Judges can’t instruct juries on the burden of proof

Legislative changes made in 1996, expanding what may be included on a jury verdict sheet, do not allow instructing a jury on the burden of proof, the New York Court of Appeals ruled Thursday.

In People v. Jeffery H. Miller (2012 NY Slip Op 02127), the Court of Appeals also decided that when a jury verdict sheet exceeds the limitations of the law, harmless error analysis cannot be applied.

“We’re pleased that the court agreed with our two primary contentions,” said defender Drew R. DuBrin, a special assistant in charge of appeals for the Monroe County Public Defender’s Office. “Those being the verdict sheet content was not authorized by the legislative changes to CPL 310.20 and that such errors continue not to be subject to harmless error analysis.”

Geoffrey A. Kaeuper, chief of the Monroe County District Attorney’s Office’s Appeals Bureau, had argued the governor’s accompanying memo to the law intended to allow such, but the court disagreed in a 5-2 decision.

“There’s a lot of argument there about whether that shows the intent by the Legislature to make harmless error for this situation,” Kaeuper said. “Although we disagree with the decision, we accept it and we intend to retry [Miller].”

Miller, 36, of Rochester, had been convicted of second-degree murder and other charges in connection with the Aug. 10, 2005, shooting death of his former girlfriend, Shunda Cuyler, 30, as she sat in a car outside of her Woodbine Avenue residence.

At Miller’s 2006 trial, Monroe County Supreme Court Justice Thomas M. Van Strydonck had given the jury a six-page sheet of written instructions regarding the various charges and their elements. On one sheet, jurors were instructed that if they found Miller guilty of the murder charge, they must also consider the extreme emotional disturbance defense.

The part that was the subject of the appeal was a clause that asked if the defendant had established by a “preponderance of the evidence” that he acted under extreme emotional disturbance.

Attorney Lawrence L. Kasperek, who represented Miller at trial, objected, but Van Strydonck refused to remove the clause.

The jury found the extreme emotional disturbance defense had not been established, but the Appellate Division, Fourth Department, in a May 7, 2010, decision, reversed the conviction and granted Miller a new trial. It found the justice exceeded the statutory bounds of the law (CPL 310.20) by giving the jury a written legal instruction on the burden of proof, rather than merely complying with the law’s purpose and letting the jury distinguish between the counts.

The Court of Appeals rejected Kaeuper’s argument that the law, as amended in 1996, authorized the language used by Justice Van Strydonck and permitted the use of harmless error analysis.

“The court added not ‘statutory language … by which the counts may be distinguished,’ but an instruction on the burden of proof,” according to the seven-page majority decision, authored by Judge Robert S. Smith. “Nothing in CPL 310.20 (2) can be read to authorize this. Nor did the 1996 amendment … address the issue of harmless error.

“We have held that it is reversible error, not subject to harmless error analysis, to provide a jury in a criminal case with a verdict sheet that contains annotations not authorized by CPL 310.20 (2),” the decision states, citing People v. Spivey 81 NY2d 356, 361-362 [1993].

The Spivey ruling prompted the Legislature to amend the law to expand what may be included on a verdict sheet, but the higher court notes it left the basic principle unchanged.

The law was amended in 1996 to say that when there are two or more counts charging offenses in the same article of the law, “the court may set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished; provided, however, that the court shall instruct the jury in its charge that the sole purpose of the notations in to distinguish between the counts.”

Miller was also charged with second-degree criminal possession of a weapon and third-degree criminal possession of a weapon — two offenses in the same article of law, although the error was made on the murder count.

The Court of Appeals notes that in Spivey (at 361), it said “unless the parties agree,” the submission of such a verdict sheet, “is reversible error.”

The court also ruled the 1996 amendment left in tact the holding in People v. Damiano, 87 NY2d 477 [1996], that harmless error cannot be applied where a verdict sheet exceeds the limitations imposed under the law.

Kaeuper argued then-Gov. George Pataki’s memorandum supporting the amendment acknowledges judges might in the future place notations on verdict sheets beyond what the newly amended statute would permit, but that they should “not be subject to the onerous automatic reversal rule of Spivey” and “will be subject to harmless error analysis.”

Pataki cited People v. Owens, 69 NY2d 585, 591-92 (1987), in which the Court of Appeals held an error in submitting portions of a written charge to the jury was not subject to harmless error analysis because “the distribution of written instructions to the jury is not expressly authorized by law.”

The court rejected Kaeuper’s argument that the same applies in Spivey and Damiano, concluding “since some verdict sheet annotations are authorized by law under the 1996 amendment, an error as to what annotations are permissible may now be deemed harmless.” (Emphasis added)

The court disagreed, saying if that is what the Legislature intended, it should have said so.

“By contrast, the legislative response to Spivey and Damiano says not a word about harmless error,” the majority wrote. “We adhere to the holdings of those cases that harmless error analysis is inappropriate where the limits imposed on verdict sheet annotations by CPL 310.20 (2) have been exceeded.”

That argument is rejected in a hotly worded five-page dissent by Judge Susan P. Read, joined by Judge Eugene F. Pigott, who agreed the error was harmless and said they would have upheld Miller’s conviction.

They note Pataki’s detailed approval memorandum granted judges express authority to place certain kinds of explanatory information on verdict sheets, intended to prevent problems created in a line of cases leading up to Spivey, which took away judges’ “long-enjoyed” authority “to enhance the ability of deliberating juries to distinguish between seemingly identical or substantially similar counts …”

Pataki specifically said the amended law would restore trial judges’ authority to annotate verdict sheets and prevent needless reversals of convictions.

“The majority dismisses the approval memorandum’s reasoning as ‘too attenuated to justify rejecting’ the holdings” of Spivey and Damiano on the harmless error issue “as though the governor’s statements were some species of post-enactment ‘spin’ or propaganda,” Judge Read wrote.

Judge Read also noted the evidence against Miller was overwhelming. Also shot in the incident was Cuyler’s boyfriend, Freddie Collins, who suffered serious injuries. He identified the shooter as Miller, who, according to the decision, made many incriminating statements to his friends and family in the days after the crime.

Read goes on to say there was no proof that Miller suffered from a mental infirmity and that Justice Van Strydonck was generous to allow the jury to consider that defense in the first place.

“In sum, the evidence to support extreme emotional disturbance or a finding that defendant merely intended to seriously injure his victims was so weak that the verdict sheet annotations — which, in fact, supplied the jury with correct statements of law — cannot have affected the outcome,” Read wrote. “A decision to set aside a conviction under such circumstances is exactly the kind of ‘hyper-technical’ result that the Legislature sought to foreclose when it enacted Chapter 630 of the Laws of 1996.”

Miller, who was also charged with second-degree assault in connection with the attack on Collins, had been sentenced to 25 years to life in prison. He is being held at the Monroe County Jail. A new trial will be ordered.