PEOPLE V. MORRISON: SOME ANXIOUS OBSERVATIONS ON THE COURT OF APPEALS' O'RAMA JURISPRUDENCE.

• Author: Shechtman, Paul

A politician once said, "I'm not known to make many mistakes, but when I do, it's a doozie." (1) The Court of Appeals' ("Court") decision last term in People v. Morrison (2) is a doozie. One can confidently say that no other jurisdiction in the country would reverse a defendant's conviction for raping a 90-year-old Alzheimer's patient because the trial judge may not have shared the exact contents of a jury note with defense counsel, even though counsel was aware of the note's existence and never objected to the judge's conduct.

I.

1. Morrison: Factual Background

   William Morrison worked as an aide at a nursing home in Rome, New York where Helen Smith, a 90-year-old Alzheimer patient, was a resident. (3) On May 24, 2006, Morrison put Smith on her bed, penetrated her and ejaculated. (4) As he left the room, she told him that she was "going to tell on [him]," which she did. (5) An examination revealed the presence of semen in her vagina, and DNA testing confirmed that Morrison was its source. (6) Morrison later confessed to having intercourse with Smith, signing a statement in which he told the police that he had been sexually abused as a child and this was a chance to reverse roles. (7)

   An Oneida County grand jury indicted Morrison for Rape in the First Degree, Sexual Abuse in the First Degree, Endangering the Welfare of a Vulnerable Elderly Person in the Second Degree, and Willful Violation of Health Laws. (8) Morrison's trial, which had twice been postponed and garnered considerable media attention, began on Monday, February 26, 2007. (9) The judge was eager to finish it by Friday, having scheduled another trial for the next week. (10) For that reason, when deliberations began late Wednesday afternoon, the judge offered the jurors the option of staying past 4:30 p.m. (11) They chose instead to come back the next morning and were excused for the night. (12)

   On Thursday, the judge addressed four jury notes requesting legal instructions, exhibits and read-backs of testimony. (13) In each instance, before giving his response, he read the note into the record in the jury's presence. (14) At 4:30 p.m., the jury sent out two more notes in rapid succession. (15) The first revealed a partial verdict: "We have made a decision on the Third Count [the endangering count] we are having hard time with 1 and 2 just giving you are [sic] status." (16) The second note revised the first: "We have arrived on decision on 2 [the sexual abuse count] and 3. [B]ut we have a lot of work to do on #1. [D]on[']t see it being quick. Not sure what to do. We ars [sic] starting to make way." (17)

   The judge marked the two notes as Court Exhibits 8 and 9, respectively, and recalled the jury. (18) He then told the jurors, "I have received a note, which I have marked as Court Exhibit Number 9, and I will not read that into the record, but I'm sure you know what it says." (19) He stated, "[W]e are hoping that at some point you will be able to come to a unanimous verdict on all three of the charges," and gave a mild Allen-like instruction, encouraging the jurors to "listen to what the other jurors have to say" but not to "just abandon your feelings to reach a unanimous verdict." (20) After telling the jury, "[W]e as a group would like you to keep working," he gave them the choice of deliberating "another hour tonight" or returning in the morning, and they chose the latter course. (21)

   On Friday, the jury sent four more notes containing requests for further legal instructions. (22) The judge again read the notes into the record in the jury's presence before responding to them. (23) After the fourth note, he gave another Allen-like instruction. (24) That afternoon, the jury returned a guilty verdict on all three counts. (25) Morrison, who had one prior felony conviction and five misdemeanor convictions and lied to get the nursing job, was sentenced to twenty-five years imprisonment on the rape count with lesser sentences on the other counts, to run concurrently. (26)

   Represented by the local public defender, Morrison appealed his conviction to the Fourth Department, raising two issues: first, that the People's belated disclosure of an investigator's report violated Brady and Rosario; second, that testimony about the DNA results by a laboratory supervisor who had not performed her own independent analysis violated his Sixth Amendment right to confrontation. (27) The Fourth Department found merit in both claims but concluded that the errors were harmless. (28) Leave to appeal was denied. (29)

   That was merely the end of the beginning of Morrison's appellate litigation. In December 2014, Morrison, pro se, moved the Fourth Department for a writ of coram nobis. (30) He argued that he had been denied the effective assistance of appellate counsel--specifically that appellate counsel had not raised a claim that the trial judge had improperly handled Court Exhibits 8 and 9 by failing to comply with the procedures prescribed in People v. O'Rama. (31) In May 2015, the Fourth Department granted the writ. (32) It concluded that the previously unargued O'Rama claim "may have merit" and directed the parties to submit briefs. (33)

   In March 2017, after full briefing, the Fourth Department ruled in Morrison's favor. (34) Court Exhibit 9, the court found, was not merely "ministerial" (it was a "substantive inquiry for guidance concerning further deliberations"), and the judge had not informed defense counsel of its precise contents before responding. (35) That was per se reversible error under O'Rama. The fact that defense counsel had not objected to the judge's handling of the note was irrelevant, since preservation by objection was not required under O'Rama. (36) One justice dissented on the ground that the note was ministerial and granted the People leave to appeal. (37)

2. Morrison: The Court of Appeals' Decision

   In a memorandum opinion joined by Judges Rivera, Stein, Fahey, and Wilson, the Court of Appeals affirmed the Fourth Department's decision. (38) The majority held (i) that Court Exhibit 9 related to the substantive legal or factual issues of the trial and therefore was not ministerial; (ii) that defense counsel's "awareness of the existence and the 'gist' of the note" did not satisfy O'Rama, since counsel did not know its "entire contents"; and (iii) that because there was no record proof of compliance with O'Rama, a reconstruction hearing was not permissible to determine if the note had been shared with counsel at an off-the-record conference. (39)

   Chief Judge DiFiore, joined by Judges Garcia and Feinman, dissented on the ground there was "sufficient ambiguity in the record as to whether defense counsel received meaningful notice of the content of [the] jury note" to warrant a reconstruction hearing. (40) Judge Garcia dissented separately. (41) In a lengthy opinion, he called on the Court to abrogate the O'Rama no-preservation-required rule and to hold instead that if defense counsel is aware of the existence of a jury note, an objection is required for there to be an error of law. (42)

   II.

1. The O'Rama Decision

   The starting point for analysis is the Court's opinion in O'Rama in 1991. John O'Rama was charged with driving under the influence of alcohol. (43) On the third day of deliberations, the jury foreman sent out a note stating, "I don't see us ever reaching a unanimous verdict." (44) In response, the judge gave an Allen instruction. (45) On returning to the jury room, an individual juror sent another note, which the judge declined to read aloud. (46) Instead, he brought the jury back into the courtroom and "summarized the 'substance' of the note[,]" saying only: "it 'indicate[d] that there are continued disagreements among the jurors.'" (47) After questioning the jurors and determining "that a unanimous verdict was still possible," the judge gave another Allen charge and sent the jurors back to work. (48) Outside the jury's presence, the judge told counsel that he had not read the note from the individual juror because "it indicate[d w]hat the present posture is as far as votes." (49) When defense counsel asked to see the note, the judge declined the request. (50) That afternoon, the jury returned a guilty verdict. (51)

   The Court of Appeals began its discussion in O'Rama by citing Criminal Procedure Law section 310.30. (52) That provision dictates that upon receiving a jury note seeking further information or instruction with respect to a matter "pertinent to [its] consideration of the case," the judge "must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant... must give such requested information or instruction as the court deems proper." (53) Meaningful notice, the Court held, meant notice of the actual content of the note. (54) Only by knowing "the precise language and tone of the juror note" could counsel "frame intelligent suggestions for the fairest and least prejudicial response." (55)

   More specifically, the Court outlined a four-step process that a trial judge should follow when receiving a substantive jury note. (56) First, the judge should mark the note as a court exhibit and read it into the record in the presence of counsel and the defendant. (57) Second, she should afford counsel an opportunity to propose an appropriate response. (58) Third, she should inform counsel of her intended response so that counsel can seek modifications. (59) And fourth, she should return the jury to the courtroom, read the note aloud (so that the jurors can correct any transcription inaccuracies), and then, assuming no inaccuracies, give her response. (60) The Court recognized that there might be "unique articulable circumstances" that could make this process impractical, but emphasized that it should be the norm. (61)

   What came next is most important. The Court concluded that the trial judge's failure to disclose the contents of the jury's note had "prevent[ed] defense counsel from...