests, and (ii) to provide juries with a meaningful response to their requests. This Court has consistently maintained that the core requirements of O’Rama must be fulfilled by trial judges and that a failure to do so constitutes a mode of proceedings error that requires no preservation to be reviewable on appeal. Applying the rules of preservation to the trial court’s failure to make any attempt whatsoever to fulfill the “meaningful response” prong of O’Rama would be a complete departure from O’Rama and would be tantamount to overruling it, which the People have not asked this Court to do. Such a result would be contrary to stare decisis and, instead of providing guidance to trial courts and litigants, would only sow more confusion. 4 Moreover, it would be particularly inappropriate to use the present case as a vehicle to overrule O’Rama, since there exists a real possibility here that the jury, having concluded that no guidance from the court was forthcoming, succumbed to the pressure of rendering a verdict late on a Friday night despite manifest unresolved confusion as to both the evidence and the law. The fundamental protections of CPL 310.30 and O’Rama exist specifically to prevent such an unfair outcome. Accordingly, this Court should affirm the ruling of the Appellate Division, which correctly found that the trial court’s neglect of its responsibilities under CPL 310.30 warranted reversal. ARGUMENT As discussed in Respondent’s Brief, the trial court’s failure to provide any response to the jury’s questions is indisputably a departure from the requirements of CPL 310.30 and the procedure set forth in O’Rama. As in the recent Nealon case, the main question now before the Court “is not whether the trial court deviated from the O’Rama procedure,” but rather, whether “this particular deviation from the O’Rama procedure . . . falls within the ʻtightly circumscribed classʼ of errors known as mode of proceedings errors, which are not subject to the preservation requirement.” 26 N.Y.3d at 158. 5 I. Applying Rules of Preservation to the Failure to Respond to Jury Questions Would Be Contrary to CPL 310.30 and Would Overrule O’Rama The trial judge’s failure to provide any response to the jury’s questions is both (i) a violation of the fundamental guarantees of CPL 310.30 and (ii) a mode of proceedings error as contemplated by O’Rama and its progeny. (i) The trial judge violated CPL 310.30, which codifies longstanding, fundamental aspects of the judge’s supervisory role in a jury trial CPL 310.30 provides that upon “a [jury] request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper.” (Emphasis added.) In O’Rama, this Court held that this statutory provision “imposes two separate duties on the court following a substantive juror inquiry: the duty to notify counsel and the duty to respond.” 78 N.Y.2d at 276 (emphasis added). These duties derive from and complete the court’s broader duties to instruct and supervise the jury.2 Every trial court has an absolute duty to instruct the jury on the law and to explain the application of the law to the facts. CPL 2 Relatedly, CPL 310.30 codifies the ancient, common law right of deliberating jurors to ask questions about the law and about the evidence. See Mauer v. People, 1 Cow.Cr.Rep. 335 (1870). 6 300.10(1)-(2); People v. Wallens, 297 N.Y. 57, 62 (1947); People v. Leavitt, 301 N.Y. 113, 117 (1950). And the jurors have an absolute duty to accept the law from the court. Duffy v. People, 26 N.Y. 588, 591 (1863); Sparf v. United States, 156 U.S. 51, 63 (1895). More broadly, the court has a duty to supervise the jury, which includes responding to requests during deliberations. People v. Ahmed, 66 N.Y.2d 307, 310 (1985) (holding that “an integral component of [a jury trial] is the supervision of a judge”). This duty is not subject to rules of preservation: “The failure of a judge to retain control of deliberations . . . implicates the organization of the court or the mode of proceedings prescribed by law, and such failure presents a question of law for our review even absent a timely objection.” Id. Thus, the O’Rama procedure is not judge-made law that exists in a vacuum, but rather a procedure that articulates the fundamental statutory commands of CPL 310.30 as to how state criminal trials should be organized. Here, the absence of any response whatsoever to substantive jury questions is in clear violation of CPL 310.30, which contemplates that some response, some guidance, must be given to a jury request or question, in order to ensure that the jury is properly instructed and that it exercises its core function under the supervision of the judge. 7 (ii) Under O’Rama and its progeny, the trial judge’s complete failure to respond is a mode of proceedings error It is uncontroversial that, under this Court’s O’Rama jurisprudence, not all departures from the O’Rama procedure are mode of proceedings errors. Nealon; People v. Starling, 85 N.Y.2d 509 (1995); People v. Ramirez, 15 N.Y.3d 824 (2010); People v. Williams, 21 N.Y.3d 932 (2013); People v. Alcide, 21 N.Y.3d 687 (2013). However, while “preservation is required where it is evident from the record that the trial court fulfilled its core responsibilities,” conversely, “[w]hen a court fails to fulfill those [core] responsibilities . . . a mode of proceedings error occurs and departures from the O’Rama procedures are not subject to preservation rules.” People v. Walston, 23 N.Y.3d 986, 989 (2014). Faithfulness to O’Rama’s core concern requires this Court to affirm, once more, that the complete failure to fulfill either one of the “two separate duties,” or “core responsibilities,” recognized in O’Rama—including the duty to provide a meaningful response to a substantive jury question—is a mode of proceedings error. This Court has sought to apply O’Rama in a manner that ensures fulfillment of the specific supervisory duties mandated by CPL 310.30 without undermining the finality of jury verdicts by creating undue opportunities for defendants to revisit a verdict on appeal. O’Rama and its progeny have applied the 8 mode of proceedings doctrine to judicial errors that completely obviate fulfillment of one of the two “core” duties of CPL 310.30. Conversely, the rules of preservation have been found to apply to judicial errors that result in those duties being essentially discharged, albeit imperfectly. With respect to the “meaningful notice” prong of O’Rama, this Court has applied the mode of proceedings doctrine to instances where defense counsel does not get notice of jury questions by means of a verbatim reading into the record of a jury note. See, e.g., Walston; People v. Kisoon, 8 N.Y.3d 129 (2007). By contrast, it has applied the rules of preservation in instances where defense counsel receives such notice, but is not afforded a full opportunity to participate in the formulation of the judge’s response to the question as provided for in O’Rama. See, e.g., Nealon; Ramirez; Williams. With respect to the “meaningful response” prong, this Court has consistently applied the mode of proceedings doctrine to cases where no response whatsoever is provided to a jury question. See, e.g., Ahmed; People v. Lourido, 70 N.Y.2d 428, 435 (1987) (“[T]he court’s response was not meaningful because it was no response at all”); People v. Martin, 8 N.Y.3d 129, 135 (2007) (consolidated with People v. Kisoon) (“[I]t is undisputed that the trial court erred in failing to notify counsel or to respond to the jury’s first note”) (emphasis added); People v. Silva, 24 N.Y.3d 294, 300 (2014) (consolidated with People v. Hanson) (“[The 9 O’Rama] mandates were not satisfied in the two cases now before us since the substantive jury notes, marked as court exhibits, were neither revealed to the attorneys nor addressed by the courts”) (emphasis added). Conversely, it has applied the rules of preservation where defense counsel is provided with meaningful notice of the jury question, no objection is made, and a response is given, but defendant later raises on appeal that the response was unsatisfactory. See, e.g., Alcide; see also People v. DeRosario, 81 N.Y.2d 801, 803 (1993) (preservation applies where “defense counsel was present, was given notice, and participated in formulating the responses to the written jury queries”). There has never been a case, however, where this Court has condoned under O’Rama the failure to give any response whatsoever to substantive jury questions. In the cases that have previously come before this Court, the failure to give any response whatsoever to a substantive jury question also coincided with a failure to provide defense counsel with notice of the jury question, e.g., because a jury note was somehow lost. See Martin; Silva. The novelty of the present case is that notice of the jury questions was given to defense counsel (thus arguably satisfying the “meaningful notice” prong of O’Rama),3 but thereafter no response 3 Respondent maintains his argument that trial counsel here was given insufficient notice of the jury requests, as counsel was not informed of the timing of those requests and, consequently, could not fully appreciate that there had been undue delay in addressing them. See Respondent’s Brief at 33-36. 10 was provided. However, the fulfillment of the notice requirement becomes meaningless if no response is provided, since notice is required precisely in order “to ensure that counsel has the opportunity to be heard before the response is given.” O’Rama, 78 N.Y.2d at 277 (emphasis added). This of course presupposes that some sort of response will be given. Where, as here, the trial court fails to give any response, the protections of CPL 310.30 and the jurisprudence developed thereunder are completely defeated. Consequently, applying the rules of preservation to the trial court’s failure to provide any response whatsoever to jury questions would be tantamount to overruling O’Rama. While this Court has at times sought to add flexibility to the O’Rama procedure by identifying types of errors that defense counsel must act to preserve at trial (most recently in Nealon), it has consistently held that O’Rama’s two core requirements of notice and response must be fulfilled. As recently as 2014, when asked to overrule an aspect of the O’Rama procedure, this Court “reiterate[d] that a ʻcompelling justificationʼ is required to cast aside precedent” and found that no such justification existed with respect to the O’Rama procedure. Silva, 24 N.Y.3d at 300. 11 II. Concerns that Defense Counsel Will “Game” the System Do Not Justify Applying Rules of Preservation to the Trial Judge’s Failure to Respond to Jury Questions The People have argued that applying the mode of proceedings doctrine in this case would create an incentive for defense counsel to allow the court to commit error at trial in order to obtain an automatic reversal on appeal. (Brief for Appellant at 11, 13). The so-called “gamesmanship problem” was discussed extensively at oral argument on September 10, 2015. And while the Court’s desire to guard against gamesmanship is of course appropriate, that concern should not direct the outcome here, for at least three main reasons. First, the duty to provide a response to jury questions is a duty of the court, rather than an aspect of the trial that is subject to the strategic choices of trial counsel. It is logical to apply rules of preservation to aspects of a trial that fall within the domain of defense counsel’s strategic conduct of the trial—for example the decision whether to move to dismiss a duplicitous indictment (People v. Becoats, 17 N.Y.3d 643, 651 (2011)) or to move to dismiss on the ground that the trial evidence on a particular count is legally insufficient (People v. Gray, 86 N.Y.2d 10, 20-21 (1995)). Likewise, it is the prerogative of defense counsel to decide how to attempt to shape the trial court’s response to a jury question, as this raises considerations that are essentially strategic in nature. By contrast, defense counsel’s “position” or “strategy” as to whether or not the trial court should 12 respond at all to the jury request is irrelevant. It makes no difference, because CPL 310.30, and the court’s broader supervisory responsibilities, command a response. Second, the rationale underpinning the rules of preservation does not apply to the complete failure to respond to jury questions. Preservation may be a proper burden to place upon a party where the trial court may not be aware of a particular problem perceived by defense counsel, such as an alleged deficiency in the trial proof (Gray, 86 N.Y.2d at 20-21) or an alleged repugnancy in the guilty verdicts (People v. Alfaro, 66 N.Y.2d 985, 987 (1985)). In such circumstances, requiring preservation may be the only way to create an opportunity to cure the alleged error during the trial. Preservation is not required, however, where an issue affecting the proceedings is directed to the trial court itself, independently of any intervention by counsel. The receipt of a jury note in and of itself makes the court aware that the jury requires further instruction and is potentially confused with respect to the law or the evidence. In other words, the court should not need a reminder by counsel that it cannot totally ignore jury questions. Finally, the preservation of the fundamental integrity of the jury trial is simply more important than preventing defendants from occasionally benefitting from a trial court’s failure to provide any response whatsoever to critical jury questions. The trial court’s duty to provide instruction to a jury, including instruction in the form of answers to jury questions, has long been recognized by 13 this Court as a fundamental aspect of jury trials that falls outside the discretion of the court. See, e.g., People v. Gonzalez, 293 N.Y. 259, 262 (1944) (finding that the predecessor provision to CPL 310.30 “leaves to the trial court no discretion whatever as to whether or not to answer a proper question from the jury”); People v. Gezzo, 307 N.Y. 385, 396 (1954) (“It is settled law that a judge may not decline to answer a jury’s request for further instructions”); People v. Malloy, 55 N.Y.2d 296, 301 (1982) (“It has long been the law in this State that the trial court, in responding to jury inquiries, must give meaningful supplemental instructions”); People v. Almodovar, 62 N.Y.2d 126, 131 (1984) (“The court possesses some discretion in framing its supplemental instructions but it must respond meaningfully to the jury’s inquiries”); People v. Santi, 3 N.Y.3d 234, 248 (2004) (“[A] trial court is without discretion in deciding whether to respond, [but] the court does have discretion as to the substance of the response”). This Court has underscored the crucial nature of supplemental instructions, since “they may well be determinative of the outcome of the case, coming as they do in response to questions raised by the jurors themselves.” People v. Ciaccio, 47 N.Y.2d 431, 436 (1979). Consequently, the failure to provide any response whatsoever to substantive jury questions is appropriately subject to the mode of proceedings doctrine, as it is an error that fundamentally detracts from the process and guarantees provided by law. People v. Patterson, 39 14 N.Y.2d 288, 295 (1976) (providing that a mode of proceedings error is an “error that would affect the organization of the court or the mode of proceedings prescribed by law.”). III. The Trial Judge’s Failure to Respond to Jury Questions Was Prejudicial to Respondent Though it is Respondent’s position that he need not demonstrate prejudice to obtain a reversal (since the mode of proceedings doctrine applies here and warrants automatic reversal), it is nevertheless relevant to note that the facts of this case perfectly illustrate the prejudice that can result from a trial court’s complete failure to comply with CPL 310.30 and respond to jury questions. This case presented significant challenges for the jury: the People’s case hinged on the identification of Respondent at the scene of the crime by the teenager Megan Torres, whose testimony was deeply flawed. Among other flaws in her testimony, she had initially told police that she was unable to identify anyone at the scene of the crime (T. 358:7-13), her only basis for identifying Respondent was that she had seen him in the neighborhood “quite a few times” (though she did not know his name and could only represent that she had seen him “more than once”) (T. 343:8, T. 357:9-13), she witnessed the scene from a distance at dusk (T. 234:6-14, T. 341:15-17), she herself described the melee surrounding the victim as chaotic (T. 341:20-22) and was unable to identify any other participants (T. 368:16-21), and she stated that a bottle had been shattered against 15 the victim (T. 359:15-24, 361:8-19) despite the fact that no broken glass was found at the scene by police officers or police technicians (T. 283:1-8, T. 312:25-313:3). The victim’s daughter and older sister also testified for the prosecution and had been present at the scene of the crime, but neither identified Respondent at trial. The prosecution otherwise relied on Ronaldo Donald, who appeared as a prosecution witness ten days before trial and was motivated by the prospect of a violent felony override that would significantly reduce his time served. (T. 437:11-438:13). In these circumstances, the jurors struggled to reach a verdict on a Friday evening, after a week of trial. They commenced deliberations at roughly 12:30 p.m. At 5:42 p.m., the jury announced to the court that the jurors were deadlocked and asked, “[h]ow late are we allowed to deliberate tonight?” (T. 784- 785). The judge simply stated that “there [was] no time limit” (T. 785:24), arguably giving the jurors the impression that deliberations could drag indefinitely into the night. At 6:20 p.m., the jury sent a note stating, “[w]e would like to have instructions regarding the importance of a single witness in a case versus multiple witnesses and the instructions about the meaning of reasonable doubt read back to us.” (S.A. 136). At 6:43 p.m., it also asked, “[t]o hear Megan Torres’ testimony regarding Terrance Mack’s leaving of the crime scene.” (S.A. 137). The 16 prosecution, defense counsel, and the trial judge all agreed that Megan Torres had given no such testimony. (T. 787:15-788:14). These questions all showed that the jury was struggling with the issues at the heart of the case: namely the fact that the prosecution’s case ultimately relied solely on a single witness, Megan Torres. The jury was clearly struggling to decide whether, in these circumstances, the prosecution had discharged its burden of proof. It was entitled to, and the integrity of the trial required, the guidance of the trial court. Yet none of these questions was ever answered. At 8:10 p.m., the court simply accepted the jury’s verdict, without seeking to assure itself that the jury had been able to overcome the difficulties and confusion underlying its critical questions. Not having any insight into the closed box of the jury’s deliberations, it is now impossible to know whether the jurors were able to properly recollect the law that had been explained to them many hours before, prior to reaching an impasse, and to resolve their apparent misapprehension of the content of Megan Torres’ testimony. However, it is indisputable that the jury benefitted from no guidance from the court on these crucial issues. By extension, the Respondent was necessarily deprived of the procedural assurance that his verdict was rendered by a properly instructed jury. While the Court may want to inject greater flexibility into the O’Rama procedure and thus lower the tide of O’Rama-based appeals in the system, this case