People v. Smith

OPINION OF THE COURT

Sullivan, J.

At issue is whether a juror’s conduct during jury deliberations warrants setting aside the verdict or, at least, remanding for further inquiry.

On the evening of September 19,1978 Detectives Rynne, Pepp, Beyrodt and Police Officer Flanagan were on street crime patrol in an unmarked car in the area of Central Park and 110th Street. All of the officers were in plain clothes. Their assignment included the Central Park area and in particular the Brambles section around 72nd Street, where a series of beatings had recently taken place. At approximately 10:00 p.m. the officers observed three young men, one of whom was carrying a bat or a stick, hurriedly *358exiting the park. The three entered a gypsy cab at 110th Street and 7th Avenue. The officers decided to. follow the cab.

Within moments after they pulled behind the cab, all four officers, for various intervals of time, estimated at a minimum of four or five seconds for Detective Pepp and a maximum of one and one-half minutes for Detective Rynne, observed defendant, who was sitting in the back seat of the cab, brandishing a silver-plated gun in his raised hand. When the light turned red at 109th Street and Fifth Avenue, the officers pulled their car in front of the taxicab. Detectives Rynne and Pepp approached the cab on the driver’s rear side, while Detective Beyrodt and Officer Flanagan approached the passenger’s rear side, where defendant was sitting. When Detective Beyrodt reached the door, he saw defendant holding a gun in his hand between his legs. Beyrodt identified himself and defendant dropped the gun, a fully loaded .32 caliber Clarke revolver, to the floor of the cab. Beyrodt immediately retrieved it. Although operable, the cylinder had to be hand operated to fire the gun.

Defendant did not testify; nor did he call any witnesses in his behalf. In summation defense counsel argued that defendant and his friends had found the malfunctioning gun, which had been “dump[ed]” by someone on the floor of the cab, and that the police officers “put it” on him since he was closest to the gun. In support of this theory defendant challenged the ability of the police officers to see into the cab from their car. The officers’ testimony was in conflict as to the distance between the two vehicles. Moreover, the cab driver never saw the gun. Nor was he threatened with it.

Approximately five hours after receiving the case the jury reported itself deadlocked. After a supplemental charge in which they were asked to harmonize their views the jurors were sent to dinner. They resumed deliberations that evening and eventually were sequestered overnight. The next morning the jury found defendant guilty of the only crime charged, criminal possession of a weapon in the third degree.

After trial, but before sentencing, defendant moved to set the verdict aside on the ground of juror misconduct *359during the deliberations. After rendition of the verdict, one of the jurors, Olen Robinson, had told both the prosecutor and defense counsel that while walking from the courthouse to the restaurant, and again during the bus ride to the hotel, he looked into the rear windows of cars to test the credibility of the police officers. Concluding that they could, indeed, see into the back seat of cars, Mr. Robinson and another juror who had been the only jurors voting for acquittal throughout the first day of deliberations changed their votes to guilty.

The court denied the motion without a hearing, ruling that the juror was “simply drawing upon an everyday situation to verify the testimony of the police officer witnesses.” Contending that he was deprived of his right to an impartial jury and of his right to confrontation by making the juror an unsworn witness against him, defendant has made this ruling the focal point of his appeal. We find that the verdict was not tainted by the juror’s observations, and affirm.

Generally, “jurors may not impeach their own duly rendered verdict by statements or testimony averring their own misconduct within or without the jury room”. (People v De Lucia, 15 NY2d 294, 296; see McDonald v Pless, 238 US 264, 267-268; see, also, People v Sprague, 217 NY 373.) If not for this rule, every verdict would be vulnerable to attack, and jurors subject to continuous posttrial harassment by an unsuccessful party in an effort to uncover facts which might establish misconduct sufficient to invalidate the verdict. Consequently, where a motion for a new trial is based on a juror’s statement concerning his misconduct or that of other members of the jury, “public policy reasons for holding such statements inadmissible must ordinarily override possible injustice to a defendant, for here [the] jury system itself is at stake.” (People v De Lucia, 20 NY2d 275, 279.) But where a jury’s deliberation is affected by “outside influence” (Parker v Gladden, 385 US 363, 364), a juror’s statements are admissible to show that a defendant’s rights were violated, “for here the danger to our jury system is minimal compared with the more easily proven prejudice to the defendant.” (People v De Lucia, 20 NY2d, at p 279.)

*360Thus, a verdict may be overturned on the ground of improper influence where even well-intentioned jury conduct tends to put before the jury evidence not introduced at trial (People v Brown, 48 NY2d 388); or where a jury makes use of information not contained in the record, such as the defendant’s address of which the deadlocked jury learned from a newspaper account of the case (Bulger v McClay, 575 F2d 407); or where jurors had made unauthorized visits to locations described in trial testimony (People v Crimmins, 26 NY2d 319; People v De Lucia, 20 NY2d 275, supra). If, however, the juror’s conduct “was no more than the application of everyday perceptions and common sense to the issues presented in the trial”, such conduct does not taint a subsequent verdict. (Cf. People v Brown, 48 NY2d, at p 393; People v Harris, 84 AD2d 63, 105.)

In our view, Mr. Robinson’s conduct was not improper. All he did was to assess the credibility of the officers on the basis of an everyday experience — peering into a car through its rear window. His observations are in sharp contrast to what occurred in People v Brown (48 NY2d 388, supra), upon which defendant relies. There, a juror conducted a “test” which bore on the credibility of a key prosecution witness, a police officer. The officer had testified that just minutes before the robbery, while sitting in the rear seat of a van, he had observed the defendant driving a vehicle subsequently used as the getaway car. Only the officer’s testimony placed the defendant at the scene of the crime. The defense challenged the accuracy of his identification, partially because the officer’s observation of the driver, at a time when the two vehicles were stopped alongside each other, was made from a General Motors van, which was three feet higher than the car. During the trial one of the jurors tested the range of visibility afforded from the back seat of her own van, a Volkswagen. Before the verdict was reached, she reported to the jury that it was possible to see the face of a driver of an adjacent car from where the officer was sitting. In refusing to classify the test conducted by the juror as an application of everyday experience, the Court of Appeals concluded (p 394) that the juror’s conduct was a “conscious, contrived experimentation” that would have been inadmis*361sible at trial because it was not comparable in “location, lighting, or type of van” (at p 395). Because of the nature of the experimentation, the court pointedly declined to consider what the result might have been if the juror had been placed by pure coincidence in a position to make her observations. (People v Brown, supra, at p 394.) The court also noted (p 394) that “the ‘test’ was directly material to a point at issue in the trial” and “created a substantial risk of prejudice to the rights of the defendant by coloring the views of the other jurors as well as her own.”

In arriving at a verdict jurors are expected to draw upon their common sense and everyday experience. That experience is not static. All individuals, not only jurors engaged in deliberations, are constantly and continually exposed to a myriad of sights and sounds which touch their senses and affect the perspective from which they view the world. While his observations were material to an issue at trial and apparently colored his views, Mr. Robinson did not conduct an extraordinary test, but chose to make a random observation available to him both before and after the trial without the benefit of an especial expertise or a calculated experiment. Such conduct was not improper. He saw what every other juror could have seen, had they chosen to do so. Thus, he did not become an unsworn witness and place before the jury evidence otherwise inadmissible at trial. Unlike in Brown, the juror’s observations were not contrived and the circumstances under which they were made were not dissimilar to the conditions under which the officers viewed defendant.

We have examined defendant’s other contention and find that it is without merit.

Accordingly, the judgment, Supreme Court, New York County (Dennis Edwards, J.), rendered June 13, 1979, convicting defendant of criminal possession of a weapon in the third degree and sentencing him to an indeterminate term of two to four years, should be affirmed.