Opinion
2 CA-CR 2022-0109
08-03-2023
The State of Arizona, Appellee, v. Edward Michael Lopez, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Jana Zinman, Assistant Attorney General, Phoenix Counsel for Appellee. Law Offices of Thomas Jacobs, Tucson By Thomas Jacobs Counsel for Appellant.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20192920 The Honorable Brenden J. Griffin, Judge.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Jana Zinman, Assistant Attorney General, Phoenix Counsel for Appellee.
Law Offices of Thomas Jacobs, Tucson By Thomas Jacobs Counsel for Appellant.
Judge O'Neil authored the decision of the Court, in which Vice Chief Judge Staring and Judge Sklar concurred.
MEMORANDUM DECISION
O' N EIL, JUDGE.
¶1 Edward Lopez appeals his conviction and sentence for continuous sexual abuse of a minor. He argues the trial court erred in denying his motion for a mistrial. We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdict and resolve all inferences against Lopez. See State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). Lopez began sexually abusing his niece when she was around eight years old and continued until she was about eleven. She eventually disclosed the abuse to her boyfriend and later her mother.
¶3 Lopez was indicted, and during jury selection, a prospective juror disclosed that he was a criminal defense attorney working in appellate law and that he had once worked with a trial lawyer from his firm on a case involving the same prosecutor. He explained that the state's expert witness had "been a witness in a case [he had] worked on" and that he had "seen a lot of appeals concerning the admissibility of her testimony." He affirmed, however, that he could follow the judge's rulings on the admissibility of evidence and that none of his prior experiences or preconceptions would prevent him from being fair and impartial. He was ultimately seated on the jury and remained throughout the trial.
¶4 During deliberations, the trial court received the following note from the jury:
A juror with prior litigation experience in abuse cases with expert witnesses CANNOT separate the different cases and focus on the evidence presented in THIS CASE. Per his request, he would like to remove himself.
The court and counsel determined the note referred to the juror who had disclosed his past involvement with similar cases and questioned him privately. He affirmed the accuracy of the note and his request to be removed. He indicated that he could not "separate out [his] past experience and decide this case just based on this case, this evidence." Asked whether his "past experience [was] something that [he had] been communicating to the other jurors about," he answered, "Yes." The court excused the juror from service.
¶5 The trial court questioned the remaining jurors and afforded an opportunity for the attorneys to do the same. The jurors affirmed that the excused juror's "prior experiences" did not affect their ability to "embrace those legal concepts" described in the jury instructions, to "solely rely on the evidence that [they] heard in this case," to follow "the law that [the court] gave [them] in this case," or to "be fair and impartial." The court further emphasized the need for the remaining jurors "to make sure that [they we]re following the instructions that [the court] gave." The jurors affirmed that they were "confident" that they could do so.
¶6 Lopez later moved for a mistrial. The trial court denied the motion, noting that any suggestion of juror misconduct "would be speculating" and that "[w]e don't know what [the excused juror] shared." The court explained that when it had questioned the remaining jurors, it "was looking for body language," and "[t]hey were all nodding their heads, paying attention." The court observed that "[n]othing suggested . . . that the jurors had any hesitation about being able to follow the law."
¶7 The trial court called in an alternate juror, and the jury began its deliberations anew. The jury returned a guilty verdict, and the court later sentenced Lopez to twenty years in prison. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
¶8 Lopez argues the trial court abused its discretion in denying his motion for a mistrial based on the excused juror's having "shar[ed] prejudicial extrinsic information" with the rest of the jury. "Trial courts have considerable discretion to determine whether juror misconduct requires a mistrial or other corrective action, and the trial court's decision will not be overturned absent a clear abuse of that discretion." State v. Slover, 220 Ariz. 239, ¶ 22 (App. 2009) (quoting State v. Apodaca, 166 Ariz. 274, 276-77 (App. 1990)); see also State v. Williamson, 236 Ariz. 550, ¶ 27 (App. 2015) (appellate court reviews denial of a motion for a mistrial for an abuse of discretion). "In deciding whether a mistrial is warranted, courts consider (1) whether the jury has heard something it should not hear, and (2) the probability that the jury was influenced by what it heard." Williamson, 236 Ariz. 550, ¶ 29; see also State v. Vasquez, 130 Ariz. 103, 105 (1981) (juror misconduct not grounds for mistrial unless "misconduct was prejudicial to the rights of the defendant or when such a state of facts is shown that" prejudiced can be presumed (quoting State v. Adams, 27 Ariz.App. 389, 392 (1976))).
¶9 Lopez argues a different rule. He asserts that once the jury has "received and considered" extrinsic evidence, the court must grant a mistrial "unless the prosecutor proves beyond a reasonable doubt that the extrinsic evidence did not taint the verdict." See State v. Hall, 204 Ariz. 442, ¶¶ 16-17 (2003). But this standard applies to a motion for a new trial after a verdict, and Lopez filed no such motion. Id.; see Ariz. R. Crim. P. 24.1. The same rule does not apply to a motion for a mistrial.
¶10 A mistrial is the most dramatic remedy available to cure error during trial. State v. Adamson, 136 Ariz. 250, 262 (1983). Before declaring a mistrial, a trial court "must evaluate the situation and decide if some remedy short of mistrial will cure the error." Id. For example, striking improper evidence from the record or giving the jury an appropriate limiting instruction may cure the error when a jury has heard information that it should not have heard. See State v. Jones, 197 Ariz. 290, ¶¶ 32-34 (2000). "We give great deference to the trial court's decision because the trial court 'is in the best position to determine whether the evidence will actually affect the outcome of the trial.'" State v. Doty, 232 Ariz. 502, ¶ 17 (App. 2013) (quoting Jones, 197 Ariz. 290, ¶ 32).
¶11 By contrast, a motion for a new trial is made after the jury has already returned a verdict, when many lesser remedies are no longer available. See Ariz. R. Crim. P. 24.1(b). In that context, when it is shown that a jury received and considered extrinsic evidence, our supreme court has observed a "strong presumption that the verdict has been tainted." Hall, 204 Ariz. 442, ¶ 16 (quoting State v. Miller, 178 Ariz. 555, 557 (1994)). Unless the state proves beyond a reasonable doubt that the information did not impact the verdict, the only remedy is a new trial. Id. at 560. But Lopez cites no authority applying this rule to a motion for a mistrial made during trial, when a trial court has other tools at its disposal to cure any prejudice and prevent the error from tainting the verdict. See Jones, 197 Ariz. 290, ¶¶ 32-34. Indeed, applying the same rule before a jury reaches a verdict would be inconsistent with the deferential standard we apply to a court's denial of a mistrial and with a court's obligation to consider lesser remedies before declaring a mistrial. See Doty, 232 Ariz. 502, ¶ 17; Adamson, 136 Ariz. at 262.
¶12 Lopez asserts it is "clear" that the jury "received and considered extrinsic evidence," because the excused juror "stated that he was both biased and had shared the prejudicial extrinsic information that caused him to be biased with the rest of the jury." We disagree. Applying the proper standard for reviewing the denial of a motion for mistrial, Lopez has not demonstrated that the remaining jurors heard, much less considered, extrinsic evidence. See State v. Montano, 136 Ariz. 605, 606-07 (1983) (no mistrial required when court questioned remaining prospective jurors as to impartiality after one juror made prejudicial remark and was excused). Even if they did, Lopez offers no more than speculation that the jury might have been influenced by what it heard. See Williamson, 236 Ariz. 550, ¶ 29.
¶13 "Extrinsic evidence does not include a juror's pretrial beliefs or experiences." State v. Olague, 240 Ariz. 475, ¶ 21 (App. 2016). Jurors are expected to rely on their common sense, knowledge, and experience during deliberations, including expertise on particular subjects. State v. Aguilar, 169 Ariz. 180, 181-82 (App. 1991) (finding juror, who was a medical doctor, did not bring extrinsic evidence into jury room by sharing "his own experience and knowledge" with other jurors); see State v. Dickens, 187 Ariz. 1, 16 (1996) ("Like it or not, we acknowledge that jurors will raise such information in their deliberations."), abrogated in part on other grounds by State v. Ferrero, 229 Ariz. 239 (2012). Here, the juror indicated only that he had communicated something about his "past experience" to the other jurors. The note and the juror's comments suggest a reasonable possibility that the communication might have related to testimony from the state's expert witness. But whether it amounted to extrinsic evidence, rather than the juror's own pretrial beliefs, experience, and expertise, is unknown. Although the court gave both parties ample opportunity to question the jurors, neither party elected to ask what specific information the excused juror had communicated to the rest of the jury. Consequently, we are left with only the juror's statement that he had been sharing his "past experience" and speculation as to what that experience might have been. On this record, Lopez has failed to demonstrate that the jury heard extrinsic evidence. See State v. Diaz, 223 Ariz. 358, ¶ 13 (2010) ("We will not reverse a conviction based on speculation or unsupported inference.")
¶14 Further, the record belies any possibility that the rest of the jury considered the excused juror's "past experience" in reaching its verdict. The note expressed the jury's understanding that it must "separate the different cases and focus on the evidence presented in THIS CASE." Upon further examination by the trial court, the jurors unanimously affirmed their ability to rely solely on the evidence introduced at trial. The court also evaluated the jurors' demeanor and body language in concluding that they remained capable of following the instructions. The court was in the best position to make this evaluation. In addition, the jury apparently brought the matter to the court's attention not because they were taking the excused juror's past experience into consideration during their deliberations, but because they perceived an obligation not to do so.
¶15 Finally, even if the jury had received and considered some information it should not have heard, and even if that information might have otherwise influenced the jury, Lopez has not shown that the trial court's chosen remedy was inadequate to cure any error. The court excused the juror in question, appropriately instructed the remaining jurors concerning their duty, and thoroughly questioned them to ensure that the experiences of the excused juror would not impair their ability to decide the case based solely on the evidence. The court instructed the jury at the beginning of trial that it was prohibited "from receiving evidence not properly admitted at trial," and its final instructions directed the jury to "[d]etermine the facts only from the evidence produced in court." The court adequately confirmed that the information from the excused juror did not impair the remaining jurors' ability to follow the court's instructions. We presume jurors follow the instructions they are given. See State v. Newell, 212 Ariz. 389, ¶ 68 (2006). Under the facts before it, the court acted within its discretion to embrace a remedy short of mistrial.
Disposition
¶16 We affirm Lopez's conviction and sentence.