People v. Nelson

125 A.D.3d 58, 998 N.Y.S.2d 216

Opinions

OPINION OF THE COURT

Miller, J.

The defendant was charged by indictment with the murder of Leo Walton and the attempted murder of Mark Maldonado. At trial, the People presented evidence demonstrating that Maldonado invited the defendant into the apartment that Maldonado and Walton shared, and that once inside, the defendant shot Walton three times in the back of his head, then kicked in Maldonado’s locked bedroom door, and shot him four times. The defendant did not testify at trial, but his statements (including a written statement and an audio- and video-taped statement) were introduced into evidence at trial by the People. In his statements, the defendant said that, inside the apartment, Maldonado fired a gun at him, but that he dove to the floor, and the shots hit Walton. The defendant then retrieved a .38 caliber handgun from his waist, followed Maldonado to Maldonado’s room, and fired four shots. The defendant presented a justification defense at trial, based on the account he gave in his statements to law enforcement officials. The jury, rejecting the defendant’s justification defense, found the defendant guilty of murder in the second degree and assault in the first degree. The defendant now appeals, primarily arguing that he was deprived of his right to a fair trial under the federal and state constitutions because members of Walton’s family were allegedly present in the courtroom wearing T-shirts that bore a photo of Walton and the words, “Remembering,” or “Remember,” and Walton’s name.

Defense counsel first raised this issue to the trial court just prior to the prosecutor’s summation, stating that “three members of the Walton family [were] sitting with shirts saying ‘Leo Walton,’ the deceased’s photo, and it says ‘Remembering Leo Walton’ in clear view of the jury.” The trial court questioned the timing of defense counsel’s application, stating that it had noticed that one female had worn a similar shirt on three previous occasions and that the subject spectators had been present in the courtroom prior to defense counsel’s summation. Defense counsel replied that he did not believe that anyone had worn the shirts “before today.”

The trial court denied defense counsel’s application to have the Walton family removed, or to have them change their T-shirts. The trial court described the subject T-shirts: “the shirts that they are wearing, which appears from my vantage point to be a white tee-shirt with an embossed or screened some kind of rectangle. And I made out it says ‘Remembering Leo Walton.’ ” The court stated that “[t]he family members of the deceased [were] being seated quietly, innocuously in the audience” and they had not “drawn attention to themselves nor [had] they drawn attention to the shirts.” The court concluded that the conduct of the Walton family was not “prejudicial” and did not “impact[ ] the defendant.”

After the jury returned its verdict, but before the defendant was sentenced, the defendant moved to set aside the verdict pursuant to CPL 330.30, arguing, inter alia, that he was entitled to a new trial since there was a danger that the jury had been influenced by the T-shirts worn by Walton’s family. In support of the motion, which was argued and decided at the sentencing proceeding, defense counsel stated that

“the verdict was possibly influenced by improper conduct; namely, that four members of the deceased’s family sat quite close to the jury with tee-shirts with photos of the deceased and wording that said ‘Remember Leo Walton.’And I believe that was an improper effort to elicit sympathy from the jury in deciding the case.”

Defense counsel continued:

“Certainly, it’s a public courtroom; members of the deceased’s family are certainly entitled to appear. But I think when it gets to the point of a full body-length photo of the deceased, and ‘Remember Leo Walton’ at the stage when the jury is hearing summations, charge, and deliberating, that that then leads to the jury making a decision based on sympathy and not on the evidence.”

The prosecutor opposed the motion, stating that “[t]his was grieving family sitting in an open courtroom and listening politely and carefully to the evidence that their loved one was murdered.” The prosecutor stated that the family had been “extraordinarily composed [and] respectful . . . throughout the entire process” and that at no time did anyone act to direct attention to the shirts.

The Supreme Court denied the defendant’s CPL 330.30 motion. The court stated that “it would be appropriate to make a better record of what the shirt was. It was [a] white tee shirt with a silk screen with a picture of the deceased with some written language on it.” The court stated that the shirts “weren’t inflammatory.” The court had “noticed that shirt” previously, but it “couldn’t read what was written on it.” The court stated that the members of the Walton family “sat in the second row of the audience” and that the T-shirts were “not flauntily [sic] displayed in front of the jury, nor . . . did any members of the family bring undue attention to [them].” The court further stated that “most of the members of the family had an outer garment on top of the tee-shirt” so that the jury “wasn’t even capable of seeing the entire thing.” The court noted that “[w]hen counsel made the objection, [it] responded and made a record at that time indicating that [it] saw nothing wrong with those shirts.” The court concluded that the conduct of Walton’s family had “not inflamed” the jury.

A criminal defendant’s right to a trial by an impartial jury is guaranteed by both the federal and state constitutions (see US Const Sixth Amend; NY Const, art I, § 1). “The requirement that a jury’s verdict must be based upon the evidence developed at the trial goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury” (Turner v Louisiana, 379 US 466, 472 [1965] [internal quotation marks omitted]). “[0]ne accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial” (Taylor v Kentucky, 436 US 478, 485 [1978]).

In order to safeguard the constitutional guarantees of impartiality and to ensure that a jury’s verdict is based solely on the evidence formally admitted as proof, courts go to great lengths to screen out prospective jurors that possess characteristics which may impact a juror’s ability to be impartial (see CPL 270.20 [1] Ob]), to prevent jurors from “convers[ing] among themselves or with anyone else upon any subject connected with the trial” (CPL 270.40), to prohibit jurors from “reading] or listening] to any accounts or discussions of the case reported by newspapers or other news media” {id.), to restrict the admission of evidence that may affect the jury’s ability to resolve the case on the evidence alone (see People v Stevens, 76 NY2d 833, 835 [1990]; People v Donohue, 229 AD2d 396, 398 [1996]), and to shield jurors from other “improper influence[s]” (People v Brown, 48 NY2d 388, 393 [1979]).

These safeguards, so scrupulously observed in every criminal proceeding, lose all purpose if the atmosphere in the courtroom itself affects the ability of the jurors to remain impartial. Indeed, a trial free from a “coercive . . . atmosphere” is a “fundamental principle of due process [that] is well established” (Carey v Musladin, 549 US 70, 80 [2006]; see Moore v Dempsey, 261 US 86 [1923]; Frank v Mangum, 237 US 309 [1915]). It has long been recognized in this State that such an atmosphere of coercion may arise through the conduct of spectators: “[i]t is not to be tolerated that men [or women] should go into such a place and manifest their feelings, prejudices or passions, for the purpose of exerting an influence upon those who sit in judgment upon the rights of parties” (Conrad v Williams, 6 Hill 444, 452 [1844]).

However, “[t]he safeguards of juror impartiality . . . are not infallible [and] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote” (Smith v Phillips, 455 US 209, 217 [1982]). “Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen” (id. at 217).

A trial court, which is in the best position to detect and evaluate the danger that spectator conduct may present to the integrity of the trial process, has a constitutional duty to monitor the atmosphere of the courtroom to ensure that the jury is not exposed to spectator conduct that poses a coercive threat to the jury’s ability to remain impartial {see US Const Sixth Amend; NY Const, art I, § 1; accord Carey v Musladin, 549 US 70 [2006]). When such conduct is detected, a court must act immediately to minimize its impact on the jury.

In a close case, the most prudent course is to err on the side of caution rather than test the outermost bounds of constitutionality, since the minor inconvenience imposed upon spectators by limiting the scope of their conduct cannot reasonably be compared to the importance of providing the accused with his or her right to a trial by a jury unencumbered by the threat of coercive influences. The trial court’s failure to adhere to such a course in this case is troubling, as is the indication in the record that it was aware of the subject T-shirts three days before defense counsel raised the issue, but failed to alert counsel or otherwise inquire into the situation. The better course would have been to immediately inform Walton’s family members that their conduct could potentially imperil the legitimacy of the trial, and give them an opportunity to voluntarily acquiesce to defense counsel’s request, thus obviating the need for explicit direction from the trial court.

However, to the extent that the defendant urges us to impose a per se rule that would require reversal whenever a spectator brings a depiction of a deceased victim into a courtroom, we decline to do so (see People v Thompson, 34 AD3d 852, 854 [2006]). We agree that “one could not seriously deny that allowing spectators at a criminal trial to wear . . . the victim’s photo can raise a risk of improper considerations,” since such depictions “are at once an appeal for sympathy for the victim . . . and a call for some response from those who see them” (Carey v Musladin, 549 US at 82-83 [Souter, J., concurring]; cf. People v Stevens, 76 NY2d at 835; People v Donohue, 229 AD2d at 398). We nevertheless conclude that a per se rule is inappropriate. Given the innumerable variations of conduct that may arise in and among court spectators, and the varying degrees of impact such conduct may have on a jury, each particular instance of challenged conduct calls for a sui generis determination of its potential effect on the jury, made in light of the particular circumstances of the case (see People v Thompson, 34 AD3d at 854; accord Carey v Musladin, 549 US at 83 [Souter, J., concurring]; Johnson v Commonwealth, 259 Va 654, 676, 529 SE2d 769, 781-782 [2000]; Cooper v Commonwealth, 2004 WL 1876416, 2004 Va App LEXIS 403 [2004]; Nguyen v State, 977 SW2d 450, 457 [Tex App 1998], affd 1 SW3d 694 [Tex Crim App 1999]; State v Braxton, 344 NC 702, 477 SE2d 172 [1996]; Cagle v State, 68 Ark App 248, 6 SW3d 801 [1999]; State v Bradford, 254 Kan 133, 864 P2d 680 [1993]; Kenyon v State, 58 Ark App 24, 946 SW2d 705 [1997]).

Accordingly, whether any particular conduct, or a court’s response to it, has violated a defendant’s right to an impartial jury, depends on the particular circumstances of each case (compare Moore v Dempsey, 261 US 86 [1923], with Carey v Musladin, 549 US 70 [2006]). Such circumstances may include the nature of the crime and the evidence adduced at trial, the nature of the spectator conduct, and the degree to which the jury was exposed to such conduct. It is not necessary for an actual prejudicial effect on the jury to be established (cf. Holbrook v Flynn, 475 US 560, 570 [1986]). Ultimately, “the question is whether the [spectator conduct] presents an unacceptable risk ... of impermissible factors coming into play in the jury’s consideration of the case” (Carey v Musladin, 549 US at 82 [Souter, J., concurring] [internal quotation marks omitted]; cf. Holbrook v Flynn, 475 US at 570).

Here, the Supreme Court concluded that the conduct of the Walton family in wearing the subject T-shirts did not pose a threat to the ability of the jury to remain impartial and to decide the case on the evidence alone. The court’s determination was based upon, inter alia, its conclusion that the T-shirts were not themselves inflammatory and that Walton’s family members did not conduct themselves in a manner that would draw the jury’s attention to the T-shirts. The court further determined that the jury was not even capable of seeing the T-shirts in their entirety, since the individuals were sitting in the second row and were wearing other garments over them. The court’s conclusion that the T-shirts were not prominently displayed is also reflected by the fact that defense counsel did not raise an objection to the T-shirts until he noticed them. To the extent that the defendant takes issue with the court’s descriptions of the exact nature of the T-shirts, their visibility to the jury, and the length of time that the jury was exposed to them, he failed to create a record that would provide a basis for this Court to overturn those factual findings. Upon this record, we are unable to conclude that the Supreme Court’s determination, that the spectator conduct did not threaten the ability of the jury to remain impartial, was error (see People v Thompson, 34 AD3d at 854; accord Carey v Musladin, 549 US 70 [2006]).

Turning to the remaining issues raised on appeal, we find the defendant’s contention that he was deprived of his right to the effective assistance of counsel under the federal or state constitution to be without merit (see Strickland v Washington, 466 US 668 [1984]; People v Baldi, 54 NY2d 137 [1981]).

The defendant additionally contends that he was deprived of a fair trial due to the cumulative impact of certain improper comments the prosecutor made on summation. However, the defendant’s contention is unpreserved for appellate review (see CPL 470.05 [2]), because he failed to object to the comments he now challenges (see People v Romero, 7 NY3d 911, 912 [2006]), or failed to request additional relief when the Supreme Court sustained objections or provided curative instructions (see People v Heide, 84 NY2d 943, 944 [1994]; People v Bajana, 82 AD3d 1111, 1112 [2011]; People v Damon, 78 AD3d 860 [2010]; People v Hollenquest, 48 AD3d 592, 593 [2008]), and we decline to review it in the exercise of our interest of justice jurisdiction (see CPL 470.15 [3] [c]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

Accordingly, the judgment is affirmed.