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People v. Simms

December 1, 2009

THE PEOPLE &C., APPELLANT,
v.
EVERTON D. SIMMS, RESPONDENT.



This memorandum is uncorrected and subject to revision before publication in the New York Reports.

MEMORANDUM

The order of the Appellate Division should be affirmed. After deliberating about four and one-half hours, the jury in this case rendered its verdict, finding defendant Everton D. Simms guilty of two counts of first-degree robbery (Penal Law § 160.15 [4]). At defense counsel's behest, the jurors were asked by the court clerk to declare individually whether the guilty verdict announced through the foreperson was their verdict in all respects. The first nine jurors answered "Yes," while juror number 10 replied, "Well, it is my verdict, although I feel like I was pressured to make that decision." As the clerk moved on with the poll, juror number 10 volunteered, "It is my verdict." The trial judge then interjected, "That is your verdict; is that correct?" and juror number 10 replied, "Yes."

Once the jury poll was completed, with the remaining two jurors answering "Yes," defense counsel sought a conference, which took place in the private walkway behind the courtroom. He moved for a mistrial on the basis of what juror number 10 said. The trial judge replied that he would ask juror number 10, outside the presence of the other jurors, "what . . . she mean[t] by pressure, was there pressure inside the [jury] room or outside the [jury] room." Defense counsel wanted juror number 10 pushed to explain why she felt pressured because otherwise "we [would] still know no more than what we know right now." The judge rejected this notion, explaining that he would not "invade the sanctity of the jury deliberation process," and "[t]hat is the whole system, that we don't know what goes on in [the jury room]."

Upon returning to the courtroom, the trial judge sent all of the jurors except juror number 10 back to the jury room. He then told juror number 10 that he "underst[ood], in summary," that she had said "two things . . . [o]n one hand you said that is your verdict, and you also said you were pressured, is that a fair summary?" Juror number 10 agreed that it was. The judge then asked her what she "mean[t] by the word pressure in this context." Juror number 10 replied, "Well, I believe that it was pure chaos in there. Everyone was speaking at the same time."

The trial judge then cautioned juror number 10 that he had "conflicting duties," one of which was "to preserve the sanctity of the jury deliberation[s]." As a result, he "really [felt] restricted," could not "go into that [jury] room, intellectually," and was "really hesitant to cross that boundary." Juror number 10 acknowledged that she understood, and the judge continued the inquiry:

"THE COURT: Thank you.

So I return to you and I simply ask you if you can tell me what did you mean by the word pressure in this context?

"JUROR NUMBER 10: Well, I meant pressured by the fact that everyone is standing up, yelling at me, why can't you see it that way, why can't you see it that way? Everyone is yelling like that. After eight hours of that you have to give in.

"THE COURT: All right. Now I want to ask you something: When you use the word pressure, based on what you're saying, I understand you to mean what occurred inside the jury room, am I correct?

"JUROR NUMBER 10: Uh-huh. Yes.

"THE COURT: Thank you. You in no manner mean anything that happened outside the jury room; is that correct?

"JUROR NUMBER 10: That's correct.

"THE COURT: It had nothing to do with having to go home to attend to ...


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