The opinion of the court was delivered by: DENNY CHIN, District Judge
Pro se petitioners Jose Llaca, Daniel Gonzalez, and
Lindwood Collins bring petitions for writs of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioners were convicted in 1995, after a jury
trial, in the Supreme Court of the State of New York, New York County, of
crimes stemming from their participation in a large narcotics organization. Petitioners
challenge their convictions on a variety of grounds. The Court has
reviewed the submissions of the parties as well as the record of the
proceedings in the state court. For the reasons discussed herein, the
petitions are denied.
The following is a brief summary of the facts adduced at petitioners'
Petitioners were high-ranking members of a large drug-selling
organization founded by brothers Nelson and Lenin Sepulveda (the
"organization"). (Trial Tr. at 13574-75, 13581-82, 13588, 13592,
13608-09, 13675, 13667, 13705, 13892). From 1986 until 1993, the
organization sold crack cocaine in the Mott Haven area of the Bronx and
the Brighton Beach area of Brooklyn. (Id. at 957, 1542, 1545,
12266-67, 12309, 13574-75, 13581-82, 13667, 13705, 13892). In certain
locations, the drugs sold were packaged in containers with red tops (or
caps); in other locations the drugs were packaged with orange tops.
(Id. at 957-58, 1455, 1475-76, 1597, 1718-19, 1724, 1772,
Llaca was, inter alia, one of the bosses of two of the drug
selling spots in Mott Haven (Id. at 8823, 8992-94, 8995, 9047-48); Gonzalez worked as a "pitcher," or hand-to-hand seller,
and a shift manager at all four of the organization's Mott Haven drug
spots (Id. at 4147-48, 5603, 6930, 6932, 8885-86, 8997, 9822,
13595); and Collins began as a lookout for the drug sellers at one of the
Bronx locations, and later became a manager at two of the Mott Haven
spots. (Id. at 4168, 5602-03, 5608, 6291, 6360, 6366, 6369-70,
Petitioners committed several murders in furtherance of the drug
conspiracy for which they were ultimately convicted. On September 3,
1989, Llaca and two other members of the operation ambushed and shot to
death a rival heroin dealer and one of his companions. (Id. at
5589-91, 6405, 6412-13, 7917-18, 7920, 8387-88, 8389, 8392-96, 8399,
8425, 9886-87, 9889-90, 9895, 9898, 12973, 12978). On December 16, 1991,
Gonzalez and several other members of the conspiracy ambushed a competing
crack spot and killed four people. (Id. at 4201-02, 4204,
4237-38, 4987-90, 4995-96, 4998, 5734-36, 5738-39). Also, on June 20,
1993, Llaca shot and killed the leader of a rival drug-selling
organization. (Id. at 1613, 15229-30, 15460-61, 15463-64,
On November 3, 1993, petitioners and thirty-eight co-defendants were
charged in one indictment with conspiracy and related crimes for their
involvement in the organization. (Resp't Opp. to Llaca and Gonzalez Pets., App. Vol. I, Ex. A). The
indictment charged that the forty-one defendants committed numerous
crimes in furtherance of the operations of the organization.
(Id.). Thirty-two of the defendants pled guilty prior to trial.
Petitioners and six co-defendants proceeded jointly to trial in September
1994. On May 15, 1995, following a seven-month trial, the jury convicted
petitioners of the crimes detailed below.
Prior to trial, Collins moved to sever his case from those of his
co-defendants arguing, inter alia, that courts have found
severance appropriate for trials involving more than ten defendants, and
that his defense was antagonistic to that of his co-defendants because he
would argue that "if any one was involved, it was one or another" of the
co-defendants. (2/1/94 Mot.). The trial court (Leslie Crocker Snyder, J.)
denied Collins's motion, stating that the trial would likely involve nine
defendants, not forty-one, and that all nine were of similar importance
within the conspiracy. The court also noted that Collins had failed to
make a sufficient showing of antagonistic defenses. (7/19/94 Order).
Thereafter, throughout the course of the trial, petitioner made or joined
in a number of oral renewals of severance motions, all of which were
denied. (Trial Tr. at 1488, 1500-04, 1518G, 3690-91, 3706, 7948-49,
9212-13, 9347-53, 9600-07, 17874-77, 18615-16, 19491-94). b. Co-Conspirator Statements
Also prior to trial, the court held a hearing pursuant to People
v. Evangelista, 88 A.D.2d 804, 450 N.Y.S.2d 817 (1st Dep't 1982), to
determine the admissibility of Llaca's co-conspirators' statements.*fn3
(See 10/6/94 Proceedings; 10/11/94 Proceedings). At the hearing, the
prosecutor described the evidence relevant to Llaca's participation in
the conspiracy. (10/6/94 Proceedings at 1750-64, 1772-73; 10/11/94
Proceedings at 9-28). Llaca argued that the statements should not be
admitted into evidence because the evidence was insufficient to establish
his participation in the conspiracy. (10/6/94 Proceedings at 1772-75).
The prosecution responded, inter alia, that it would offer
testimony at trial from individuals who had worked for Llaca that he was
one of the bosses at the 138th and 141st Street spots. (Id. at
1772-73). Additionally, the prosecution noted that Llaca and one of his
co-conspirators had committed a double murder on September 3, 1989.
(10/11/94 Proceedings at 24).
At the close of the hearing, the court ruled that the State had
presented "ample evidence" in support of a prima facie case of
conspiracy, "without resort to the statements [the State] seek[s] to
introduce," and therefore, the State would be permitted to introduce the co-conspirators' statements in
furtherance of the conspiracy. (Id. at 28-30).
a. Statements by the Trial Judge
During voir dire, counsel for Stanley Tukes, one of
petitioners' co-defendants, likened the prosecution's case to a collage
and argued that the prosecution was "going to put together little
pictures and tell you that this forms one big picture but we are not
going to have a physical picture to see. It's going to an idea that they
are perpetrating." Tukes's attorney asked the prospective jurors to
"understand that that's all it is[,] an idea[,] and that it's not
necessarily a physical reality." (Id. at 123).
In response to a prosecution objection, the judge stated that she was
"tired of the concept and the idea of brain washing jury selection as
opposed to getting information." (Id. at 124). Tukes's attorney
then denied that he was trying to brainwash anybody, and the judge
responded that she would take his word "at face value." (Id.).
During the first round of jury selection, held on October 4, 6, and 11,
1994, the prosecutor exercised peremptory challenges against thirteen of
the forty-four prospective jurors, (Id. at 205-20). In the
second round, held on October 13, 1994, the prosecutor exercised a
peremptory challenge against another juror. (10/13/94 Proceedings at 549-50). Tukes's counsel then made
a Batson application, arguing that the prosecutor had used
thirteen of his fourteen peremptory challenges to strike black jurors,
and that the prosecutor had struck only one white juror. (Id.).
The other defendants, including petitioners, later joined in that
In response, the trial court observed that "almost every prospective
juror was either black or Hispanic," and that there was an "incredibly
small" number of "Caucasians." (Id. at 550). Additionally, the
prosecutor noted that seven of the thirteen seated jurors (twelve jurors
and one alternate) were black. (Id.). The court concluded that
(1) the defense had not shown a prima facie case of discrimination, and
(2) the Batson challenge should have been made prior to the
dismissal of the first jury panel "so that the Court could have acted
appropriately at the appropriate time." (Id.).
Nonetheless, the court then asked the prosecutor to explain the reasons
for his peremptory challenges to "make a record." (Id.). The
prosecutor did so, stating that he excused venireperson eight because she
was a Jehovah's Witness and every Jehovah's Witness he had questioned in
his ten years of experience had stated that Jehovah's Witnesses could not
"sit in judgment." (Id. at 552).
The prosecutor believed that venireperson twelve did not seem to be
taking the proceedings seriously, that she "relied an awful lot on
horoscopes," and that she had read the Enquirer whenever the parties were not questioning her. (Id. at
553). Consequently, he did not think that she would be an appropriate
juror for a case of this "complexity." (Id. at 559-60).
The prosecutor stated that venireperson seventeen was "too young" and
would be unable to "evaluate evidence" and "make a decision" in a
"serious" case like this because she was only twenty-one years old and
unemployed. (Id. at 554).
The prosecutor noted that venireperson thirty-four was employed by the
Transit Authority. The prosecutor stated that it was his experience,
based on past criminal investigation interviews, that Transit Authority
workers did not have a "very good opinion" of police officers and were
not "usually fair and impartial when it comes to evaluating them."
(Id. at 554-55). The same explanation was offered for
venireperson forty-one. (Id. at 556).
The prosecutor stated that venireperson thirty-seven had appeared
"stone faced" throughout the proceedings and he could not "read her."
(Id. at 555-56). Further, he did not think she had been
"particularly up front" with the parties. (Id. at 556).
As to venirepersons forty-three and forty-four, the prosecutor
explained that he thought they might be "too sympathetic" because
venireperson forty-three worked in a day care facility and venireperson
forty-four was involved to "a very large extent with church activities."
(Id. at 556-57). Lastly, as to venireperson two of the second round of jury selection,
the prosecutor explained that he had "a problem" with the fact that she
wore sunglasses despite the lack of brightness in the courtroom.
(Id. at 559). The prosecutor opined that she did not appear to
be paying attention and that her wearing sunglasses indoors could
indicate "a substance abuse problem." (Id.).
None of the defendants, including petitioners, challenged any of the
prosecutor's explanations as inadequate or pretextual. Thereafter, the
court reiterated that the Batson application was untimely, but
stated that it would make a ruling on the merits "because of the record."
(Id. at 557). The court then found that the defendants had
failed to make a prima facie showing of racial discrimination.
(Id.). Specifically, the court found that "clear reason"
existed for the prosecutor's peremptory challenges, that there was "no
pretext," and that "the challenges were not exercised to discriminate on
the basis of race." (Id. at 558).
a. Stipulation Regarding Collins's
In his opening statement at trial, Collins's attorney argued that
Collins had not been caught on videotape or in photographs and that he
was not directly implicated by anything recovered pursuant to search
warrants. (Trial Tr. at 817-19).
Detective Mark Tebbens testified on direct examination that on January
5, 1992, he watched one of the Bronx drug selling spots from 12:30 a.m. until 5:00 a.m. and observed Collins and one
"of his co-defendants, Russel Harris, in the location for several hours
while lookouts rode bicycles nearby, whistling or yelling when the police
came onto the block. (Id. at 1069-74, 1101-17, 1124, 1156-57).
During that time, another co-defendant, Wilfredo De Los Angeles, arrived
and spoke to Collins, Harris, and the lookouts. (Id.).
Detective Tebbens also stated that Collins's address was near the
location of the surveillance. (Id. at 1126-27).
On cross-examination, Collins's attorney inquired whether "the only
thing" Detective Tebbens could say with respect to Collins's activities
was that he saw Collins once "in his own neighborhood talking to his
neighbors." (Id. at 1441-43). Detective Tebbens responded that
Collins had appeared to be talking to lookouts and directing people to
the drug purchasing location. (Id. at 1442). Collins's attorney
then elicited that, while from late 1989 to mid-1993 Detective Tebbens
saw various people around 354 Cypress Avenue, the location where bosses
and upper-level workers of the drug spots often gathered, he never saw
Collins in the area during that period. (Id. at 1443-45).
Next, Detective Edwin Benitez testified that he began his investigation
into the Mott Haven narcotics trafficking activities in June 1992.
(Id. at 1542-45). Collins's attorney then elicited that
Detective Benitez had never seen Collins around the Bronx drug selling
spot Detective Tebbens had testified about earlier. (Id. at
2143). At a sidebar conference, the prosecutor informed the court that Collins
had been in jail since February 1992, a period that encompassed the tail
end of Detective Tebbens' sinvestigation and the entirety of Detective
Benitez's investigation. (Id. at 2144). The prosecutor stated
his intention to introduce records to that effect, and the court ruled
that Collins's attorney had opened the door to an explanation.
(Id.). The prosecutor then asked Collins's attorney for a
stipulation, but he declined, stating that it would be "[e]asy enough"
for the prosecution to prove its point. (Id. at 2147-48).
Cross-examination resumed and Collins's attorney elicited from
Detective Benitez that during the period of his investigation he never
saw Collins participate in and was unaware of Collins's involvement in
investigation-related activities of which Detective Benitez had
knowledge. (Id. at 2150-55).
A subsequent colloquy occurred following the examination of Detective
Kevin Bryant, whose investigation began after Collins was incarcerated.
The judge reiterated that counsel had opened the door to an explanation
about Collins's absence and noted a preference that the parties stipulate
that Collins was not in the vicinity rather than that he was
incarcerated. (Id. at 10718-19). The court opined that evidence
of incarceration was "prejudicial," (Id.). The prosecutors
replied that such a stipulation would inaccurately imply that Collins
voluntarily chose to remove himself from the area. After more discussion, the court directed the parties to "start thinking
of an appropriate stipulation." (Id. at 10723).
At the close of the prosecution's case, the prosecutors read a series
of stipulations to the jurors, one of which was that Collins had been
incarcerated since February 1992. (Id. at 17912). At a sidebar
conference Collins's attorney informed the judge that he had not agreed
to the stipulation. (Id. at 17913). He also moved for a
mistrial, asserting he had not opened the door to evidence of Collins's
incarceration. (Id. at 17913-18).
The court rejected the claim that the door had not been opened, stating
that Collins's attorney's inquiry of the prosecution's witnesses had
"raised an unfair inference." (Id. at 17917-18). With respect
to the stipulation, the court offered to inform the jury that Collins had
not agreed to the stipulation. (Id. at 17918). Collins's
attorney declined, stating that he did not want to "highlight" the
information. (Id.). The court also offered to instruct the jury
"not to draw any inference" from the dates any of the defendants were
incarcerated. (Id.). None of the attorneys accepted that offer.
(Id. at 17919).
During deliberations, the jury sent a note requesting the "stipulation
of in jail dates of all defendants." (Id. at 20972). The
prosecutor argued that the court should read the stipulations addressing
the incarceration of Collins and several of his co-defendants.
(Id. at 20975-76). Collins's attorney argued that he had not
opened the door to that evidence and had not stipulated to its admission, and reminded the court that he
objected after the prosecutor read the stipulation to the jury.
(Id. at 20976, 20982, 20986, 21150-52). Noting that Collins had
declined the court's offer to have the stipulation withdrawn, the court
held that the evidence of Collins's incarceration had come in by
stipulation and would be reported to the jury that way. (Id. at
21157-58). The record does not reflect whether and when the stipulation
was in fact re-read to the jury.
b. Statements by Trial Judge
i. Statements Regarding Scope of Witness
During his cross-examination of cooperating witness George Santiago,
Collins's attorney elicited that Santiago had been incarcerated at Rikers
Island and that during his stay there he had been "called into security"
with respect to his involvement with a gang, the "Latin Kings."
(Id. at 10114). When the judge sustained a prosecution
objection to Collins's attorney's request for a description of the Latin
Kings, Collins's attorney requested a sidebar. (Id.).
At the sidebar, Collins's attorney alleged that Santiago (1) had shot
or been involved in the shooting of the individual for whose death
Collins was presently on trial, (2) was an upper-level member of the
Latin Kings, and (3) was able to exert control over prosecution witnesses
because of his status. (Id. at 10116-17, 10133). Thus,
Collins's attorney wanted to inquire into Santiago's gang membership. The judge told Collins's attorney that he had an "absolute right" to
elicit Santiago's Latin Kings membership, but that "how far [counsel was]
going to be able to go from there from an evidentiary point of view is
a totally different issue." (Id. at 10118-19, 10134). While the
judge was. explaining her ruling, Collions's attorney interrupted and set
forth the information he intended to elicit upon the resumption of his
cross-examination. (Id. at 10119). The following exchange then
The Court: No. If your next question will be "are
you a member" sten to me first.
[Collins's attorney]: I will listen to you first
and then I will be heard.
The Court: You will be heard because I will hear
you. But if you do something I tell you not to
do[,] I warn you right now you will sit down and
your [cross-examination] will end.
[Collins's attorney]: If you want to run that
The Court: Because I am putting you on notice now.
I want you to know in every trial I have with you,
you try to push me to the limit. And I'm warning
[Collins's attorney]: I am representing my client.
The Court: And you do a good job but you will ask
the questions that I permit.
[Collins's attorney]: I will go into the areas
that you permit but I will ask my questions. I'm
doing the cross-examination here.
The Court: When I sustain an objection you will
follow my ruling. [Collins's attorney]: I will follow your ruling in
terms of areas, but I will not follow your script.
The Court: Don't yell at me. Don't put your face
in my face. And change your tone of voice.
[Collins's attorney]: I won't follow the Court's
The Court: You can say anything you want, if you
don't follow the ruling
[Collins's attorney]: I will follow your ruling to
The Court: Be quiet and listen to me. Remember
there's no jury here. I tell you right now if you
don't do what I say you will have an exception and
you will have your objection noted. If you don't
listen to me, I'll direct you to sit down. And I'm
telling the jury exactly what you're doing and
what you've done, before in other trials.
[Collins's attorney]: What will you do that for?
You wouldn't do something like that what I've done
in other trials?
The Court: In front of the jury, I will tell the
jury this is the standard procedure you follow in
the hope of building a record for appeal if there
should be a conviction. I will say everything that
I have to say and it will make you look bad.
(Id. at 10119-22).
The judge then ruled that Collins's attorney could ask Santiago whether
he belonged to the Latin Kings and whether he knew what the Latin Kings
were, (Id. at 10122). The judge later commented that Collins's
attorney should "listen rather than pick a fight," that she agreed that
he had a good faith basis for his inquiry, and that he could elicit if
possible that Santiago could coerce witnesses to testify as he wanted.
(Id. at 10123). The judge specified, however, that Collins's attorney had to pursue his
line of inquiry "in the proper way." (Id. at 10124). The
following exchange then occurred:
[Collins's attorney]: . . . I'm sure the Court is
aware of the fact why you can set out what areas
and the extent of the questioning and alike, you
cannot give me my cross-examination for my client.
You've not prepared this case from my point of
view. Let me finish
The Court: No. You're not going to finish. I
didn't say I would ask your questions, what I said
was this[:] If you ask a question and there's an
objection and I sustain it you will follow my
[Collins's attorney]: Oh yes. Most certainly. Of
The Court: Otherwise you will have to go to
another area. If you don't follow the ruling you
will have to sit down.
[Collins's attorney]: I'm going to ask my
The Court: Let's cu[t] the B.S. I'm warning you.
Make your questions consistent with the rules of
[Collins's attorney]: Yes.
The Court: If you don't I'll give [a] speech to
the jury and you'll end up sitting down, but I
will give it in such a loving manner you won't
find as distasteful as you hope.
(Id. at 10124-25).
The judge later ruled that Collins's attorney could not inquire about
the Latin Kings unless he first established that Santiago was a member.
(Id. at 10129-32). When Collins's attorney stated that he
sought to ask Santiago whether the Latin Kings was a Puerto Rican
organization and whether members owe allegiance to each other, the judge agreed that counsel could
pursue that inquiry if Santiago admitted to membership in the group.
(Id. at 10134).
ii. Sidebar Regarding Method of Cross-Examining
Another sidebar was called while De Los Angeles's attorney was
cross-examining another cooperating witness. At the sidebar, the
prosecution stated, in essence, that De Los Angeles's attorning was
confusing the witness by his method of questioning. The following
exchange then took place:
The Court: That's his job, to obfuscate the truth,
confuse everything. Just laughing when I said
[De Los Angeles's attorney]: It's not my job
The Court: Have a sense of humor.
(Id. at 11033).
At the charge conference, the court informed the parties that it would
deliver a charge regarding the age element of conspiracy in the first
degree.*fn4 The court planned to instruct the jury that the prosecution was required to prove that
at the time of the agreement, the defendant, "referring to each
defendant," "was over [eighteen] years of age and at least one of his
co-conspirators was under [sixteen] years of age." (Id. at
18538). The court added that it was "not a defense" that "a defendant did
not know that the person under [sixteen] years of age was under age or
that he believed that person to be [sixteen] years or older."
(Id. at 18538-39).
Collins's attorney then asked whether the court would charge the jury
that it must find that, "even though the defendant did not have to be
aware" that the other individual was under the age of sixteen, that the
prosecution proved "an agreement between that defendant and the party
under the age of [sixteen]." (Id. at 18539-40). The court
replied that the prosecution was required to prove only that the
"defendant was over [eighteen] years of age and at least one of
his co[-]conspirators whom the defendant knew was a member of the
conspiracy was under [sixteen] years of age." (Id. at 18540).
Collins's attorney responded, "Fine." (Id.).
After the court charged the jury as such, Collins's attorney stated
that he "disagree[d] with the court that s[cie]nter is not required" for
first-degree conspiracy. (Id. at 20950-51). The court replied
that "the law does not support that position," and Collins's attorney
said nothing further on the matter. (Id.). (2) Multiple Conspiracies
Also in its conspiracy charge to the jury, the court noted that "the
defendants contend that as to the conspiracy count the [prosecution's]
proof fails to show the existence of one overall conspiracy" and instead
"may show several separate conspiracies with various groups or members."
(Id. at 20841). The court instructed the jury that whether
there existed "a single unlawful agreement or many such agreements or
indeed no agreement at all" was "a question of fact that you the jury
determine in accordance with the instructions I'm about to give you."
The court further stated:
If you find that [the] conspiracy charge[d] in the
indictment did not exist you cannot find the
defendant guilty of a conspiracy that is not
charged in the indictment. . . . [I]n other words,
if you find that the conspiracy charged in the
indictment did not exist you cannot find the
defendant guilty of that conspiracy charge. This
is so, even if you find that a defendant was a
member of some conspiracy other then the one
charged in the indictment.
(Id. at 20, 842). Following the charge, counsel for
petitioners' co-defendant argued that the court had not informed the jury
that it "must acquit" if it found multiple conspiracies. (Id.
at 20936-37). The court responded, "I think I did say that. I will rest
on the record." (Id. at 20937). The attorneys for Gonzalez and
several other co-defendants joined in the argument. (Id. at
20937-39, 20955-56). During deliberations, the jury sent a note to the court asking whether
it could find any defendant guilty of conspiracy if it found that the
organization that sold the cocaine with red tops was "independent of" the
orange top organization, or, alternatively, if it found that "Red and
Orange Top operated together for only a portion of the time charged."
(Id. at 21281-82). After conferring with the other defense
attorneys, counsel for Rafael Perez, petitioners' co-defendant, stated
that the defendants requested a charge "directing an acquittal in the
event the jury concludes something other than a single conspiracy was
proved." (Id. at 21286). The court ruled that it would
"basically" repeat its previous charge. (Id. at 21288,
The court then instructed the jury that it would be "inaccurate" and
"misleading" to answer its questions in the negative, but instead would
give a "short recharge on various aspects of conspiracy." (Id.
at 21299). The court reminded the jurors that whether there existed a
single conspiracy, multiple conspiracies, or no conspiracy at all was a
question of fact for the jury to decide. (Id.). In addition,
the court reiterated that if the jurors found that "the conspiracy
charge[d] in the indictment did not exist, . . . or that a conspiracy
with separate and distinct purposes existed, then you cannot find the
defendant guilty of the conspiracy charged." (Id. at 21301-02).
The court further added that if "you find that the conspiracy charged
in the indictment existed between any of the defendants you must then decide as to each defendant on an
individual basis whether that defendant joined the conspiracy with
knowledge of any of its unlawful purposes or some of its unlawful
purposes. . . . [E]ach defendant is entitled to individual consideration
of the proof." (Id. at 21301-02). The court also gave general
instructions concerning the definition of a conspiracy and, specifically,
the definitions of single versus multiple conspiracies. (Id. at
The defense attorneys objected to the supplemental charge as
"unbalanced." The court overruled the objection, stating that it would
"rest on the record." (Id. at 21304-06).
ii. Charge on the Nature of Deliberations
Before sending the jurors into the jury room, the court reminded each
that he or she had "given your oath that you will consult with each other
and deliberate with the view  towards reaching an agreement in this
case." (Id. at 20963). The court noted that the purpose of the
trial was "to have the jury reach a verdict as to each defendant if
humanly possible as consistent with your principles." (Id. at
20964). The court instructed the jurors to be "calm," "open-minded," and
"rational," and to "talk to each other and share your views for as long
or as short as may be necessary." (Id. at 20965).
On May 10, 1995, eight days after commencing deliberations, the jury
sent a note to the court asking for "very `specific' instructions as to
what deliberations among jurors consist of." (Id. at 21350).
The note continued, "for example, is saying, `I did not believe the testimony of one witness and I
have nothing more to say' sufficient for deliberation?" (Id.).
In a colloquy outside the presence of the jury, the court proposed that
it would give the jurors a "similar instruction [to] that I have given
before about the duty to deliberate." (Id. at 21352). Counsel
for Collins then asked that the court include language noting that the
deliberations had already lasted "several days," and stating that if a
juror was "still of a certain mind that you do not accept the credibility
of a witness, . . . [the] juror does have a right after exchanging their
views to hold firm to what it is they concluded based upon their
deliberation and all the evidence they heard." (Id. at
21353-54). After the court responded that it was "not giving a full
Alien charge yet," all of the defendants joined in Collins's
arguments. (Id. at 21354).
The court then charged the jury as follows:
That is not deliberation. That is a refusal to
participate in deliberation. We have discussed
this on a number of occasions. You each took an
oath, you took an oath to follow the law, to
evaluate the testimony, you took an oath to confer
with each other and review all of the testimony
and apply the law to it fairly to both sides. You
took an oath that you would apply the standard of
reasonable doubtthat's doubt based on
reasonand not arbitrarily reject the
testimony of any witness or refuse to consider it.
Your duty as jurors is to discuss among yourselves
using reason, logic and common sense. You have
taken an oath to do that and it is your sworn duty
to do so.
This has been a long case as we have discussed on
many occasions. Everyone has put a lot of effort into this case and probably
most of all[,] all of you. You have given your
oath that you would consult with one another,
deliberate with a view towards reaching an
agreement that could be fair to both sides, that
you would never resort to sympathy or prejudice or
be arbitrary or resort to speculation and that you
would follow the law and all principles. The
purpose of this trial is to have you, the jury,
reach a verdict for each defendant if humanly
possible, consistent with your principles. No jury
will ever be better equipped than you to reach
Obviously each of you should not hesitate to
re-examine your views and if you feel that in
reason you cannot accept something, then you may
say so and give a reason for it. However, you
cannot arbitrarily reject any testimony and you
must apply the law as it has been given to you, so
when you go back to the jury room now, remember
your oath as jurors. ...