In People v. Ochoa (Ct. App. 2/16/2010) (PIgott, J.) (4-3) and People v. Figueroa (Ct. App. 2/16/2010) (Pigott, J.) (4-3), the defendants were tried jointly for a robbery. The People alleged that the defendants forcibly stole a video game console from the complainant while the three of them and a fourth person were smoking crack-cocaine. There were two issues on appeal: (1) whether the People improperly rehabilitated two impeached witnesses (the complainant and the fourth individual); and (2) whether Supreme Court properly responded to a note from the jury foreperson.
With respect to the witness rehabilitation issue, the complainant admitted that his testimony before the Grand Jury was inconsistent on several key points. He explained that he was "confused" by the questions before the Grand Jury. The prosecutor was allowed to ask the witness whether he was "confused" by other questions that concerned other aspects of the crime. The other witness admitted to inconsistencies between her written statement to the police and her trial testimony. The prosecutor was permitted to clarify whether the other information in the statement was correct.
The court found that both inquiries on redirect examination were proper because they explained or clarified the inconsistencies that were elicited on cross-examination. The dissent responded, "This was not a case of clarifying or explaining a statement only partially examined by opposing counsel. This was an attempt to recast the entire testimony of two witnesses who had given many versions of the crime and surrounding events."
On balance, I think the majority got this issue right, although the case illustrates that one party's "clarification" is another's "bolstering." A party attempting to rehabilitate a witness should avoid presenting the questions as a prior consistent statement (i.e., there were plenty of other more important statements that were not inconsistent and therefore the witness testified truthfully) but instead as clarification as to which of the prior statements were incorrect.
Regarding the second issue, after several days of deliberation, readbacks, and deadlocks, the jury announced it had reached a verdict. The jury foreperson also sent a note to the judge stating that he had concerns about reading the verdict. The court conducted an ex parte interview of the juror, during which the court explained how the verdict would be taken and the limited role the foreperson would play. The juror "seemed relieved and said, 'Oh, okay, fine.'" After the meeting, the court informed the parties of what had transpired; neither objected to the procedure. The verdict was taken and the foreperson agreed that the verdict was his.
The Court of Appeals noted that it would have been a better practice for the trial court to have followed the procedures in CPL § 310.30: provide notice of the note and an opportunity to be heard to the parties before it conducted its inquiry of the juror. Nevertheless, the court found that the trial court did not abuse its discretion because the note was ambiguous and the subsequent conversation indicated that the juror was only as to the manner in which the verdict would be read. Therefore, the inquiry was ministerial. Since the parties could not have "provided a meaningful contribution" to the inquiry, their input was not required.
The dissent, however, contended that the majority erred in considering the events after-the-fact (the substance of the conversation and the juror's response to the post-verdict polling) as evidence that the inquiry was ministerial.
On this issue, I think the dissent has the better argument. The only on-point case cited by the majority was People v. Hameed, 88 N.Y.2d 232 (1996). But in that case the trial judge knew the inquiry would be ministerial because the juror's initial inquiry indicated that she wanted to know if she could attend church during sequestration. Here, on the other hand, the juror's note was, to use the majority's description, "ambiguous." This is precisely why the notice-and-be-heard provisions are so important. What if the juror had said, "Well, I'm not comfortable reading the verdict because I was bullied into agreeing to it ..."? I suppose the court could have told the juror to wait outside while he or she consulted with the parties, but by then the damage may have been irreparable. The defense would have lost the opportunity to observe the initial questioning and the juror's reactions. (LC)
With respect to the witness rehabilitation issue, the complainant admitted that his testimony before the Grand Jury was inconsistent on several key points. He explained that he was "confused" by the questions before the Grand Jury. The prosecutor was allowed to ask the witness whether he was "confused" by other questions that concerned other aspects of the crime. The other witness admitted to inconsistencies between her written statement to the police and her trial testimony. The prosecutor was permitted to clarify whether the other information in the statement was correct.
The court found that both inquiries on redirect examination were proper because they explained or clarified the inconsistencies that were elicited on cross-examination. The dissent responded, "This was not a case of clarifying or explaining a statement only partially examined by opposing counsel. This was an attempt to recast the entire testimony of two witnesses who had given many versions of the crime and surrounding events."
On balance, I think the majority got this issue right, although the case illustrates that one party's "clarification" is another's "bolstering." A party attempting to rehabilitate a witness should avoid presenting the questions as a prior consistent statement (i.e., there were plenty of other more important statements that were not inconsistent and therefore the witness testified truthfully) but instead as clarification as to which of the prior statements were incorrect.
Regarding the second issue, after several days of deliberation, readbacks, and deadlocks, the jury announced it had reached a verdict. The jury foreperson also sent a note to the judge stating that he had concerns about reading the verdict. The court conducted an ex parte interview of the juror, during which the court explained how the verdict would be taken and the limited role the foreperson would play. The juror "seemed relieved and said, 'Oh, okay, fine.'" After the meeting, the court informed the parties of what had transpired; neither objected to the procedure. The verdict was taken and the foreperson agreed that the verdict was his.
The Court of Appeals noted that it would have been a better practice for the trial court to have followed the procedures in CPL § 310.30: provide notice of the note and an opportunity to be heard to the parties before it conducted its inquiry of the juror. Nevertheless, the court found that the trial court did not abuse its discretion because the note was ambiguous and the subsequent conversation indicated that the juror was only as to the manner in which the verdict would be read. Therefore, the inquiry was ministerial. Since the parties could not have "provided a meaningful contribution" to the inquiry, their input was not required.
The dissent, however, contended that the majority erred in considering the events after-the-fact (the substance of the conversation and the juror's response to the post-verdict polling) as evidence that the inquiry was ministerial.
On this issue, I think the dissent has the better argument. The only on-point case cited by the majority was People v. Hameed, 88 N.Y.2d 232 (1996). But in that case the trial judge knew the inquiry would be ministerial because the juror's initial inquiry indicated that she wanted to know if she could attend church during sequestration. Here, on the other hand, the juror's note was, to use the majority's description, "ambiguous." This is precisely why the notice-and-be-heard provisions are so important. What if the juror had said, "Well, I'm not comfortable reading the verdict because I was bullied into agreeing to it ..."? I suppose the court could have told the juror to wait outside while he or she consulted with the parties, but by then the damage may have been irreparable. The defense would have lost the opportunity to observe the initial questioning and the juror's reactions. (LC)
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