Monroe v. Kuhlman

436 F.Supp.2d 474

Victor MONROE, Petitioner-Appellant, v. Robert H. KUHLMAN, Superintendent, Sullivan Correctional Facility, Respondent-Appellee.

No. 01-0654(JBW).

United States District Court, E.D. New York.

June 28, 2006.

Larry Sheehan, Esq., Bronx, NY, for Petitioner-Appellant.

Office of the District Attorney, Kings County, by Thomas Ross, Assistant District Attorney Brooklyn, NY, for Respondent-Appellee.

MEMORANDUM, ORDER AND JUDGMENT

WEINSTEIN, Senior District Judge.

Table of Contents

   I. Introduction...................................................... 475
  II. Facts 475......................................................... 475
      A. Procedure at Trial............................................. 475
      B. Documents Sent to Jury......................................... 477
 III. Procedural History Challenging Conviction......................... 478
      A. State Courts................................................... 478
      B. Federal Courts................................................. 478
  IV. Law of Habeas Corpus.............................................. 479
      A. Remand......................................................... 479
      B. Second Circuit Summary......................................... 479
      C. Case Not Affected by Standard.................................. 480
   V. Law on Jury Practice.............................................. 480
      A. History of the Jury............................................ 480
      B. Modern Reform Generally........................................ 480
      C. New York Reforms............................................... 482
      D. Lack of Constitutional Barriers to Reform...................... 482
      E. Supreme Court Guidance......................................... 483
      F. Specific New York Practice..................................... 484
 VI. Application of Law to Facts........................................ 484
 VII. Future Consultation Among Attorneys and Court 485
VIII. Conclusion 485

I. Introduction

Petitioner seeks a writ of habeas corpus. He claims that his constitutional rights were violated when the state trial judge allowed the jury to read documents admitted in evidence in the jury room, without counsel or court present, before the case had been submitted for deliberation. The petition is dismissed because (1) by not objecting despite full awareness, defense counsel consented to the practice; and (2) this technique is a commendable example of new procedures that are increasing the effectiveness of the modern jury.

II. Facts

A. Procedure at Trial

Petitioner was tried in the Supreme Court of the State of New York before a judge and jury. On strong evidence, he was convicted of murder. In May 1994 he was sentenced to a prison term of twenty-five years to life.

On several occasions during the course of the trial, the presiding judge ordered that exhibits that had already been formally admitted be brought to the jury room for examination by jurors while the court was in recess. The viewings occurred during breaks between trial sessions. On one occasion the judge instructed the jurors to come to court on a Friday when court was not in session.

The trial judge began this practice on the first full day of trial, giving the following instruction to the jury:

We're going to recess before the crossexamination, give you a break. During the break I'm going to have the physical exhibits that have been received in evidence shown to you so that you may see them; the photos and the ballistics evidence, and have the court officer display it for you on your table in the jury room. You are not permitted to have any discussion about these items. The photos you could just take and pass around, as well as there's a sketch, and look at them and pass them to the next juror and then we'll collect them when you have seen it. Again, don't discuss the case during the break. We'll resume in a few moments.

Tr. at 95. No objection was taken. Counsel and defendant were present.

The next day the judge again instructed the jurors to examine evidence in the jury room during a brief afternoon recess:

We'll take a break for a few moments. During the break I am going to have the photograph that was just marked by this [witness] passed around among you. There were also some photographs received in evidence yesterday which I will have passed around amongst you. Don't discuss anything about it. We'll resume in a few moments.

Tr. at 347-48. No objection was taken. Counsel and defendant were present.

After the break, the judge said, "Even if you didn't get a chance to see all the exhibits, we're going to give you the opportunity on the next break. I want to move this along." Tr. at 352. No objection was taken. Counsel and defendant were present.

Later that day, the judge once again informed the jurors about his plan for giving them additional opportunities to see the evidence:

All right. We're going to recess the trial because I have a substantial amount of other business to do, so I'm going to give you a longer lunch break again while I complete my other business. Those of you that didn't get a chance to see those exhibits, you'll have a chance now, and we'll resume at 2:15, and I've arranged for the rain to stop so you can enjoy the weather a little bit more to make up for yesterday. Don't discuss the case. Return at 2:15. Have a nice lunch.

Tr. at 400-01. No objection was taken. Counsel and defendant were present.

Finally, at the end of the day, the judge instructed the jury to come to the courthouse the following day, Friday, for the sole purpose of examining evidence:

Tomorrow, because of my other business, we will not be working on this trial. But what I am going to do, I am going to arrange to have the exhibit that you just heard about that's now in evidence available for you to look at and read. Come in in the morning. Dress casually, if you like. You will not be coming into the courtroom. The exhibit will be made available to you in the jury room. After you have had a chance to read it, you will be excused for the rest of the day.

Tr. at 458. No objection was taken. Counsel and defendant were present.

Trial resumed the following Monday. Once again, the judge instructed the jurors to examine evidence in the jury room during their break:

We are going to recess the trial for your lunch. Before you go out, I'm going to have the two photographs that were received in evidence that you haven't seen close up, that is Defense Exhibit F, and the photos of the line-up. You will see them in the jury room, again, no discussion permitted about them. We're going to resume the trial at 3:00 p.m.

Tr. at 579-80. No objection was taken. Counsel and defendant were present.

The following day, the judge summarized for the jury how the remainder of the trial would proceed.

I am going to tell you now that we will complete any testimony tomorrow, that's the plan, any further testimony that the defense wishes to offer, if any, we will complete tomorrow, hopefully, and then I'm going to arrange for Friday for you to come in to look at any of the physical exhibits again that you may not have seen, and on Monday you will get the case for your deliberations.

Tr. at 756-57. No objection was taken. Counsel and defendant were present.

The next afternoon, a Thursday, after the trial judge had dismissed the jury for a brief recess, counsel for the defendant objected to the planned Friday viewing.

THE COURT: Now, before we adjourn, I had proposed and I told the jury that I would bring them in tomorrow to review all the exhibits in the case. You have an objection to that.

MR. GIAVONIELLO: Judge, I know the Court indicated that last Friday and I know the Court said on the record that it was going to happen on Friday. To tell you the truth, I didn't hear it. And I would have objected last Friday and I object to it happening now, because the defendant will not be in Court.

THE COURT: You understand that all the exhibits have been shown to the Jurors in the Jury room without them coming into the Courtroom. So, they don't know that your client is not here.

MR. GIAVONIELLO: I don't know that and I object to that happening.

THE COURT: The only reason I'm doing that is for the convenience of the jurors.

MR. GIAVONIELLO: I understand that, Judge.

Supp. Tr. at 3. (Emphasis supplied.)

In response to this objection—counsel's first—the trial judge immediately cancelled the viewing planned for the following day, and discontinued the practice for the remaining two days of the trial.

B. Documents Sent to Jury

The following items were admitted into evidence:

PEOPLE'S EXHIBITS

Number Item
1.               Diagram of crime scene by Detective
                 Donohue
2.               Enlargement of number 1
5.               Envelope containing five spent shells
                 and two deformed copper jacketings
                 of bullets
6.               Officer Meyer's gun and the voucher
                   form for it
7.               Bullet from Officer Meyer's body
8.               12 autopsy photographs
9.               Willie Jones's medical records
10.              2 photographs of the lineup
11.              3 photographs of JoAnn Monroe's jeep
12.              Officer Meyers's timesheet
DEFENSE EXHIBITS
Letter Item
A-E              5 photographs of the crime scene taken
                   by the People
F                Photograph of defendant's brother
G                Audiotape of Willie Jones's statement
                   to an Assistant District Attorney

See Letter from Thomas M. Ross, Assistant District Attorney, June 27, 2006.

Exhibit number 12 was not viewed by the jury in the jury room because it was admitted into evidence after the trial court stopped the practice. All other exhibits were made available for viewing in the jury room. Exhibit number 2 cannot be found. It was simply an enlargement of Exhibit...