Category Archives: Trial Courts

Excited Utterances: Pinned at the Scene of the Crime

The law of the case doctrine and the excited utterance exception to the hearsay rule are two very fact-specific determinations. The law of the case doctrine is not meant to be a limitation on judicial discretion or power; however, judges should not completely disregard prior decisions made within a single case. Similarly, the foundation and basis of the excited utterance exception is crucial in determining whether it should be applied to the statements of a specific case at hand. Recently, in People v. Cummings (Ct. App. 5/8/18) (Wilson, J.) (6-1-0), the Court found that a lower court erroneously admitted such statements, leading to the conviction of the defendant, Cummings. There, the out-of-court statements were extracted from the background of a 911 call, made by an unidentified person. Continue reading

AD1 affirms trial court order setting aside verdict

In People v. Rios (1st Dept. 9/22/2011), the previous manager of a building as well as the corporate owner, were found guilty of Criminally Negligent Homicide and Reckless Endangerment 2º.   The victims in the case were two firefighters who were killed while trying to extinguish the flames.  Two of the apartments had unsafe conditions.  The first had faulty wiring.  The second had an illegal partition.  The fire started in the first apartment and then spread.  The People's theory was that the conditions in the second apartment were the cause of the firefighters' deaths and that the manager had actual knowledge of them.

Following the conviction, the trial court set aside the verdict under CPL § 330.30, finding insufficient evidence of knowledge.  The First Department agreed with the decision.  "The inferences upon which the People rely are impermissibly speculative. Furthermore, the People called the building's superintendent, who testified that he knew about the partition in 4-L but never told Rios about it. Even if the jury discredited that testimony, such disbelief would not supply affirmative proof of the contrary proposition."  (LC)

Another reversal for equivocal answers by juror

The Second Department reversed the conviction in People v. MacFarlane (2d Dept. 8/23/2011), because the trial court sat a prospective juror who had given equivocal answers to a question about police credibility.  The Defendant was on trial for Murder 2º.  During voir dire, the juror reported that several family members were police officers.  "The prospective juror expressed on two occasions her concern that she may give the testimony of a police officer more credence than she would to other witnesses. When asked if she would give no greater credibility to the testimony of police officers, the prospective juror replied, 'I would like to think that I can be fair, but it's hard.' When asked if she could evaluate the testimony of police officers in the same way as any other witness, the prospective juror answered, 'I would hope so.' Further, in response to a query from defense counsel as to whether she could be fair and impartial, the prospective juror stated, 'I'd like to think of myself as a fair person, but I — it's — I — I do give police officers a little more credence, I think, than I would other people.'"

Based on the juror's responses, the Appellate Division found that the juror should have been excused for cause.  

Lesson learned?  While it is frustrating for both jurors and attorneys, the latter must ensure that the former give unequivocal answers to questions about bias.  Jurors who remain on the fence about such an issue must be excused.  (LC)

COA reverses jury selection case in summary fashion

In People v. Johnson (Ct. App. 6/9/2011), a unanimous Court of Appeals—in a memorandum decision—reversed a defendant's conviction because of an error in jury selection.  The Defendant raised the insanity defense.  One of the prospective jurors said she wrote a college term paper on the insanity defense.  During subsequent questioning, she said that she was not sure if she could give both sides a fair trial and that she might be biased against the defense.  The Defendant exercised a peremptory challenge.

The court reversed because the trial judge should have conducted a further inquiry and either obtain an unequivocal assurance of fairness or excuse the juror for cause.  "Here, given the absence of follow-up questioning by the court after the juror expressed uncertainty concerning her ability to fairly consider a major issue in this case, the conviction must be reversed and the matter remitted for a new trial." 

Lesson learned?  Followup, followup, followup.  (LC)

Is 5 minutes enough time for voir dire?

While trial courts have wide latitude in controlling the tempo and timing of voir dire, that discretion is not absolute.  In People v. Steward (Ct. App. 6/7/2011) (Graffeo, J.) (5-2), the Court of Appeals held that the trial court abused its discretion by only permitting five minutes of questioning per round of voir dire.

The case stemmed from a robbery of a well known DJ.  Prior to jury selection, the trial judge informed the parties that they would each be given five minutes per round of voir dire.  The Defendant objected to the time limit during the first round of jury selection but not during the subsequent rounds.

The relevant statute states, "Each party shall be afforded a fair opportunity to question the prospective jurors as to any unexplored matter affecting their qualifications, but the court shall not permit questioning that is repetitious or irrelevant, or questions as to a juror's knowledge of rules of law." (CPL § 270.15(c))  The court set forth a factors test to be applied in determining whether a particular time limit is reasonable:

It would be impossible to compile an exhaustive list of all the factors that might inform a trial court's determination of this issue. But, in most cases, relevant considerations would include: the number of jurors and alternate jurors to be selected and the number of peremptory challenges available to the parties; the number, nature and seriousness of the pending charges; any notoriety the case may have received in the media or local community; special considerations arising from the legal issues raised in the case, including anticipated defenses such as justification or a plea of not responsible by reason of mental disease or defect; any unique concerns emanating from the identity or characteristics of the defendant, the victim, the witnesses or counsel; and the extent to which the court will examine prospective jurors on relevant topics. Because voir dire is a fluid process and it is not always possible to anticipate the issues that may arise during examination of the venire, it is also incumbent on counsel to advise the court if any temporal limitation imposed relating to juror questioning is proving, in practice, to be unduly restrictive and prejudicial.

The five minutes imposed by the trial court in this case was shorter than the time limits previously upheld by the Court of Appeals.  Moreover, the Defendant was facing four serious Class B felony charges as well as other felonies.  The victim was a celebrity and many of the prospective jurors had heard of him.  The case also raised sensistive questions about self-help, as the victim had pursued his assailants after the robbery was completed.

The question of prejudice was made difficult by the record, which referred to each venireperson only as "prospective juror" and entire groups of prospective jurors were excused sua sponte.  "[H]ere, due to peculiarities in the record, it is impossible to contradict the contention that the problematic prospective jurors that counsel was unable to examine ultimately sat on the jury that convicted him of multiple class B violent felonies." 

The trial judge was Justice Ruth Pickholz.  (LC)