an empty jury box
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ALBANY – A court officer’s inappropriate comment to a deliberating juror requires reversing a drug conviction, a judge has held, even though a Queens defense attorney, in a strategic dice roll, had refused an offer of a mistrial.

Defense attorney Dietrich Epperson said in an interview that he suspected that at least one juror was outraged at the officer’s comment, and he guessed the panel would either acquit his client or hang. His hunch was wrong, but his legal research was right, according to Queens Supreme Court Justice Stephen Knopf (See Profile).

Knopf, in an apparent case of first impression statewide, said Aubrey Armstrong deserved a new trial because the defense could not waive—and the court could not cure through admonitions to the jury—a “mode of proceedings error.” His decision relied largely on a 1966 U.S. Supreme Court precedent, Parker v. Gladden, 385 U.S. 363, and a related ruling by the New York Court of Appeals in 1979, People v. Ciaccio, 47 NY2d 431.

In People v. Armstrong, N10397/13, the defendant was charged with possessing and selling crack cocaine in September 2013. An undercover officer testified that Aubrey sold him cocaine and provided his telephone number. Armstrong was arrested the following day when another undercover officer called him, using the phone number obtained the day before.

The jury had been deliberating for four days when one of the jurors reported that a court officer, while escorting the panel to an elevator, said that authorities would not have had Armstrong’s phone number if he hadn’t provided it himself.

Knopf immediately investigated. The officer, who is not identified in the decision, admitted he was wrong to speak to the juror. Knopf immediately removed him from the trial and ordered him to refrain from any further contact with the jury.

The judge advised both the prosecution and defense that he intended to declare a mistrial. Epperson, however, refused the offer and asked that the jury be allowed to continue deliberating.

The judge then extensively quizzed three jurors who either heard or were aware of the officer’s comment. After receiving assurances that they could remain fair and impartial, he allowed deliberations to continue. Armstrong was convicted of a third-degree sale and a seventh-degree possession charge.

On appeal, Epperson argued that the court officer’s misconduct was so egregious under Parker v. Gladden that reversal was required as a matter of law.

In that case, a bailiff told jurors that the defendant was a wicked individual, and if they made any mistake in finding him guilty a higher court would correct any error.

Thirteen years later, in Ciaccio, the state’s highest court, citing Gladden, reversed a conviction where a court clerk told jurors that the trial judge wanted them to continue deliberating because of all the time and money invested in the case.

Knopf said that although Epperson “should have accepted the court’s offer of a mistrial, rather than having to deal now with an unfavorable verdict,” the court officer’s misconduct irreparably tainted the trial. He said a defendant cannot waive his right to challenge a “mode of proceedings” error, and the court can’t remedy the problem with a curative instruction.

“[T]he unauthorized and improper statements made by the court officer about the case to deliberating jurors amounts to a mode of proceedings error that cannot be waived, despite being unpreserved by the defendant,” Knopf wrote. “Furthermore, this court finds that despite the curative actions taken by this court, and despite the assurances of the jurors, a mode of proceedings error such as the one here cannot be cured.”

Epperson admitted the decision to go forward with deliberations rather than accepting a mistrial was risky. But by that point, Epperson said the jury had already spent four days deliberating a fairly simple case, the juror who was approached by the court officer seemed incensed, and he figured the jury was going to deadlock.

“It was a little bit of an aggressive decision, but we decided to go forward,” Epperson said. “We thought maybe there was some ammunition for the jurors who were on our side, and frankly we were concerned that if there was a retrial they’d be able to clean up their case and have a better shot at a conviction. We thought it was our best shot.”

Epperson said he was surprised at the conviction, and second-guessed the decision to go forward. But Epperson, a former assistant district attorney in Queens who was an assigned 18-B lawyer on this case, said he thought Gladden would entitle his client to a retrial. According to Knopf, he was right.

Queens Assistant District Attorney Harold Rosengarten prosecuted the case.