Attorney in murder case claims juror misconduct; wants Shawn Appleberry conviction thrown out

Attorney claims juror misconduct, wants conviction tossed

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ROCHESTER, N.Y. — A murder conviction is in jeopardy.

Shawn Appleberry was found guilty in November of the murder of Desmin Diggs in Irondequoit. But his lawyer argued before a judge Friday that the conviction should be thrown out because a juror committed misconduct.

The attorney, Mike Whitmer, claims Juror #3 knew the victim and was not impartial. Because of that, he claims there are grounds to throw the verdict out.

On Friday, that juror took the stand to answer questions.

Whitmer questioned Juror #3 for more than an hour, pulling out several Facebook posts as evidence.

It was established that the juror worked with Diggs’ child — and that the juror had liked or shared several Facebook posts relating to Diggs’ death.

The juror said repeatedly she had not known anything about who Diggs was, just that her co-worker’s father had died.

The juror claimed she has received threats because of this alleged connection, and she accused Whitmer of personally trying to put her in danger.

Whitmer and Monroe County Judge Stephen Miller verbally sparred several times over the judge’s decisions to deny certain requests. And as the arguments came to a head — twice — the judge called for an abrupt recess and went to his chambers.

Assistant District Attorney Kevin Sunderland prosecuted Appleberry. He said Friday he stands behind the decision to choose this woman as a juror.

“If you simply looked at it, without hearing testimony, it may — you may draw questions, raise questions. But then that’s why a hearing was granted. A hearing was granted to clear up any issues, and that hearing just occurred. And that juror was honest and forthright about everything that occurred. And again the people are confident that this will stand, and we can move onto sentencing for this person,” Sunderland said.

Conscious Naga Maat, Appleberry’s sister-in-law, takes issue with the choice.

“On Facebook what you do is very intentional — you don’t just go on there and do stuff unless you’re a crazy person,” she said. “You’re going to know what you’re sharing. Everything is intentional. And what she did was totally intentional to deprive Appleberry of a fair trial.

If the judge were to find the juror guilty of misconduct, the verdict would be thrown out, and the District Attorney’s Office could retry the case.

The judge is expected to make a decision on the next court date, March 18.

Shawn Appleberry was convicted last fall of the murder of Desmin Diggs. His attorney wants the conviction thrown out, claiming juror misconduct — saying a juror knew Diggs’ child and liked or shared Facebook posts about his death. (File photo)