10 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNTY COURT OF THE STATE OF NEW YORK COUNTY OF MONROE CRIMINAL TERM Ind. No. 2015-12518 THE PEOPLE OF THE STATE OF NEW YORK, ‘ -against- : Murder Assault JALEN J. EVERETT, Defendant . : Decision/Order x Hall of Justice Civic Center Plaza Rochester, New York 14614 December 6, 2016 Befor HONORABLE DOUGLAS A. RANDALL County Court Judse Appearances: SANDRA DOORLEY, 2SQ. District Attorney, Monroe County by: PERRY M. DUCKLES, ESQ. Assistant District Attorney DANIEL A. GROSS, ESQ. Assistant District Attorney TREVETT CRISTO SALZER & ANDOLINA P.C, Attorneys for Defendant 2 State Street Rochester, New York 14614 CLARK J. ZIMMERMANN, JR., ESQ. EMILY FUSCO, ESQ. PATRICIA N. STUVER, CSR Official Senior Court Reporter10 a 12 13 “4 15 16 17 18 19 20 21 22 23 24 25 2 (The proceedings convened; Counsel present; Defendant present.) THE COURT: All right. Good morning. This is the matter of The People of the State of New York versus Jalen Everett. Mr. Bverett is present with his attorneys, Mr. Zimmermann and Ms. Fusco. The People are represented by Mr. Duckles. Mr. Gross, good morning. Counsel, the matter is on for a decision with respect to a 330.30 motion that has been brought by the Defense. The Court is going to provide an oral decision this morning that will constitute the findings of fact and the decision that the Court will make at this stage. The Defense has brought a motion pursuant to Criminal Procedure Law Articles 330.30(1) and (2). CPL Section 330.30(1) provides that after rendition of a verdict of guilty and before a sentence is imposed, the Court may, upon the motion of the defendant, set aside or modify the verdict or any part thereof upon, Number 1, any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of10 aa 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 law by an Appellate Court. CPL Section 330.30(2) provides that after the rendition of a verdict of guilty and before a sentence is imposed, the Court may, upon the defendant's motion, set aside the verdict or modify the verdict or any part thereof, Number 2, if during the trial there occurred, out of the presence of the Court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict. The Court at this stage is asked to determine the motion. Before I determine any motion under 330.30, the Court must decide whether it can summarily grant the motion or deny the motion, or does the motion require a hearing; and then ultimately after resolving that issue, should this jury verdict be set aside due to either, under Subdivision 1, what would be in this case argued by the Defense as legal insufficiency of the evidence; or, under Subdivision 2, improper conduct by a juror. With respect to the Defense motion under 330.30(1), legally sufficient evidence is defined as competent evidence which, if accepted as true, would10 1 12 13 14 15 16 17 18 19 20 21 22 23 25 4 establish every element of an offense charged and the defendant's commission thereof. That is from CPL 70.10(1). Legal sufficiency in this case -- in this case, in the context of legal sufficiency, the Court is asked to view the evidence in the light most favorable to the People. Hssentially, whether the Court would find a reasonable jury hearing the evidence and inferring the facts most favorable to the People could find that all of the elements of the crime have been satisfied, and that the Defendant was at least in this case one of the people involved in the commission of the crime. The Court has previously applied essentially the same standard, similar standard, in viewing the evidence at the end of the People's case and at the end of the Defense case with respect to a trial order of dismissal motion. The Court at that time and at this point finds that the People have established a legally sufficient case under the standard of 330.30(1) under the context that it is legally insufficient or against the weight of the evidence, and therefore the Court will deny summarily Defense Counsel's motion with respect to that aspect of the order to show cause and that motion that has been brought before the Court. With respect to 330,30(2), generally a jury's10 an 12 13 14 15 1s aw 18 19 20 21 22 23 24 25 5 verdict may not be impeached by probes into the jury's deliberative process; however, a showing of improper influence provides a necessary and narrow exception to that general proposition. That is citing People v. Maragh, a Court of Appeals case from 2000, at 94 Ny2d 569. The rule with respect to this type of motion is that in each case the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered. That is citing People v. Brown at 48 Ny2d 388 at 394, Improper influence includes even well-intentioned jury conduct which tends to put the jury in possession of evidence not introduced at trial. Again, citing Brown at Page 393. Brown cites United States v. Beach at 296 F2d 153. In Beach the Court held that improper influence, of course, embraces not merely corrupt attempts to affect the jury process, but even well-intentioned jury conduct which tends to put the jury in possession of evidence not introduced at trial. New York Courts have consistently found that each instance of juror misconduct must be analyzed with respect to its particular facts. The Court cites People v. Irizarry at 83 NY2d 557 at 561.10 1a 12 13 14 15 16 18 19 20 21 22 23 24 25 6 The Courts have held that the Trial Court is invested with discretion and post-trial fact-finding powers to ascertain and determine whether the activity during the deliberations constituted misconduct and whether the verdict should be set aside and a new trial ordered. That is citing Maragh again and referring to People v. Testa at 61 NY¥2d 1008, 1984 case. So the issues the Court needs to look at are whether the material introduced to the jury constituted misconduct, whether the information was material to a point at issue in the trial or the defendant's rights at the trial, and could the juror's statements have created a substantial risk of prejudice to the rights of the defendant by coloring the views of the other jurors or by finding that that juror's views itself were colored. That is citing People v. Brown. ‘The Court has reviewed a number of cases with respect to these issues. Among them is People v. Marsden at 88 AD3d 909, which is a Second Department case from 2011. In that case, a juror claimed that after a verdict -- a juror claimed that other jurors during deliberations exerted verbal pressure upon her to render a verdict of guilty. The Court in that case found that that information, those facts went to the tenor of the deliberations and did not constitute a10 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 basis to set aside the verdict; but the Court went onto hold that the juror in that case, who was identified as Juror Number 8, also indicated that two jurors discussed outside information that they learned from the newspaper and on-line searches regarding the information at trial and ite participants, and that also one of the jurors had conferred with a priest during the course of the trial. The Trial Court in Marsden initially summarily denied the 330.30(2) motion. The Appellate Division reversed, not on the verbal pressure with respect to rendering a verdict, but, however, Juror Number 8's sworn allegations of outside influence prior to and during the deliberations and in that case warranted a hearing. The hearing was to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered. So in that case the Court reversed and xemanded to the Trial Court for a hearing with respect to those issues. The Court notes that in Marsden the hearing was required because the initial basis of the information was only an affidavit provided by the defense of Juror 8. Also, the Appellate Division reversed because the, as I said, initial Trial court decision was to summarily deny the 330.30(2) motion without further examination of the facts.10 a 12 13 14 1s 16 17 18 19 20 21 22 23 24 25 8 With respect to Mr. Everett's case, the Court will make the following findings of fact with respect to this motion, this order to show cause: First, in the nature of a timeline, the Court notes that juxy selection in Mr. Everett's case began on October 17th of 2016. That jury selection process continued to October 21st, when opening statements were given to the then sworn jury. Evidence was presented to the jury between October 21st and October 31st, 2016. Summations were provided to the jury on November 2nd, 2016. Final instructions were delivered and deliberations of the jury began on November 3rd, 2016. Ultimately a verdict was rendered on November 4th, 2016. The Court notes, based on a review of my trial notes, that admonitions with respect to rules setting forth guidelines for conduct of jurors were provided to each and every juror initially with respect to the first panels that were sworn, each of the panels that were sworn, as well as each and every day with respect to the conduct of the trial, so that was every day trial was in session from October 17th, 2016 through November 3rd, 2016. The Court further notes, as set forth in the prior record that has been established and attached to10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 the order to show cause, that on November 5th, 2016, the day after the jury rendered a verdict, this was a Saturday, a voicemail message was left on the Court's chambers recorder from one of the jurors. It turned out to be Juror Number 10, who we identify as E.M. on November 7th, when the Court returned to its office in the morning, the Court was provided with information regarding the message from E.M., and based on that, the court did on that same morning make a phone call to E.M. to try to determine the nature of the inquiry that she was making. The Court immediately directed that the attorneys be notified and arranged a meeting for that same day, November 7, 2016, where the Court has made a record by having a stenographer present in chambers with the attorneys indicating the Court's conduct and what discussion was had with the juror and that information, and that the juror would be contacted potentially to come in to answer further questions The Court scheduled that hearing for November loth, that fact-finding essentially for November 10, 2016, and that was conducted, and that was on the record. On November 22nd, 2016, the Defense filed the order to show cause and a sealing order directing that the papers not be made public. The People responded on December Sth, 2016 with respect to the order to show10 a 12 14 15 1é a7 18 19 20 21 22 23 24 25 10 cause, The Court scheduled argument of motions with respect to the Defense order to show cause on December 6th, two days ago, and having heard those arguments, reserved decision until this morning. With respect to the timeline, further, the Court notes that on November loth, 2016, during a fact-finding hearing, the Court took sworn testimony, testimony under oath, of Juror Number 10, E.M. The juror was subject to examination by attorneys for both of the parties and by the Court. Counsel were given prior notice of the hearing and information regarding the nature of the testimony that would be involved. During the course of the hearing, nor subsequently, has there been any challenge to the credibility of Juror Number 10, B.M. There certainly were no questions during the examination by either of the parties, nothing submitted in any of the papers submitted by either of the parties. There does not appear, by the Court's view of the witness during the course of that fact-finding, to be any issue with respect to B.M.'s ability to recall or account the events to which she was asked, nor does she appear to have any motive to lie. The Court, for the record, credits the testimony of Juror Number 10, E.M. I find her demeanor to have been open, forthricht and10 a1 12 14 15 16 17 1g 1g 20 a1 22 23 24 25 a honest. With respect to the testimony of B.M., the Court makes the following findings of fact: That there was various material placed before the jury prior to the report of the verdict on November 4th. This information included, well, what I will refer to as: A. That during jury selection, while the alternates were being selected, Juror Number 3, J.R., provided information to the other sworn jurors at that time that someone had already been convicted in this case. ‘That during the trial, there was a discussion amongst the jurors, after repeated, and the Court stressed a number of the admonitions, there was a discussion amongst the jurors as to "who squealed" relating to there may have been information provided to the Court about discussions going on by the jurors. €. During the trial, J.R., Juror 3, indicated to the other jurors, something to the effect of: Did you see the Defendant's brother give the bailiff the finger through the window and swearing? D. During the trial, J.R. tells the other jurors that the other jury deliberated for seven hours over two days.10 ql 12 13 14 15 1s 17 18 19 20 aL 22 23 24 25 12 E. During the deliberations, one juror asked another juror about why the Defendant was even arrested. Juror Number 3, J.R., essentially indicates to the jury panel during deliberations: Do you want to know why they arrested Jalen Everett, at which point the other jurors instructed J.R. that he is not to mention anything about that to them, but that Juror Number 3, J.R., indicates that he will tell them after the verdict. F. During the trial, during a break in testimony while evidence admissibility is argued, Juror 3, J.R., said that there has been a ton of evidence, that there has to have been a ton of evidence relating to Mr. Everett or we wouldn't be here and -- we wouldn't be here if they didn't have a ton of evidence on this guy. G. That after the verdict was decided by the -- or agreed upon by the jury, but before the verdict was reported, Juror Number 3, J.R., tells the other jurors that Johnny Blackshell is in jail, and that Johnny told the police that the Defendant, Jalen Everett, and Mikey Mathis were in the car with him, relating to why they went ahead and arrested Mr. Everett. H. Juror Number 3, J.R., tells the jury10 11 12 13 14 1s 16 a7 18 19 20 21 22 23 24 25 13 during the testimony, during a break in the testimony during the trial, as part -- or while Officer McClellan's testimony had been suspended as a result of reference to material that was precluded by the Court, Juror Number 3 tells the vest of the jury: That's the guy who arrested the Defendant at the Buffalo airport because he was trying to get away. This was stated in front of all of the other sworn jurors in the jury room outside of the presence of the courtroom. Further, Juror Number 3 is attributed to have said: The Defendant was trying to get away because Jalen knew he was going to be arrested and was trying to flee. I. Juror Number 3 tells Juror Number 10, again during the trial, during deliberations: It's impossible not to hear media reports about this trial, and its impossible not to consider what you heard being objected to because it's already in your mind. J. During the course of the presentation of the evidence, jurors talked about the case during the testimony. In Juror 10's word : At some point the "flood gates just opened," and this was before deliberations were ordered to begin. K. That Suror Number 3 at various times tried to make the Defendant seem frightening. L. duxror Number 3 at the very beginning of10 a 12 13 14 1s 16 aq 18 19 20 21 22 23 24 25 14 deliberations stated: I know what these people are like and they all want to kill people or something. The Court credits the testimony of B.M. with respect to each and every one of those pieces of information. The Court, having heard the evidence, having heard the testimony of E.M., having credited that testimony, makes the following conclusions of law: Again, the Court is asked to determine under 330.30(2) in essence the likelihood that prejudice would be engendered by the information that was provided by Juror Number 3. ‘The Court notes that even E.M., Juror Number 10, indicated that the jurors were aware that they should not be exposed to this information; that they repeatedly told Juror Number 3 not to give them the information or not to make these statements, not to present the information during the trial and during the deliberation process. B.M. felt awful for not reporting it right away, and indicated that she thought about telling the deputy about it with respect to at least one point during the course of the proceedings. Also, that the jury as a group responded to Juror Number 3, J.R., with respect to the racial conments during the deliberations, such that on the second day10 a 12 13 14 15 16 17 18 19 20 2a 22 23 24 25 15 of deliberations, the jury made a statement to J.R that they couldn't bring -- it wasn't right for him to bring that information before the jury. The Court notes that the People have requested in answering the order to show cause a hearing with respect to this matter. During the argument of motions, the People made it clear that they felt it would be the Defense burden, but that Juror Number 3, J.R., should be called. They were not asking to call J.R. themselves, nor were they asking to call any of the other jurors. The Court indicated during argument of motions and asked for input as to whether J.R., Juror Number 3, would have a constitutional right to an attorney, would have a Fifth Amendment right to remain silent with respect to being questioned concerning these matters, and the Court looked at potential criminal charges that might be brought against J.R., Juror Number 3, with respect to tampering with a juror in the first degree or even just criminal contempt in the second degree. Ultimately that is not an issue for the Court to decide. The Court would not be involved in any determination with respect to that. The People did not indicate at any point that they would agree to give Juror 3 immunity with respect to any of those crimes or anything else. There was no10 1 12 13 14 15 16 17 18 19 20 an 22 23 24 25 16 discussion of that. The Court then discussed with the attorneys the possible ramifications of Juror 3 being called in to testify. That he would either refuse to testify, that he would admit or deny or indicate that he couldn't recall. Ultimately the Court is left with the credible testimony of Juror E.M., and the question is whether the Defendant has satisfied its burden of proof that Mr. Everett's jury was subject to improper influences which were not well-intentioned jury conduct but prejudicial and egregious conduct by a juror, which resulted, among a number of other things, with the jury being in possession of information and evidence not introduced in trial. In fact, in this case the evidence that was specifically precluded from the trial. Taken in conjunction with the other behaviors and statements outlined above in my findings of fact, the Couxt finds that it was Juror 3's, J.R.'s, likely intention to improperly influence the other jurors, and the nature of the information that he provided was so highly prejudicial that it likely affected a substantial right of Mr. Everett, in particular his right to an impartial jury and a fair trial.10 a 12 13 14 15 16 17 18 1g 20 21 22 23 24 25 17 Clearly, none of this information was known to the Defense prior to the rendering of the verdict. specifically, the Court finds that J.R.‘s, Juror 3's, reference to the Defendant being arrested at the Buffalo airport, that he was trying to flee, the statements of -- well, first, the statements with respect to the Buffalo airport, the Defendant trying to flee, the statements were so prejudicial that it was likely to affect the substantial rights of Mr. Everett with respect to his right to a fair trial. The statements attributed to Johnny Blackshell, even though allegedly made after the jury had agreed upon a verdict, were given before the verdict was reported, and the information that Johnny Blackshell in some way confirmed that the Defendant was in the car was provided before the jury reported its verdict and before the jury was polled, and the Court can't say that this in some manner didn't affect the possibility that a juror, upon being polled, would have answered the question differently whether that was in all respects their verdict. With respect to the racial bias of Juror 3, the volatile statements that were attributed to him during the beginning of deliberations, the Court has xeviewed People v. Rivera at 34 AD2d 841, a Second10 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 Department case from 2003, wherein a juror announced before deliberations that he knew that, using the *N* word, that the defendant is guilty. The Court, the Appellate Division, reversed the Trial Court which said that it did not require setting aside the verdict. the Appellate Division reverses and sets aside the verdict finding that the juror had a preexisting opinion, a racial bias, and that's almost exactly the statement that is attributed to J.R., Juror Number 3, in this case. Further, the premature discussion of the facts of the case by jurors and disregard for the Court's rules and admonitions is another factor that the Court has to consider. ‘The People have argued, in opposition to summarily granting the motion to set aside the verdict, what the Court considers an incorrect legal standard. The question is not whether the Defense can prove the improper conduct caused a different verdict. The only requirement is that it likely colored the views of the jury, and the Court makes that determination based on the law from the case law that I have cited. Now, the Court wants to be very clear that neither side contributed to this issue. Both the People and the Defense spent uncounted resources, man10 a 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 19 and woman hours, preparing and going forward with what was a very complex case. The case was completely circumstantial. The case -- that doesn't make the case any better or worse. It is just a fact that this was a completely circumstantial case. The Court does note that there hasn't been, but I guess there could be, an argument that perhaps this conduct by this juror was harmless error in some way. The Court has reviewed People v. Crimming at 36 N¥2d 230 with respect to a harmless error analysis standard, but the Court finds that the case against Mr. Everett did not comprise of overwhelming proof. In fact, a different verdict, one more favorable to the Defense, would certainly not have been unreasonable in this case, and, therefore, a harmless error analysis would not apply. Finally, the type of, the type of juror conduct that occurred in this case really is among the most egregious type imaginable. It was apparently designed to circumvent all of the procedures put in place by the Court to assure that Mr. Everett received a fair trial. Many of the statements made by Juror 3, J.R would be by themselves a sufficient basis to set aside this verdict. The cumulative effect of the statements10 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 leaves the Court with no choice but to find this juror's improper conduct clearly created a substantial risk of prejudice to the rights of the Defendant by coloring the views of the other jurors. The testimony of Juror 10, E.M., shows that Juror 3, J.R., did not follow the instructions of thie Court and possessed a racial prejudice that would have subjected him to removal as grossly unqualified as a sworn juror. Therefore, based on all of the above, and in applying the standard set out in the statute and the cases the Court has cited, the Court feels compelled that it must grant Defense Counsel's motion pursuant to CPL Section 330.30(2) and therefore sets aside the jury's verdict in all respects in connection to Indictment 1251 of 2015. This would constitute a decision and order of the Court. (Certified to be a true and accurate transcript.) tatriue NW. Puabee Patricia N. stuver Certified Shorthand Reporter