The People, Respondent,v.Miguel Mejias, Appellant.BriefN.Y.Mar 19, 2013 1 INDICT. #2972/08 To be argued by: John R. Lewis, Esq. 15 minutes requested COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, -AGAINST- MIGUEL MEJIAS, DEFENDANT-APPELLANT. APPELLANT MIGUEL MEJIAS’S REPLY BRIEF John R. Lewis, Esq. Attorney for Appellant Mejias 36 Hemlock Drive Sleepy Hollow, NY 10591 (914) 332-8629 (tel.) (914) 332-8629 (fax) 2 TABLE OF CONTENTS Page Table of Authorities………………………………………………..3 Preliminary Statement……………………………………………...4 ARGUMENT POINT I: THE PEOPLE HAVE FAILED TO SHOW THAT THE TRIAL COURT FAILURE TO CONDUCT A “PROBING AND TACTFUL” INQUIRY OF JUROR #10 WAS NOT REVERSIBLE ERROR……………………………………………………………..4 A. The Point is More Than Adequately “Preserved”……….4 B. The Substantive Argument………………………………6 C. Appellant Need Not Show Prejudice; and the Error Was In Any Event Not Harmless…………………………………12 POINT II: THE PEOPLE HAVE FAILED TO SHOW THAT AGENT FLAHERTY’S “INTERNATIONAL DRUG TRADE” TESTIMONY WAS RELEVANT AND NON-PREJUDICIAL…...14 A. The Argument is Preserved……………………………...14 B. The Substantive Argument……………………………...15 C. The Error Was Not Harmless…………………………...18 Conclusion…………………………………………………………18 3 TABLE OF AUTHORITIES Page People v. Brown, 97 N.Y. 2d 500 (2002)………………………………11 People v. Buford, 69 N.Y. 2d 290 (1987)……………………………..6-8 People v. Chestnut, 19 N.Y. 3d 606 (20--)…………………………….15 People v. Cosby, 271 A.D. 2d 353 (1 st Dept. 2000)……………………11 People v. Gonzalez, 232 A.D. 2d 204 (1 st Dept. 1996)………….……..11 People v. Gordon, 77 A.D. 3d 662 (2 nd Dept. 1980)…………………..13 People v. Matiash, 197 A.D. 2d 794 (3d Dept. 1993)………..…...8-9, 11 People v. McClenton, 213 A.D. 2d 1 (1 st Dept. 1995)…………………13 People v. Negron, 136 A.D. 2d 523 (1 st Dept. 1988)……….………….18 People v. Saunders, 120 Misc. 2d 1087 (N.Y. Sup. 1983)…………13-14 People v. Shaw, 43 A.D. 3d 685 (1 st Dept. 2007)………………………12 People v. Woods, 104 A.D. 2d 322 (1 st Dept. 1984)……………………..6 4 PRELIMINARY STATEMENT Appellant Miguel Mejias (“Appellant”) hereby submits this Reply Brief in further support of his appeal, contesting his convictions for criminal possession of controlled substance first degree and conspiracy second degree. ARGUMENT POINT I: THE PEOPLE HAVE FAILED TO SHOW THAT THE TRIAL COURT FAILURE TO CONDUCT A “PROBING AND TACTFUL” INQUIRY OF JUROR #10 WAS NOT REVERSIBLE ERROR. A. The Point is More Than Adequately “Preserved” Somewhat remarkably, the People now argue that Appellants failed to preserve the objection that the trial court failed to conduct an individual examination of the juror who wrote the “we want to know under what pretext” note (R. Br. 23-26). Such argument is misguided, to say the least. 1) Initially, it should be noted that even the First Department did not find the argument unpreserved (A 18-22), although the People had made that argument before the First Department. 2) Appellant Mejias does not in any depend upon the “new” argument raised by Appellant Rodriguez, regarding the need to question both the juror who 5 wrote the note and the juror who handed it to the court (see R. Br. 23-24). Appellant Mejias’s argument rests now, as it has all along since the trial itself, only on the contention that the Court should have questioned the juror who wrote the note, and even Respondent does not contend that Mejias failed to preserve that argument. (In any event, the trial transcript shows that this could not have been more clearly preserved, T 1336-38, A 216-21, beginning with Mejias’s counsel saying “I would ask that you ask juror number ten whether she has been discussing any of the evidence with any of her fellow jurors”, A 216). Thus, Mejias’s issue with the note writer’s use of the word “we” is not based on Rodriguez’s new “two different jurors” point; rather, it is based on the simple English language meaning of the word “we”, which the writer chose to use. 3) The People protest that trial counsel failed to specifically enunciate the issues raised by the juror’s use of the word “pretext’. But, as the People themselves point out, the trial court had already decided (however invalidly) that the word “pretext” simply meant the note was “not very well written (See R. Br. 22 and 25, citing to A 216). While trial counsel did not directly argue with the “not well written” statement, counsel preserved the objection by the thoroughness with which he urged the court to question the note-writing juror individually. Had the trial court conducted the inquiry that People v. Buford (69 N.Y. 2d 290) and its 6 progeny require, all necessary information would have been elicited, including the juror’s intended meaning of the word “pretext”. Moreover, the People seem to imply that the “nefarious” meaning of the word “pretext” urged by Appellants is somehow something new, somehow a “novel” argument that clever attorneys have invented for this appeal. But, as already argued in Mejias’s main brief, Appellants are merely relying on the standard dictionary definition of “pretext”, i.e.: “ostensible reason or motive assigned or assumed as a color or cover for the real reason or motive; false appearance, pretence ” (Black’s Law Dictionary, 4 th Ed.); People v. Woods, 104 A.D. 2d 322, 332 (1 st Dept. 1984). B. The Substantive Argument The People have utterly failed to show why the trial court did not commit a garden-variety Buford error in this case, in not personally examining Juror #10 (or whichever juror wrote the note to the court). Among the misstatements of law and/or logic in Respondent’s Brief: 1) Perhaps the most glaring error in the People’s argument is their failure to confront (or acknowledge) the plain holding of People v. Buford itself: In reaching its conclusion, 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 evaluated the nature of what 7 the juror has seen, heard, or has acquired knowledge of, and assess its importance and its bearing on the case. 69 N.Y. 2d at 299 [emphasis added]. The People simply ignore this language, which could not be more plainly stated. One can only wonder aloud: what part of “individually in camera” do the People not understand? The above quotation is the law of New York on this question, and nothing less. (Yet, the People maintain with a straight face that in asking one generalized question of the entire group, “the judge did more than what the law required”, R. Br. 33). 2) The People apparently do acknowledge the “probing and tactful inquiry” language (R. Br. 27). What was “probing” about the single, general question posed by the court to the jury as a whole in this case? The People protest that how to handle such situations are “entrusted to the sound discretion of the trial court” (R. Br. 27). First of all, this is not true. “How to handle such situations” is governed by Buford and its progeny, i.e. the law of New York. Moreover, assuming arguendo the trial court did have discretion here, clearly that discretion was abused. The trial court’s only stated reason for not conducting an individual inquiry was a desire “not to isolate a juror”. But nowhere in New York jurisprudence is “not isolating a juror” stated to be an overriding concern. Certainly, in a balancing test against a criminal defendant’s well-established right to trial before a proper jury, “non-isolation” is of little or no 8 weight. 3) As for whether the jury note indicated premature discussions by jurors, again, Mejias does not rely on the argument raised by Rodriguez that one juror wrote the note and another handed it to the court. Nor does Mejias accept the People’s absurd assertion that “the only inkling of support for defendants’ speculation that the jurors discussed the case at all is that the judge admonished the jurors in the box for speaking aloud to one another” (R.Br. 31). Rather, Mejias relies on the plain meaning of the word “we”, in the phrase “we want to know”. Contrary to the People’s “it’s speculative” argument, there is nothing speculative about “we”. It means what it means. At the very least, the word “we” raises enough of a presumption of multiple individuals that a probing inquiry is clearly called for. The answer to the People’s bland assertion that jurors “are presumed to follow the legal instructions they were given” (R. Br. 32) is that such “presumption” only persists until evidence to the contrary is presented. The juror’s note provided that evidence to the contrary. 4) The People cite People v. Matiash, 197 A.D. 2d 794 (3d Dept. 1993) as if it supported their argument that the trial court’s handling of the juror situation was sufficient, when in fact Matiash shows the opposite. In Matiash, the trial 9 court did in fact conduct an in camera interview with the source of the information that jurors may have been prematurely deliberating, i.e. the third party who claimed to have witnessed this. Upon probing inquiry, it became clear that the purported conversation between jurors was about innocuous matters not related to the merits of the case. This is precisely what the trial court did not do in the present case. Had the trial court conducted an in camera interview of the “source” of the issue, i.e. juror no. 10, there would be a record as to whether or not any conversation between the “we” jurors referenced in her note was “innocuous”. But the trial court did not do so, despite counsel’s entreaties. Matiash supports Appellants’ argument. In addition, in this context the People’s contention that at trial “none of the defendants suggested that the manner in which the judge chose to handle this situation was flawed” (R’s Br. 33) is mind-boggling. Appellant Mejias respectfully refers Respondent to transcript pages 1333-38 (A 216-21). 5) The People argue that the earlier incident regarding juror’s complaint about the “odiferous juror” proves that the jurors would not have been too timid to admit it if they had been discussing the case prematurely (R. Br. 34). This, too, is absurd. The early incident did not require any juror to admit misconduct, and the jurors clearly had reached a consensus that action had to be taken. It was easy to 10 come forward. The latter incident, however, would have required juror #10 and perhaps some other jurors as well, to admit having directly disobeyed the judge’s instructions not to discuss the case. This would have risked incurring the considerable anger not only of the trial judge, but also the anger of those jurors who had not been misbehaving, because it might well have required a mistrial when the trial was nearly over, after much time, effort and inconvenience had been invested in the trial by the non-offending jurors, as well as witnesses, attorneys and the judge. Under such circumstances, it was not at all easy for the offending juror(s) to come forward; more likely, said juror(s) were terrified and found it much easier to remain silent in response to the court’s single question to the group. 6) This leads to the People’s contention that it was important not to “embarrass” or isolate the offending juror(s) (R. Br. 35). The simple response is: if proper inquiry showed that the juror note was truly “innocuous”, there would be no embarrassment. If, however, the note proved not to be innocuous, then the defendants’ constitutional right to a proper jury trial would have been compromised, and this would clearly “trump” the desire not to embarrass or isolate the offending juror(s). Notably, the People have not cited one case precedent holding that not embarrassing a juror is the overriding concern in such a situation. 11 7) The People cite a number of cases where trial judges were upheld in addressing the jury as a group (R. Br. 35). Each is inapposite to this case. In People v. Brown, 52 A.D. 3d 248 (1 st Dept. 2008), a discharged juror discussed the case with non-jurors, but there was no claim that he had discussed the case with sitting jurors, or that jurors had discussed the case among themselves. In People v. Cosby, 271 A.D. 2d 353 (1 st Dept. 2000), the issue was whether defendant’s courtroom disruptions had prejudiced the jurors, such that the “wrongful conduct” was out in the open. Moreover, since no juror misconduct was alleged, it is far less likely that any juror would feel the need to remain falsely silent in response to the court’s questioning of the jurors as a group. In People v. Gonzalez, 232 A.D. 2d 204 (1 st Dept. 1996), the Court simply stated that defendant’s “speculative” claim of jury taint was “unsupported by the record”, with no further explanation, so Gonzalez’s relevance to the facts in the present case is impossible to determine. Moreover, in that case the trial court did conduct a “probing and tactful inquiry of two jurors who were party to questionable conversation, 232 A.D. 2d at 205, making Gonzalez dubious support indeed for the People‘s position. And in Matiash, supra, as already discussed, the trial court, unlike the court in the present case, did make individual inquiry of the person who had suggested that two jurors had been discussing the case. 12 8) The People apparently find it significant that “no defendant spoke to the jurors about this matter after the verdict” (R. Br. 37). The short response is “so what”? There is, simply, no such requirement under New York law. Indeed, there is no requirement that jurors speak to attorneys at all after the case is over. To require attorneys to obtain a statement from jurors who have no legal obligation to speak would obviously make no sense, and, again, New York does not require this. Ultimately, the People are seeking, in a variety of ways, to avoid the clear and simple holding of Buford and its progeny: when there is evidence of premature discussion by jurors, the court must conduct a searching, individual in camera inquiry of the jurors involved. The People have not succeeded. C. Appellant Need Not Show Prejudice; and the Error Was In Any Event Not Harmless. The People argue that “defendant must still show prejudice in order to be entitled to a new trial” (P. Br. 27); i.e. the inevitable “harmless error” argument. But in doing so, the People fail to address, let alone refute, People v. Shaw, 43 A.D. 3d 685 (1 st Dept. 2007)(cited in Mejias’s main brief at 22), where the Court held the trial court’s failure to grant counsel’s request to individually question the juror was held “not subject to harmless error analysis”, citing CPL 270.35 and 13 Buford. Likewise, the People ignore: the similar holding in People v. McClenton, that such error affected defendant's “constitutional right to a jury trial and [he] is therefore entitled to a new trial”, without necessitating a showing of prejudice, 213 A.D. 2d 1, 7 (1 st Dept. 1995). In arguing the “speculative” nature of the claimed prejudice, the People also ignore the simple logic that harmless error analysis cannot be applied when the court’s own failure to make a record makes it impossible to demonstrate prejudice with certainty. As held in People v. Gordon, 77 A.D. 2d 663, 664 (2d Dept. 1980): The People assert that the court’s failure to make such inquiry is not reversible error absent defendant’s showing that any premature discussions the jurors might have had prejudiced defendant. However, it is difficult to see how such a showing could have been made when there was no inquiry into the nature of such discussions, if any. [emphasis added]. The same observation was made in People v. McClenton, supra. Finally, the People ignore the obvious prejudice that can be shown when jurors deliberate prematurely without resorting to any “speculation’ whatsoever: the violation of a defendant’s right to have his guilty or innocence determined by a jury of twelve persons deliberating as one. Even if prejudice needed to be demonstrated, such is easily done under the circumstance of this case, People v. 14 Saunders, 120 Misc. 2d 1087, 1090 (N.Y. Sup. 1983). All of these holdings were cited in Mejias’s main brief. All are unaddressed by the People in Respondent’s Brief. POINT II: THE PEOPLE HAVE FAILED TO SHOW THAT AGENT FLAHERTY’S “INTERNATIONAL DRUG TRADE” TESTIMONY WAS RELEVANT AND NON-PREJUDICIAL. A. The Argument is Preserved The People argue that this argument is unpreserved, yet they acknowledge: To be sure, Mejias opposed the judge’s decision to qualify Agent Flaherty as an expert…challenged the introduction of the map into evidence, and …objected to four questions posed to the agent while giving this background testimony… [and complained that] this evidence was irrelevant or improperly embellished the agent’s credentials… . (R. Br. 45). Yet, the People argue that, despite all of the above, because “neither defendant argued that it was either intended to, or had the effect of, depicting them as part of a worldwide network of drug traffickers, and thus “smeared’ them,” the objection is not preserved for appeal by this Court (Id). Again, the People are incorrect. The People seem to think that certain “magic words” have to be spoken in 15 order to preserve an objection. That is not the law. In People v. Chestnut, 19 N.Y. 3d 606, 611 (2012), this Court stated: For preservation purposes a party must make a specific objection regarding a claimed in order to afford the trial court an opportunity to correct the error. However, the preservation rule’s “specific objection” requirement should not be applied in the overly technical way the dissent urges; nor should a party’s adherence to this requirement focus on minutiae or emphasize form over substance. [emphasis added]. Clearly, Mejias’s counsel informed the trial court that testimony about the “international drug trade” was prejudicial and irrelevant to the single transaction in this case, particularly where the relevant transportation of the drugs was between California and New York, i.e. not “international”. Indeed, counsel stated: Your Honor, we should only be concerned with what the People are alleging happened in this case, not what is happening in the 20 zillion other investigations he has been part of. (Tr. 80, A 56). Surely, this was sufficient to inform the trial court that to get into the “international” aspect was prejudicial and irrelevant, under any “substance over form” analysis. B. The Substantive Argument The People’s attempt to make Agent Flaherty’s “international drug trade” testimony somehow relevant is, simply, strained. They state “the organization and 16 functioning of a drug operation is relevant to a material fact, and can therefore aid the jury in understanding the evidence and assessing guilt” (R. Br. 46). One can only ask: to what material fact is such evidence relevant? The issue of fact in this case was whether or not the defendants took various steps to oversee the transportation of one quantity of cocaine from California to New York. The “journey” that cocaine may have taken on its way to California, prior to the participation of the present defendants, was completely immaterial. Moreover, the truly relevant evidence --- such as telephone calls allegedly made by various defendants, steps they allegedly took to find a suitable location to receive the shipment, etc. --- was straightforward and easy for the jury to understand. There was nothing about it that required “expert” assistance in order to aid the jury. A juror does not need an overview of the international drug trade in order to understand how drugs were brought in one instance by truck from California to New York in this case. (This is just as true even when the quantity of drugs is “large”, despite the People’s assertion to the contrary, R. Br. 47). The fact that some of Agent Flaherty’s testimony might be relevant, such as the price of cocaine “on the street” (R. Br. 49), in no way makes the “international drug trade” testimony relevant. The People also argue that Flaherty’s “international drug trade” testimony 17 was fair because Mejias really was part of a large international drug operation, but the People support that contention mostly by reciting activities of Carlos Loveras, who was not a defendant in this case. Perhaps Loveras does operate on an “international” scale; but that does not mean that Mejias was himself an international operator. In fact, Mejias was simply one of many relative “pawns” working for Loveras. Indeed, the People have pointed to only one “internationally”-tinged activity by Mejias, a May 28 telephone call “wiring money to Mexico [at Loveras’s direction] as partial payment for the shipment of the drugs” (R. Br. 48). But, first, one telephone call does not make someone an international “player”. Second, what is there about that single phone call that was so difficult to understand that the jury needed “background” information about the international drug trade in order to comprehend it? The answer is, nothing at all; it required no such “explanation”. It was perfectly legitimate for the People to put in evidence about that phone call to Mexico, as it went directly to Mejias’s potential guilt. But that evidence did not justify Agent Flaherty’s 18-page exegesis on international drug dealing. Nor did it justify the A.D.A.’s repeating that testimony in her closing summation (A 227.1). 18 C. The Error Was Not Harmless. Finally, the People claim that there was so much evidence against the defendants that even if the court erred in admitting “international drug trade” testimony, that error was harmless (R. Br. 52). This, too, is incorrect. As stated in People v. Negron, 136 A.D. 2d 523, 526 (1 st Dept. 1988): …[W]e find the purpose of this background testimony could only have been to focus on the narcotic trade in general, thereby prejudicing the jury against defendant. “Prejudicing the jury against the defendant” deprives a defendant of a fair trial. When that happens, it is not harmless error. CONCLUSION For all of the reasons stated in this Reply Brief as well as in his Brief on Appeal, Appellant Miguel Mejias’s conviction should be reversed and vacated in its entirety. Respectfully submitted, __________________ John R. Lewis, Esq. Attorney for Appellant Miguel Mejias 36 Hemlock Drive Sleepy Hollow, NY 10591 (914) 332-8629 November 5, 2012 19 CERTIFICATE OF COMPLIANCE The foregoing memorandum was prepared on a computer. A monospaced typeface was used, namely Times Roman 14 point, with double line spacing. The total number of words in the memo is 3,707 words.