The Necessity of Preservation for Appeal

While defendants may appeal certain rulings that took place during a trial, these issues must have been preserved properly for appeal. In People v. Bailey (Ct. App. 6/14/2018) (Rivera, J.) (6-1), the Court of Appeals held that in order to object to a trial court’s lack of inquiry following an outburst into a juror’s impartiality, the defendant must preserve the objection. Additionally, the Court found that testimony about gang customs and practices was not excessive.

This case stemmed from a trial in which defendant and two inmates were being prosecuted for assault of another inmate when they were all incarcerated at Manhattan Detention Complex. During the trial, defendant’s counsel sought to elicit statements that supported defendant’s theory that his assault was to protect himself after the complainant started a fight due to a codefendant using a racially derogatory term in his direction. On cross-examination, the defendant’s attorney asked if one of the codefendants provoked him and called him an “old n*****.” When complainant said he was not provoked and did not remember if that particular phrase was used, counsel persisted.

On defense counsel’s sixth reference to the derogatory word, a juror had an outburst. The juror demanded that counsel stop using the word or she would leave. The court admonished the juror, and then told counsel to not use the word any more. Defendant’s counsel moved for a mistrial, because the juror poisoned the rest of the jury and biased them all against the defendant and his counsel. The court disagreed with counsel and denied the motion for a mistrial. A codefendant’s counsel suggested a remedy of striking the juror, but at no time did defendant’s counsel advocate for this remedy. The court also denied the suggested remedy by a codefendant’s counsel of asking the juror if she could be fair or impartial. The judge did give an instruction not to speak from the jury box and to let the court know if any of the jurors believed they could no longer be fair or impartial.

Later in the trial, the prosecution elicited statements from an investigator regarding evidence of the three defendants’ membership in the “Bloods” to go to their motive to commit this crime. The court instructed the jury that the evidence was not to be considered for propensity purposes. Following this instruction, defense counsel did not object. The defendant was convicted by the jury and sentenced to seven years. All of the judgments were upheld by the Appellate Division,

To preserve an issue for appeal, counsel must raise an objection and state the grounds of that objection contemporaneously or at any subsequent time in which the court had an opportunity of effectively changing the same. The defendant alleged that the court failed to question the juror who made the outburst or take any corrective action. The Court, however, was unpersuaded that the issue was preserved for appeal simply because defendant’s counsel said that the juror was “grossly unqualified.” The Court stated that this was insufficient to preserve his Buford claim that the trial court had to make an inquiry into the juror’s ability to be impartial. There was no excuse for counsel’s silence,  because he in fact did join in other counsel’s objections throughout the trial, but failed to do so in this instance. The Court went as far as to say, “Defense counsel’s silence while another attorney made a last-ditch plea to the court for a minimal inquiry of the juror confirms that counsel had no interest in hearing again from the juror and was locked into the sole remedy of a mistrial.”

The defendant also claimed that he preserved the issue for appeal simply by way of his codefendant’s objection was also found to be unpersuasive by the court. As the court recognized in People v. Buckley, for tactical reasons, codefendants may take different positions on what they would like the jury to be instructed on and therefore a defendant cannot rely on the request of a codefendant to preserve the issue for appeal.

The defendant also took issue with the testimony regarding the Bloods gang, stating that it was too extensive and thus prejudicial. However, the People may use such evidence so long as they are not eliciting it for the purpose of examining a defendant’s criminal propensity. The Court found that here, the evidence was used to show the defendant’s motive and intent to join the assault on the complainant and provided necessary background regarding the relationship between codefendants. The trial court’s instruction mitigated any finding of error.

Therefore, the Court affirmed the order of the Appellate Division. Judge Wilson dissented because he believed that defendant’s counsel asking for the removal of the juror was sufficient to satisfy the purposes of the preservation rule. (JC/LC)

 

 

 

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