holding that the use of the word "think" does not automatically render a juror's statement equivocalSummary of this case from Afrika v. Conway
Decided March 19, 2002.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of that Court, entered May 2, 2001, which affirmed judgment of the Monroe County Court (Philip B. Dattilo, Jr. J.), rendered upon a verdict convicting defendant of murder in the second degree. People v. Chambers, 283 A.D.2d 904, affirmed.
Edward J. Nowak, Public Defender, Rochester (James Eckert of counsel), for appellant.
Howard R. Relin, District Attorney, Rochester (Wendy Evans Lehmann and Stephen K. Lindley of counsel), for respondent.
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur in per curiam opinion.
OPINION OF THE COURT
After a jury trial, defendant was convicted of murder in the second degree. The sole issue on appeal is whether a prospective juror should have been excused for cause after acknowledging during voir dire that in his view, "trained police officers are good observers" and that he "would tend to believe police testimony to some degree." The following colloquy occurred:
"[DEFENSE COUNSEL]: I just want to be sure a juror isn't going to give [police] testimony any more weight than anyone else. Are you telling me you would do that?
"[PROSPECTIVE JUROR]: I would try not to let it affect that. I don't think it would be a problem.
"[DEFENSE COUNSEL]: Well, I think if it's on your mind, it may be a problem. Do you think that it could affect you, your ability to be fair and listen fairly to police testimony?
"[PROSPECTIVE JUROR]: No, I don't think so."
Defense counsel moved to excuse the prospective juror for cause, arguing that he would be biased toward police testimony. After the trial court denied the challenge, the defense excused the prospective juror by peremptory challenge, and subsequently exhausted its peremptory challenges. A divided Appellate Division affirmed the conviction.
As we have repeatedly made clear, a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial. Here, as the Appellate Division majority correctly concluded, even if the prospective juror's statements raised a serious doubt, he ultimately stated unequivocally that he could be fair.
Defendant argues that while "no" alone would have been unequivocal, the prospective juror's answer — "No, I don't think so" — was equivocal. "Think," however, is not a talismanic word that automatically makes a statement equivocal (see People v. Blyden, 55 N.Y.2d 73, 78["the juror's use of the word `think' might not in every case render his or her words inadequate"]). The juror's statements here, taken in context and as a whole, were unequivocal. Thus, it was not error for the trial court to deny defendant's challenge for cause.
We add this observation. Time and again this Court has been called upon to measure a particular statement by a prospective juror against the clear legal standard requiring an unequivocal assertion of impartiality (see e.g. People v. Bludson, 97 N.Y.2d 644, ;People v. Arnold, 96 N.Y.2d 358; People v. Johnson, 94 N.Y.2d 600). For more than a century, a juror's use of the word "think" has been challenged as equivocal (see e.g. People v. Martell, 138 N.Y. 595, 600). We therefore remind trial courts that, when a prospective juror qualifies a "yes" or "no" response regarding the ability to be fair with words such as "I think" or "I'll try," an additional question or two at voir dire would easily dispel any doubt as to equivocation, assure an impartial jury, and avoid the delay, and risk, of appeals.
Accordingly, the order of the Appellate Division should be affirmed.