Mode of Proeedings Errors and Jury Notes

In 1991, the Court of Appeals in People v. O’Rama articulated the proper procedure a court should go through when there is a note from the jury during the course of a trial: Upon receiving a jury note, a trial court should (1) mark the note as a court exhibit and read it into the record before the jury is called in (thereby ensuring adequate appellate review); (2) afford counsel an opportunity to suggest responses to the note; (3) inform counsel of the substance of the court’s proposed response (thereby giving counsel an opportunity to suggest appropriate modifications before the jury is returned to the courtroom); and (4) read the note aloud in open court before the jury so that any inaccuracies may be corrected by the individual jurors.

In People v. Morrison (Ct. App. 6/28/2018), the Court of Appeals, in an unsigned memorandum affirming the order of the Appellate Division, held that the trial court’s failure to provide counsel with meaningful notice of a substantive jury note was a mode of proceedings error that required reversal. This decision by the Court drew dissents from Chief Judge DiFiore as well as Judge Garcia.

The case stemmed from the rape of a 90-year-old Alzheimer’s patient in her nursing home. The victim reported the rape to nursing home staff, identifying the defendant as the perpetrator. A physical examination and rape kit revealed a laceration and the presence of semen in her vagina. DNA testing confirmed that the defendant was the source of the semen. The defendant later confessed, providing graphic details of the sexual assault. He was arrested and tried. During jury deliberations the jury sent multiple notes to the court, all of which were marked as exhibits and discussed. On the second day of deliberations, the court received more notes from the jury. Juror note #7, the one at issue on appeal, stated that the jurors had reached their decisions on charges two and three but had not decided the first charge which, they stated, would take a while. The court marked this note – in the presence of both counsels – as an exhibit and convened the jury in the courtroom. The judge then asked the jury to continue deliberations. The next day, Defendant was convicted of Rape 1º, Sexual Abuse 1º, and Endangering the Welfare of a Vulnerable Elderly Person 2º. He was sentenced to twenty-five years’ imprisonment.

The defendant appealed, citing Brady and Rosario violations, but the Appellate Division affirmed the convictions. Eight years later, for the first time, the defendant raised the issue of juror note #7 in a coram nobis petition. The Appellate Division, finding that the appeal did have merit, vacated its prior order and reconsidered. Upon reconsideration, the Appellate Division reversed the judgment, holding that the trial court’s failure to advise counsel on the record of the contents of jury note #7 was a mode of proceedings error warranting a new trial. The Court of Appeals affirmed the order with three judges dissenting.

In her dissent, Chief Judge DiFiore, relying on her dissent in People v. Parker (companion case also decided 6/28/2018), focused on alternative methods for determining whether or not a mode of proceedings error had occurred rather than applying a per se rule of reversal. Chief Judge DiFiore stated that when, as in Morrison, there is sufficient ambiguity in the record as to whether or not defense counsel had meaningful notice as to the contents of a jury note, a reconstruction hearing is warranted.

In his dissent, Judge Garcia (J. Feinman concurring), advocated for the end of the O’Rama rule and for it to no longer bind the Court. 30 years ago when O’Rama was decided, it merely applied the mode of proceedings exception to an irregularity in the trial court’s handling of a jury note. Judge Garcia has described the 30 years since that decision as the opening of “Pandora’s Box.” Subsequent decisions relying on O’Rama have created harsh results. The decisions created the anomaly that if a court failed to give a defense attorney “meaningful notice” of a juror note, rather than simply asking for the contents of the note, or lodging any form of an objection, defendants in these circumstances are better off remaining silent and hoping for an acquittal. In the event of an unfavorable verdict, their claim will secure an automatic reversal on appeal. This not only encouraged gamesmanship in the courtroom, but it allows attorneys to subvert the preservation rule which guides all other aspects of the law.

Here, as Judge Garcia argues, the record supported an inference that defense counsel received meaningful notice of the contents of jury note #7 during an unrecorded proceeding before the court responded to the jury’s inquiry. The court had marked the exhibit in the presence of both counsels. As the record demonstrates, the trial court’s practice when receiving jury notes was to formulate a response “together with the attorneys” in a collaborative process that, apparently, was generally unrecorded. It was at this point that the court asked the jury back into the courtroom, and instructed them to keep deliberating. But because the note was merely not read into the record, this constituted a mode of proceedings error and required a new trial. But more importantly, O’Rama survives.  (MK/LC)

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