Opinion
No. 2 CA-CR 2013-0075
01-24-2014
THE STATE OF ARIZONA, Appellee, v. DONALD BRIAN SMITH, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Adele Ponce, Assistant Attorney General, Phoenix Counsel for Appellee Lori J. Lefferts, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20120611001
The Honorable Howard Hantman, Judge
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Adele Ponce, Assistant Attorney General, Phoenix
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Judge Vásquez and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Following a jury trial, Donald Smith was convicted of one count of possession of a dangerous drug and one count of possession of drug paraphernalia and sentenced to eighteen months' probation. On appeal, he contends the trial court erred when it ordered the jury to resume deliberations after the foreperson indicated the jurors were deadlocked. For the following reasons, we affirm Smith's convictions and sentences.
Factual and Procedural Background
¶2 In February 2012, Smith was riding his bicycle at approximately 1:00 a.m. when he was stopped by a police officer for committing a traffic violation. As he dismounted from the bicycle, Smith dropped a matchbox that was later determined to contain methamphetamine.
¶3 The case was submitted to the jury at approximately 3:00 p.m. on the second day of trial and, around 4:30 p.m., the trial court reconvened the proceedings outside the presence of the jury. The court informed the parties, "I'm told [the jury is] hung 7 to 1. I don't know which way. I plan to bring them in." After some discussion with counsel, the court brought the jury into the courtroom and instructed them to resume deliberations the following day. After deliberating for an additional fifty minutes the next day, the jury returned a guilty verdict on each count.
The transcript reads:
THE COURT: What's the State's position, any?
[STATE'S ATTY.]: No, Judge.
THE COURT: Your position?
[SMITH'S ATTY.]: No position.
THE COURT: Try this again?
[STATE'S ATTY.]: Yes.
THE COURT: Well, I'm inclined to—over their objection, have them come back tomorrow morning. We invested too much. Juror time. Our time. Court time. I mean, they haven't deliberated. They left at what, 3:15? Bring them in.
¶4 Following his conviction, Smith filed a motion for a new trial, arguing the trial court "erred as a matter of law . . . when it asked the jury to return the next day and reach a verdict." That motion was denied and Smith filed a timely appeal. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031 and 13-4033(A).
Discussion
¶1 Because the decision to discharge a jury is within the sound discretion of the trial court, "[m]erely advising a deadlocked jury to continue deliberations does not, standing alone, constitute coercion or improper conduct" on the part of the court. State v. Webb, 164 Ariz. 348, 358, 793 P.2d 105, 115 (App. 1990); see also Ariz. R. Crim. P. 22.5(b) (jury must be discharged "when . . . [u]pon expiration of such time as the court deems proper, it appears that there is no reasonable probability that the jurors can agree upon a verdict"). Rather, jury coercion occurs when "the trial court's actions or remarks, viewed in the totality of [the] circumstances, displaced the independent judgment of the jurors." State v. McCutcheon, 150 Ariz. 317, 320, 723 P.2d 666, 669 (1986) (McCutcheon I). A defendant's conviction will be reversed on this ground when "the cumulative effect of the trial court's actions had a coercive influence upon the jury." State v. Roberts, 131 Ariz. 513, 515, 642 P.2d 858, 860 (1982). We review the denial of Smith's motion for a new trial for an abuse of discretion.
The state urges us to review solely for fundamental error, claiming Smith waived any objection to the court's instruction when he failed to raise it below. However, we find the objection interposed by Smith's counsel after the trial court directed the jury to resume deliberations was sufficient to preserve the objections he raises on appeal. See State v. McCutcheon, 162 Ariz. 54, 60, 781 P.2d 31, 37 (1989) (McCutcheon II) (suggesting objection interposed prior to resumption of deliberations allows court to cure potentially coercive conduct).
¶2 As Smith notes, Arizona courts have focused on several factors when determining whether a trial court's actions or remarks were coercive, including the court's knowledge of the numerical split among the jury, the identification of a holdout juror, the foreperson's indication that additional deliberations would not be helpful and the presence or absence of a cautionary instruction. On appeal, he argues that each of these considerations weighs in favor of reversal. While we agree that the first and third factors may provide some support for Smith's argument, we nevertheless decline to find that their cumulative effect warrants reversal.
See State v. McCrimmon, 187 Ariz. 169, 172-73, 927 P.2d 1298, 1301-02 (1996); McCutcheon I, 150 Ariz. at 320, 723 P.2d at 669; State v. Roberts, 131 Ariz. 513, 515-16, 642 P.2d 858, 860-61 (1982).
See McCrimmon, 187 Ariz. at 173, 927 P.2d at 1302; State v. Lautzenheiser, 180 Ariz. 7, 9-10, 881 P.2d 339, 341-42 (1994).
See Lautzenheiser, 180 Ariz. at 10, 881 P.2d at 342; State v. Sabala, 189 Ariz. 416, 420, 943 P.2d 776, 780 (App. 1997).
See Lautzenheiser, 180 Ariz. at 10, 881 P.2d at 342; Sabala, 189 Ariz. at 420-21, 943 P.2d at 780-81; State v. Dunlap, 187 Ariz. 441, 465, 930 P.2d 518, 542 (App. 1996).
¶3 First, Smith emphasizes the court's awareness of the numerical division among the jurors, citing McCutcheon I for the proposition that such knowledge creates a likelihood of coercion. He contends that here, as in that case, the court's direction to the jury to continue deliberating "'create[d] in the jury the impression that the court, which ha[d] also heard the testimony in the case, agree[d] with the majority of jurors.'" McCutcheon I, 150 Ariz. at 320, 723 P.2d at 669, quoting People v. Carter, 442 P.2d 353, 358 (Cal. 1968).
¶4 In response, the state acknowledges that a trial court's awareness of the numerical division can, "in some circumstances, give jurors the impression that the court agrees with the majority," but maintains this fact is not determinative. It also contends the court did not know the direction of the split and therefore its instruction to resume deliberations could not have been perceived as an endorsement of one verdict over another. Finally, the state emphasizes that the court did not solicit this information but, rather, came by it inadvertently.
¶5 As an initial matter, we are not persuaded that the trial court was unaware of the direction of the split. While the court was instructing the jury to resume deliberations, the foreman stated that "[t]he person that doesn't agree said he didn't get information that he needed." The only verdict that properly results from an insufficiency of "information" is acquittal. Therefore, although we agree with the state that this expression of the majority view was not as "obvious[]" as it could have been, we find that it was nevertheless adequate to convey to the court that the holdout juror opposed conviction. And, more significantly, it was sufficient to give the jury the impression that the court knew which way they were leaning.
This information was revealed over the court's objection; after the foreman asked permission to speak, the court stated three times that it "[didn't] want to know" anything about the jury's deliberations.
¶6 We are likewise unpersuaded by the state's emphasis on the inadvertence of the jury's disclosures. While it is true that a trial court's solicitation of such information can enhance the coercive effect of a subsequent instruction to resume deliberation, it does not follow that any unsolicited knowledge of the jurors' numerical division is harmless. See McCutcheon I, 150 Ariz. at 320, 723 P.2d at 669 (finding coercion where trial judge inadvertently discovered two holdout jurors favored acquittal). A holdout juror may perceive the court as endorsing a particular verdict even when the court's knowledge of the numerical division and nature of the split was acquired inadvertently. See id.
The state maintains there is no basis to believe the jurors "were even aware that the court knew about the 7-1 division when it told jurors they should continue deliberations." However, the record does not necessarily support an inference that the jurors were unaware that the numerical split had been communicated to court personnel.
¶7 Although the court's knowledge of the jurors' numerical division might favor a finding of coercion, we conclude this factor carries little weight here based on the order in which events unfolded at trial. See Sabala, 189 Ariz. at 420, 943 P.2d at 780 (considering "sequence and timing of events" in connection with coercion analysis). Specifically, it was not until after the court had directed the jurors to return the following day and had asked them what time they would like to come back that the foreperson made statements indicating the direction of the split. The jurors could not have interpreted the court's directive as an "inference that [it] agreed with the majority," McCutcheon I, 150 Ariz. at 320, 723 P.2d at 669, because the court did not, at the time the instruction was given, know how the 7-1 majority viewed the evidence. Thus, while the court's awareness of the jurors' voting composition might generally weigh in Smith's favor, we find the coercive impact of this factor was minimal.
¶8 Citing State v. Lautzenheiser, 180 Ariz. 7, 881 P.2d 339 (1994), Smith next argues the coercive effect of the trial court's directive to the jury was exacerbated when "the lone holdout juror was singled out in open court." However, as the state notes, Smith appears to have conflated "awareness of a lopsided split" with "knowing the identity of the holdout." Indeed, Lautzenheiser involved the polling of jurors in open court. 180 Ariz. at 8-9, 881 P.2d at 340-41. Here, while the existence of a holdout juror was divulged by the foreperson, the identity of that juror was not.
¶9 Smith attempts to minimize this distinction by arguing that "the holdout's identity was certainly known to the other jurors." But unless the foreperson has employed some form of anonymous polling, any jury facing deadlock will know the identities of its dissenting members. In Lautzenheiser, pressure was imposed upon a dissenting juror outside the confines of the jury room, in the presence of both the trial court and counsel for both parties. 180 Ariz. at 9-10, 881 P.2d at 341-42. Here, the foreperson used masculine pronouns to refer to the holdout juror, but did not identify him. Accordingly, the only pressure he faced was "the inherent pressure associated with being a lone dissenter." Sabala, 189 Ariz. at 419, 943 P.2d at 779. And we have held that such pressure, without more, does not amount to coercion. See id.
There were three men on the jury.
¶10 Next, Smith contends the trial court's conduct was coercive because the jury foreman expressed his view that additional deliberations would not be helpful. On several occasions, our supreme court has relied on such skepticism from jurors in finding a guilty verdict coerced. See Lautzenheiser, 180 Ariz. at 10, 881 P.2d at 342 (finding coercion where jury foreman believed no verdict could be reached); McCutcheon I, 150 Ariz. at 319, 723 P.2d at 668 (coercion found where jury foreman repeatedly stated, and jury unanimously asserted, verdict could not be reached); but see State v. McCutcheon, 162 Ariz. 54, 59-60, 781 P.2d 31, 36-37 (1989) (McCutcheon II) (finding no coercion even though jury viewed division as "unresolvable" and stated that "no further discussion will be fruitful"); Roberts, 131 Ariz. at 515, 642 P.2d at 860 (no coercion where foreman indicated jury "hopelessly deadlocked" and "cannot come to a unanimous decision").
¶11 As the state points out, however, Smith has overlooked a key point that distinguishes this case from both Lautzenheiser and McCutcheon I. Here, before the foreman stated that further deliberations would not "solve the problem," another juror had indicated that deliberations should continue. The existence of this conflicting view, which was shared with the court first, ameliorated the risk that the court's action would be viewed as an intent to override the jury's independent judgment regarding either the likelihood of a verdict or the verdict itself.
¶12 Smith further maintains the trial court engaged in coercion by failing to administer an accompanying cautionary instruction and making repeated references to the time that had already been invested by the court and the parties. However, as Smith recognizes, the court also instructed the jurors to make "some attempt, if you can, without violating your oaths, to reach a verdict." Although this reference to the jurors' independent duties was perhaps imprudently juxtaposed with an entreaty for further attempts to reach a verdict, we find it nevertheless conveyed the message that the jurors should not agree to a verdict that was inconsistent with their honestly-held beliefs. And the court's use of qualifying language made it clear that it was concerned about the short duration of the jury's deliberations, not the outcome. Compare Roberts, 131 Ariz. at 516, 642 P.2d at 861 (no coercive effect where court instructed jury to "give it a while longer and see if you can't reach a verdict"), with Pfeiffer v. State, 35 Ariz. 321, 332-34, 278 P. 63, 67-68 (1929) (judge's statement that he would give jury "plenty of time" to reach verdict and would "stay here all the rest of this week if necessary" amounted to coercion). Moreover, as soon as the dissenting juror was mentioned, the court made clear that it "didn't want to get involved with communication from the jury" and did not want to know about the deliberations. The court's obvious avoidance of this type of information only added to the overall impression that its decision to continue deliberations was not based on any desire to affect the verdict but, rather, solely on an unwillingness to declare a hung jury so quickly. We therefore find that while the absence of a discrete cautionary instruction favors Smith, it carries less weight under the circumstances present here.
In addition to referring to the jurors' oaths, the judge also stated several times that if they could not reach a verdict the following day, they would be excused, and stressed that he was not "going to do anything except request [the jury] come back tomorrow morning."
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¶13 Finally, Smith argues the brief duration of the trial itself favors a finding of coercion. The only authority he cites for this principle is a dissenting opinion in Sabala, 189 Ariz. at 422, 943 P.2d at 782 (Noyes, J., dissenting). But the majority in that case clearly stated "the brevity of the trial should not be a significant factor" in the coercion analysis. Sabala, 189 Ariz. at 421, 943 P.2d at 781. Accordingly, we decline to consider this factor. Cf. State v. Moody, 208 Ariz. 424, ¶¶ 203-04, 94 P.3d 1119, 1164 (2004) (declining to adopt new rule based solely on principle stated in dissenting opinion).
¶14 In light of the foregoing circumstances, and mindful of the discretion afforded trial courts under Ariz. R. Crim. P. 22.5, we conclude the court's statements did not displace the jurors' independent judgment. See McCutcheon I, 150 Ariz. at 319-20, 723 P.2d at 668-69. We reiterate, however, our supreme court's admonition that trial courts "exercise extreme caution and discretion in their comments to juries when ordering further deliberations after the jury has reported a deadlock." McCutcheon II, 162 Ariz. at 60, 781 P.2d at 37. It is the trial court's responsibility to ensure that any such comments are free from coercive implications. The best methods for doing so are, first, the exclusive use of instructions settled in advance with counsel for both parties and, second, the administration of a cautionary instruction to jurors not to surrender their honestly held beliefs. See McCutcheon II, 162 Ariz. at 60, 781 P.2d at 37. In order to prevent the spontaneous disclosure of information regarding the nature of a jury's split, it is also advisable to instruct the jurors to refrain from revealing such details before they begin their deliberations.
Conclusion
¶15 For the foregoing reasons, Smith's convictions and sentences are affirmed.