In De Lucia a majority of this court determined that a new trial was not required unless it was found that the unauthorized jury view actually took place.Summary of this case from People v. Rivera
Reargued May 18, 1967
Decided July 7, 1967
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, PETER T. FARRELL, J.
William Sonenshine for appellants.
Thomas J. Mackell, District Attorney ( Peter J. O'Connor of counsel), for respondent.
The issue on this appeal is the effect of an unauthorized visit by a jury to the scene of the alleged crime. Defendants De Lucia and Montella were convicted, after a jury trial, of attempted burglary in the third degree and of possession of burglar's instruments. The Appellate Division unanimously affirmed. By a closely divided court, we upheld the conviction, stating that "It has long been familiar law that jurors may not impeach their own duly rendered verdict by statements or testimony averring their own misconduct within or without the juryroom." ( People v. De Lucia, 15 N.Y.2d 294, 296.)
The United States Supreme Court denied certiorari. ( De Lucia v. New York, 382 U.S. 821.) Subsequently, however, Parker v. Gladden ( 385 U.S. 363 [Dec. 12, 1966]) was decided. The case originated in Oregon, where a trial court found that a bailiff, assigned to shepherd a sequestered jury, had told them that the defendant (petitioner) was guilty and that, if there were any error in finding the petitioner guilty, the Supreme Court would correct it. The Oregon Supreme Court found that the bailiff's misconduct did not deprive the petitioner, Parker, of a fair trial.
In reversing, the United States Supreme Court found that the bailiff had, in a sense, become a witness against the defendant in contravention of his right to "be confronted with the witnesses against him". (U.S. Const., 6th Amdt.) Referring to the bailiff's comments as an "outside influence", the court stated (pp. 364-365) that it has "followed the `undeviating rule,' Shepherd v. Maxwell, 384 U.S. 333, 351 (1966), that the rights of confrontation and cross-examination are among the fundamental requirements of a constitutionally fair trial."
Prior to the decision in Parker v. Gladden, the defendants, De Lucia and Montella, brought a petition for a writ of habeas corpus in the United States District Court for the Northern District of New York. The writ was dismissed. While the appeal was pending, Parker v. Gladden ( supra) was decided. The United States Court of Appeals for the Second Circuit accordingly vacated the order of the District Court and dismissed the writ without prejudice, in order to give the New York courts an opportunity to reconsider the petitioners' claims in light of the Supreme Court decision. ( United States ex rel. De Lucia v. McMann, 373 F.2d 759, 760.)
We are not unaware, nor was the Second Circuit, that there is a distinction between this case and Parker v. Gladden. In Parker, the Oregon court had not excluded the statements of the jurors as testimonially incompetent. Rather, it found that, despite this evidence of what the bailiff had said, the defendant had not been prejudiced. Our New York case law holds that statements by jurors impeaching their own verdicts are inadmissible. (See, e.g., People v. Sprague, 217 N.Y. 373.) However, where the Supreme Court holds that a particular series of events, when proven, violates a defendant's constitutional rights, implicit in that determination is the right of the defendant to prove facts substantiating his claim. The question which, therefore, presents itself in light of Parker v. Gladden is whether we should re-examine the applicability of the traditional common-law rule to circumstances such as those present in the case at bar or whether we should compel the defendants to seek the relief to which they are constitutionally entitled in the Federal courts. We believe that the undesirability of this latter alternative indicates that a re-examination of our common-law rule with respect to jurors in impeaching their own verdict is appropriate.
In People v. Wilson ( 13 N.Y.2d 277, 280) we held that a defendant, sentenced as a multiple offender, could not attack predicate out-of-State felonies. We did not consider this a violation of his fundamental constitutional rights. We noted, however, that "If the refusal of our courts to try out the constitutional validity of the out-of-State criminal judgment amounted to a denial of defendant's fundamental rights, we would have to find some other way of protecting those rights no matter what the procedural difficulties and burdens." (Emphasis supplied.)
In this case, our refusal to allow admission of the jurors' statements would, under Parker v. Gladden ( supra), amount to a denial of defendants' fundamental constitutional rights.
The policy reason for the present rule is, of course, that we do not wish to encourage the posttrial harassing of jurors for statements which might render their verdicts questionable. With regard to juryroom deliberations, scarcely any verdict might remain unassailable, if such statements were admissible. Common experience indicates that at times articulate jurors may intimidate the inarticulate, the aggressive may unduly influence the docile. Some jurors may "throw in" when deliberations have reached an impasse. Others may attempt to compromise. Permitting jurors to testify regarding such occurrences would create chaos.
See Note, 15 Buffalo L. Rev. 217.
We attempted to balance these opposing considerations in People v. Leonti ( 262 N.Y. 256). The defendant in that case was a Sicilian, who had testified in his own behalf. After the verdict, one of the jurors swore in an affidavit that he would never believe a Sicilian under oath. We held that such an affidavit was admissible, reasoning that it did not operate so much to impeach the verdict as to prove that the juror, because of his prejudice, never became eligible to be a juror and, therefore, his vote was a nullity.
Thus, where a patent injustice to a defendant was present, we distinguished the case on a philosophical ground, although the prohibited result, the impeachment of the verdict, remained. This was a recognition that the rule against jurors' impeachment of their verdicts should not operate in every case. Where, as in the case of statements regarding juryroom deliberations, every verdict might be rendered suspect, and jurors might become subjected to continuous posttrial harassment, the public policy reasons for holding such statements inadmissible must ordinarily override possible injustice to a defendant, for here our jury system itself is at stake.
Statements concerning outside influences on a jury, however, occurring less frequently and more susceptible to adequate proof, should be admissible to show that the defendant was prejudiced, for here the danger to our jury system is minimal compared with the more easily proven prejudice to the defendant.
In the instant case, it appears that several jurors not only went to the scene, but actually re-enacted the alleged crime.
To use the reasoning of the Supreme Court in Parker v. Gladden ( supra), these jurors became unsworn witnesses against the defendants in direct contravention of their right, under the Sixth Amendment, "to be confronted with the witnesses" against them.
Our re-evaluation of the common-law rule that jurors may not impeach their own verdicts reveals that in the case of such inherently prejudicial "outside influences" on a jury as were here present, the violation of the defendants' Sixth Amendment rights outweighs the policy reasons for the rule.
"Without destroying the rule where it properly applies we should hold that it does not apply to a situation like this where the investigation is not as to what happened in the juryroom or why, but as to a fact (illegal view) which has always been considered to be a strong ground for setting aside a verdict". ( People v. De Lucia and Montella, 15 N.Y.2d 294, 297, dissenting opinion per DESMOND, Ch. J.)
In this type of case, proof of the fact of the unauthorized visit is sufficient to warrant a new trial without proof of how such visit may have influenced individual jurors in their juryroom deliberations. Such a visit, in and of itself, constitutes inherent prejudice to the defendants.
Since the District Attorney has never had an opportunity to examine the jurors regarding their statements, we remit this case to the trial court for a hearing in regard to the petitioners' allegations and, in the event the allegations of the petitioners are substantiated, the judgments of conviction should be vacated and a new trial ordered.
The questions at issue are (1) whether the recent decision of this court in People v. De Lucia ( 15 N.Y.2d 294) should be overruled out of hand as wrongly decided, and the minority view made to prevail as expressed in the dissenting opinion therein or, if not, then (2) whether that decision has been overruled on Federal constitutional grounds by the United States Supreme Court in Parker v. Gladden ( 385 U.S. 363) as interpreted by the United States Court of Appeals, Second Circuit, in United States ex rel. De Lucia v. McMann ( 373 F.2d 759). The latter involved a Federal writ of habeas corpus sued out after the United States Supreme Court denied certiorari to review our decision in 15 N.Y.2d 294 affirming the judgments of conviction ( 382 U.S. 821). On the previous appeal to our court we treated as being before us affidavits on a motion for new trial which set forth the same facts as were presented in the application for a Federal habeas corpus. The Second Circuit vacated the order of the District Court denying habeas corpus, with directions that the petition be dismissed without prejudice "in order to give the New York courts an opportunity to reconsider the previous disposition of appellants' claims" (373 F.2d, supra, pp. 760, 762). The opinion of the Second Circuit indicated that it disapproved our decision at 15 N.Y.2d 294, and that if we did not overrule it on reargument the Second Circuit would do so on a subsequent Federal writ of habeas corpus. We are thus confronted, in a sense, with Hobson's choice, although the Second Circuit did say that mandating on the States the criminal jury trial provision of the Sixth Amendment to the United States Constitution was a "newly articulated federal right" and implied that our view on this question was sought before a binding order was made in a later Federal habeas corpus proceeding. In deference to the Second Circuit, we granted reargument of the former appeals. The views of the Second Circuit are entitled to respect, but we are not bound by them; we are bound, on Federal questions, under the rule of stare decisis by the decisions of the Supreme Court. That means that we are bound by Parker v. Gladden ( 385 U.S. 363), but not by the views expressed in the opinion in United States ex rel. De Lucia v. McMann ( 373 F.2d 759).
The majority opinion of this court on reargument appears to hold both that our original decision affirming these convictions was wrong and that it was overruled by the Supreme Court in Parker v. Gladden. I think that our former decision was right and that it does not conflict with Parker v. Gladden. If the facts had been the same as in the Parker case, our original decision would have been different under established New York law.
What was new about the Parker case is that it held the trial by jury requirement of the Sixth Amendment to the United States Constitution to have been mandated on the States by the Fourteenth Amendment. That, in itself, has nothing to do with whether jurors shall be allowed to impeach their own verdict. We are not concerned now with whether Parker v. Gladden means that our State constitutional guarantee of trial by jury (art. 1, § 2), and the decisions construing it, have wholly or partly been superseded by the Sixth Amendment to the United States Constitution, nor whether indictment by Grand Jury in the case of felonies has been rendered inviolate against State action by the Fifth Amendment (it has been superseded, for practical purposes, by information by the District Attorney in about three fourths of the States), nor whether the Seventh Amendment forbids the States to limit or abolish trial by jury in civil suits at common law where the value in controversy exceeds $20, although these questions are foreshadowed by that important decision.
The point at issue here is whether, assuming as we must, that this portion of the Sixth Amendment is mandated on the States, there is anything in it which requires the acceptance of affidavits by jurors to impeach their verdict. The majority opinion intimates that there is no such requirement in every case, without stating where to draw the line. Parker v. Gladden held that the Sixth Amendment, mandated on the States, did require a new trial where the court bailiff, having the trial jury in charge, stated to one of the jurors in the presence of others that the defendant was guilty and that if there were anything wrong in finding him guilty the Supreme Court would correct it. The court said that these expressions "were `private talk' tending to reach the jury by `outside influence.' Patterson v. Colorado, 205 U.S. 454, 462" (385 U.S., supra, p. 364). That has long been the law in New York State, under the corresponding provision of the New York State Constitution (art. 1, § 2). Thus in Wilkins v. Abbey ( 168 Misc. 416) affidavits of jurors were received and considered which showed misconduct on the part of the deputy sheriff in charge of the jury who tried to influence their verdict. After stating that it is well settled on grounds of public policy that jurors will not be permitted to disclose their own misconduct, the court said (p. 420): "There is a legitimate distinction between the acts of the jurors themselves during the trial of the case, even outside the jury room, or the deliberations of the jury in the jury room, and the influences which are called into play by outside forces and which are extraneous to their deliberations. Sound public policy is promoted by shielding the discussions of the jury from disclosure but this policy does not require that force brought to bear improperly on the jury from without shall be similarly protected against disclosure. ( Ayres v. Village of Hammondsport, 13 Civ. Prac. Rep. 236, 77 N.Y. St. Repr. 706.) There is little danger, in my judgment, that the recognition of such a rule will encourage the unsuccessful litigant to attempt to persuade jurors to swear to misconduct on the part of officers having them in charge, and none at all that freedom of discussion in the jury room will be impaired. * * * When an officer has threatened or coerced a jury in any way, he should not be shielded by a rule that was framed to meet another situation and a party whom such acts may reasonably be supposed to have prejudiced should not be deprived of what may be the only means of securing evidence of such misconduct." (Italics supplied.)
In Schrader v. Gertner ( 282 App. Div. 1064), the Second Department said (pp. 1064-1065): "Although it is a well-settled rule of public policy that affidavits of jurors will not be received to impeach the verdict ( People v. Sprague, 217 N.Y. 373, 381; Dalrymple v. Williams, 63 N.Y. 361; Williams v. Montgomery, 60 N.Y. 648; Payne v. Burke, 236 App. Div. 527; Clum v. Smith, 5 Hill 560), they may be considered where they show misconduct on the part of other persons in their dealings with the jurors ( Green v. Telfair, 11 How. Prac. 260; Reynolds v. Champlain Transp. Co., 9 How. Prac. 7; Thomas v. Chapman, 45 Barb. 98; Wiggins v. Downer, 67 How. Prac. 65; Wilkins v. Abbey, 168 Misc. 416; People v. Smith, 187 N YS. 836)."
Fisch on New York Evidence (1959 ed., p. 184) says that the rule does not "forbid the introduction of their testimony or affidavits to establish the misconduct of a third person in regard to the jurors", and the same is stated in Richardson on Evidence (9th ed., p. 434).
It is thus clear that the New York rule is of long standing that jurors' affidavits are admissible under the circumstances presented in Parker v. Gladden, and there is nothing in the opinion or decision therein which indicates that the Supreme Court would have failed to draw a similar distinction or intended to compel the use of testimony by jurors to impeach their verdict to a greater extent than has been done in this State all along.
Not being constrained by Parker v. Gladden, the question remains whether we should hold that our carefully considered decision in 1965 at 15 N.Y.2d 294 should be overruled, and what Wigmore described as the "firmly settled" law (except in a few jurisdictions) changed on account of some alteration in a public policy which dates from the decision by Lord MANSFIELD in 1785 in Vaise v. Delaval (1 Term Rep. 11). This rule did not spread to every jurisdiction in the United States, with the exception of Iowa ( Wright v. Illinois Miss. Tel. Co., 20 Iowa 195) and a few others, merely out of regard for the name of Lord MANSFIELD or due to some esoteric doctrine that a witness shall not be heard to allege his own turpitude. As was said in Payne v. Burke ( 236 App. Div. 527, 529) by Justice EDGCOMB, who had an unusually large trial experience as lawyer before coming to the Fourth Department: "The reason for this rule is founded on sound public policy. If jurors, after they have been discharged and have mingled with the public, were permitted to discredit the verdict which they had solemnly rendered in open court, no verdict would be safe, and judgments would rest on a very uncertain foundation. The consequences of such practice would be most mischievous; it would open the door for tampering with jurors, and would make it easy for a corrupt or dissatisfied juror to destroy the very verdict to which he had deliberately given his assent under the sanction of an oath. Jurors would constantly be importuned by dissatisfied litigants, and pressed for affidavits upon which their verdict might be assailed. Every trial lawyer knows full well how easy it would be to find some complacent juror who would yield to such appeal. If such practice were countenanced, few, if any, verdicts would survive, and there would be no end to litigation. ( McDonald v. Pless, 238 U.S. 264; Tyler v. Stevens, 4 N.H. 116; Blodgett v. Park, 76 id. 435; Tenny v. Evans, 13 id. 462; Keith v. State, 7 Okla. Cr. 156.)"
The affidavit of a juror, held to be incompetent in Payne v. Burke, charged that a fellow juror had, in a conversation in the street, stated that he "had it in for" plaintiff and that he "was going to beat" him irrespective of the evidence.
That the rule extends to occurrences out of as well as within the juryroom is also manifested in Davis v. Lorenzo's, Inc. ( 258 App. Div. 933). There, as here, affidavits were submitted on a motion to set aside the verdict of the jury upon the ground that one of its members had made an outside investigation. The court said: "Statements made outside of court by a juror following the trial, as well as affidavits made by a juror after the trial, may not be used to impeach the verdict of the jury. ( People v. Sprague, 217 N.Y. 373; Gregory v. Bijou Theatre Co., 138 App. Div. 590; Payne v. Burke, 236 id. 527.) All concur."
Lord MANSFIELD himself was clearly aware of the reason for the rule. In Vaise v. Delaval ( supra) and in Owen v. Warburton (1 Bos. Pul. N.R. 326, 329-330) it was sought to impeach verdicts on the ground that the jury had decided the cases by chance. In the case last cited Lord MANSFIELD said: "The affidavit of a juryman [to the jury's misconduct] cannot be received. It is singular, indeed, that almost the only evidence of which the case admits, should be shut out; but, considering the arts which might be used if a contrary rule were to prevail, we think it necessary to exclude such evidence. If it were understood to be the law, that a juryman might set aside a verdict by such evidence, it might sometimes happen, that a juryman, being a friend to one of the parties, and not being able to bring over his companions to his opinion, might propose a decision by lot, with a view afterwards to set aside the verdict by his own affidavit, if the decision should be against him."
The United States Supreme Court was aware of these factors in 1915 in deciding McDonald v. Pless ( 238 U.S. 264, 267-268): "Let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference."
These considerations apply equally to receiving affidavits or testimony of jurors to impeach their verdict by showing that they visited the scene of a crime or place of a disputed transaction as they do to discussion in the jury room. Each equally opens the way to sinister and ulterior attempts by corrupt defeated litigants to impugn adverse verdicts by unscrupulous methods. Few rules are more deeply embedded in the jurisprudence of the State than this one designed to free jurors from harassment in the performance of their duties and to protect the integrity of their verdicts ( Coster v. Merest, 3 Brod. Bing. 272; Clum v. Smith, 5 Hill 560; Williams v. Montgomery, 60 N.Y. 648; Dalrymple v. Williams, 63 N.Y. 361; Mitchell v. Carter, 14 Hun 448; Dean v. Mayor, 29 App. Div. 350; People v. Sprague, 217 N.Y. 373; Payne v. Burke, supra; Haight v. City of Elmira, 42 App. Div. 391, 394; People v. Gallagher, 75 App. Div. 39; Perry v. New York Cent. H.R.R.R. Co., 169 App. Div. 83; Schrader v. Gertner, supra; Fahey v. South Nassau Communities Hosp., 197 Misc. 490, 492; Wilkins v. Abbey, supra; Atikian v. Chang Wen Ti, 153 Misc. 881, 882).
Exceptions are recognized which fall outside of the scope and policy of the rule, such as where the foreman of a jury by mistake announces a verdict different from that agreed upon by the jury ( Dalrymple v. Williams, supra), where jurors' statements would show misconduct on the part of other persons in their dealings with the jurors ( Schrader v. Gertner, supra), where before a juror was accepted he concealed facts which it was his duty to disclose and which, if made known, doubtless would have resulted in his being excused ( McHugh v. Jones, 258 App. Div. 111) and possibly some other restricted situations. This does not reflect "across-the-board" application to all statements of jury misconduct ( United States ex rel. De Lucia v. McMann, supra, p. 761, n. 1). Like many other legal principles, this rule represents a choice between evils. Its widespread acceptance attests a sound foundation in experience. As in the case of most legal rules, minor faults can be found in it (e.g. State v. Kociolek, 20 N.J. 92). It is said that a rule against self-stultification by a witness makes no sense. The use of that maxim in formulating the rule was merely an Englishman's instinct to rationalize (often imperfectly) a strong common sense. The rule is said to be unequal in that it would admit testimony of an eavesdropper who would be subject to punishment by contempt for overhearing a jury's deliberations ( Matter of Choate, 18 N.Y. Civ. Pro. Rep. 180, 24 Abb. N.C. 430, cert. dsmd. sub nom. People ex rel. Choate v. Barrett, 56 Hun 351, affd. 121 N.Y. 678). This could easily be avoided by excluding the testimony of any person who is spying on their proceedings as was held or implied in Reich v. Thompson ( 346 Mo. 577) and Acosta v. State (126 Tex.Crim. Rep.).
There must certainly be limits to post-verdict inquisitions of jurors to determine whether their verdict has been "contaminated." The New Jersey Supreme Court (BRENNAN, J.) intimated in State v. Kociolek that jurors' testimony should only be excluded as to their mental processes. The majority opinion on reargument of the case at bar seems not to go quite so far by suggesting, although not stating, that jurors should be subject to questioning afterward with regard to anything except "jury room deliberations." This introduces a host of difficulties. Assume, for example, that jurors chose to arrive at a verdict by the flip of a coin or by drawing lot. That would be something occurring in the juryroom. It was what gave rise to the rule in the beginning under Lord MANSFIELD. Under the majority ruling herein, would jurors' affidavits or testimony concerning that be admissible? It is well known that in automobile negligence cases most verdicts are, to a greater or less degree, compromise verdicts. That is not done strictly according to law, and where proved is ground for reversal ( Kepner v. Barry, 24 A.D.2d 825). In the case of Wright v. Illinois Miss. Tel. Co. ( 20 Iowa 195, 210-212, supra), decided in 1866, which has ever since been the chief arsenal of attack upon this rule, it was said in the opinion that jurors should not be questioned concerning matters that "essentially inhere in the verdict itself" but that this would not preclude questioning the jurors concerning whether "the verdict was determined by aggregation and average or by lot". (Italics supplied.) The Iowa rule is to admit jurors' affidavits to prove misconduct in determining damages by average ( Forshee v. Abrams, 2 Iowa 571; Manix v. Malony, 7 Iowa 81; Wright v. Illinois Miss. Tel. Co., supra). Jurors are constantly importuned by Trial Judges to compromise their differences where they can conscientiously do so, and, if members of the jury could be interrogated after verdict in every case in order to determine whether they had added the damages to which each thought the plaintiff was entitled and divided by 12, or had sacrificed opinions previously expressed regarding liability or nonliability in order to extract concessions from other jurors concerning the amount of the verdict or the awarding of some recovery, the negligence court calendars would be even more congested than they are. One of the advantages asserted in favor of jury trials is that jurors bring to bear upon the point at issue their varied individual experiences of life. Are verdicts to be set aside if afterward it is made to appear that they were irregularly reached by the recounting in conference of personal experiences bearing upon the questions of fact to be decided? Are they to be interrogated afterwards concerning whether any of them may have, in effect, testified to the other jurors as expert witnesses having special knowledge in particular fields of endeavor? These are not fanciful instances. All of them have resulted in verdicts being set aside in the comparatively few jurisdictions where the rule to which we adhered in People v. De Lucia ( 15 N.Y.2d 294, supra) has not been followed. Do the majority mean that the jurors cannot be interrogated afterwards concerning any juryroom deliberations, or is this principle to be subject to exceptions "where a patent injustice to a defendant was present"? (quoting from majority opinion). Is the term "juryroom deliberations" equivalent in meaning to matters "inherent in the verdict" which is the usual expression employed by those opposed to the rule, and may even refer to the "mental processes" of the jurors (cf. State v. Kociolek, supra)? All of the decisions, for the rule and against it, appear to be agreed that jurors cannot be questioned concerning faulty reasoning which may have produced a verdict, but where is the line to be drawn between defective reasoning and extraneous factors, among which the cases against the rule generally combine compromise verdicts, personal experiences or expert knowledge of jurors, biases for or against particular kinds of people more or less resembling parties to the action, viewing the place of the transaction, and a multitude of other "extraneous factors" which are to be distinguished from and contrasted with what is merely "wrong reasoning." The court calendars, it seems to me, are congested enough as it is without opening all of these post-verdict fields of investigation and litigation.
Our decision at 15 N.Y.2d 294 was right and the judgments of conviction should be affirmed.
Chief Judge FULD and Judges BURKE and BREITEL concur with Judge KEATING; Judge VAN VOORHIS dissents and votes to affirm in an opinion in which Judges SCILEPPI and BERGAN concur.
Upon reargument: Determination withheld and matter remitted to the Supreme Court, Queens County, for further proceedings in accordance with the opinion herein.