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May 4, 2004.

JOSE LLACA, Petitioner, -against- GEORGE B. DUNCAN, Respondent; DANIEL GONZALEZ, Petitioner, -against- MICHAEL McGINNIS, Respondent; LINDWOOD COLLINS, Petitioner, -against- FLOYD G. BENNETT, Respondent

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.


 A. Facts

  The following is a brief summary of the facts adduced at petitioners' trial.*fn1

  1. Overview

  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, 1777, 1904).

  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, 8997-98).

  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, 15535).*fn2

  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.

  2. Pre-Trial Proceedings

  a. Severance

  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).

  3. Jury Selection

  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.).

  b. Batson Challenge

  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 challenge. (Id.).

  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).

  4. The Trial

  a. Stipulation Regarding Collins's Incarceration

  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 Cross-Examination

  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 took place:
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 risk.
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 you now.
[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 script.
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 letter.
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 ruling.
[Collins's attorney]: Oh yes. Most certainly. Of course.
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 questions.
The Court: Let's cu[t] the B.S. I'm warning you. Make your questions consistent with the rules of evidence.
[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 Witness

  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 that.
[De Los Angeles's attorney]: It's not my job —
The Court: Have a sense of humor.
(Id. at 11033).

  c. Jury Instructions

  i. Conspiracy Charge

  (1) Age Element

  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." (Id.).

  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, 21296-97).

  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 21299-304).

  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 doubt[—]that's doubt based on reason[—]and 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 these verdicts.
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. ...

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