State v. McCrimmon
| Decision Date | 19 November 1996 |
| Docket Number | CR-94-0270-AP,Nos. CR-94-0121-A,s. CR-94-0121-A |
| Citation | 187 Ariz. 169,927 P.2d 1298 |
| Parties | , 230 Ariz. Adv. Rep. 3 STATE of Arizona, Appellee. v. Christopher D. McCRIMMON, Appellant. STATE of Arizona, Appellee, v. Andre Lamont MINNITT, Appellant. |
| Court | Arizona Supreme Court |
This is a capital case in which we review the convictions of defendants Andre Lamont Minnitt and Christopher Don McCrimmon, who were tried together and convicted of three counts of first degree murder and seven additional counts of armed robbery, aggravated robbery, and burglary. Because defendants were sentenced to death on the murder counts, appeal is automatic. Ariz. R.Crim. P. 31.2(b). We have jurisdiction pursuant toA.R.S. §§ 13-4031 and 13-4033. Because one of the issues common to both appeals is dispositive, we issue a joint opinion resolving both cases. We reverse.
The trial of this case lasted sixteen days before being submitted to the jury. The jury deliberated just over six hours on Wednesday, November 24, before being excused for the Thanksgiving weekend. Upon returning on Monday, the jury deliberated approximately two-and-a-half hours before announcing that it had reached a verdict.
After the trial judge read the guilty verdicts, he proceeded to poll the jury, beginning with Juror No. 1. Upon being asked "are these your verdicts ... and are these your findings of allegation of dangerous nature?" Juror No. 1 responded "I guess, yeah." Without further comment, the judge proceeded to poll all the other members of the jury. After the other jurors had been polled and all had responded affirmatively that the verdicts were theirs, the judge conferred with counsel at the bench concerning Juror No. 1's response. At this point, Minnitt's lawyer moved for a mistrial on the basis that the jury was not unanimous and should be discharged. Although the record is not perfectly clear, we believe a fair reading of it shows that McCrimmon's lawyer joined in the motion. The judge denied the motions and, instead, instructed Juror No. 1 as follows: 1
The Court: [Juror No. 1], to the question: "Are these your verdicts and findings of dangerous nature", the law requires that I obtain either a yes answer or a no answer from you.
[Juror No. 1]: I don't know what to say.
As soon as the jurors left the courtroom, counsel for both defendants again moved for a mistrial. McCrimmon's lawyer argued that it was clear there was not a unanimous verdict and noted that Juror No. 1 was obviously upset. Minnitt's lawyer joined in the motion, stressing the juror's indecision. The judge then ordered a recess of "15, 20 minutes."
A proceeding was then held in chambers at which the trial judge told counsel that Juror No. 1 had told the bailiff she wanted to talk with the judge in private. The record does not show that the defendants were present, although the trial record regularly showed their presence when they were present. The state and counsel for both defendants consented to the private meeting and defense counsel purported to waive the right of defendants to be present at the meeting, but McCrimmon's lawyer again moved for a mistrial.
At the private meeting between the judge and Juror No. 1, a court reporter was present. The juror first reiterated her indecisiveness, whereupon the judge asked her what her response would be to another polling:
The Court: We plan to go back into the courtroom and I would ask you the same question for the third time.
Juror: Uh-huh.
The Court: And what will your answer be?
Juror: Well it would have to be yes.
The Court: And that is based on proof beyond a reasonable doubt?
Juror: You see, that's the part--that's the part that got to me.
When the judge, after further discussion, again asked the juror what her response to the poll would be, she said that her response would be "I can't say yes and I can't say no."
Following the meeting with the juror, the judge held another meeting with counsel in chambers. There is no indication that the defendants were present. The record is devoid of even a purported waiver of defendants' presence at this meeting, yet during the meeting the following events occurred: 1) the judge heard and denied renewed motions for mistrial; 2) the judge indicated, over defense objections, his intention to bring the jury back after lunch and order them to continue deliberations; and 3) the judge and counsel discussed the possibility of further jury instructions.
After lunch the judge met again with counsel without the defendants being present. Once again, no waiver of their presence was obtained from the defendants themselves or even from their counsel. At that meeting, the court reporter read the notes of the judge's private meeting with Juror No. 1, and the judge ruled on additional jury instructions to be given. The judge then reconvened the jury and, in the presence of the defendants, gave two additional instructions which the judge had decided upon in the absence of the defendants. 2
The jury deliberated for about two hours before returning guilty verdicts on all counts. When the jury was polled on this occasion, each juror, including Juror No. 1, affirmatively responded that these were their individual verdicts. McCrimmon's lawyer renewed her motion for mistrial. The motion was denied.
Following the verdict, both defendants filed motions for new trials, arguing that the verdict was the result of coercion. The trial judge denied the motions, but accepted an offer of proof to the effect that Juror No. 1 "indicated that she still had some doubt and she was very concerned that there was no physical evidence to tie Mr. Minnitt to the crime in El Grande Market." These appeals followed.
Whether a new trial is required by reason of juror coercion.
Defendants each raise serious questions concerning the proceedings held in their absence and, arguably, without their consent. Because we must remand for a new trial on the issue of juror coercion, we do not decide whether defendants would also be entitled to a new trial on this separate ground. We remind counsel and trial courts, however, that proceedings in criminal cases held outside the defendant's presence are fraught with danger and should be conducted, if at all, only for valid reasons and only where the record clearly shows that the defendant has waived his right to be present.
The state did not challenge the timeliness of the post-verdict motions raising coercion in the trial court, but does challenge the timeliness of one of those motions here. If the motions were untimely, the trial court had no jurisdiction to entertain them on the merits. See State v. Hickle, 133 Ariz. 234, 239, 650 P.2d 1216, 1221 (1982); State v. Hill, 85 Ariz. 49, 53-54, 330 P.2d 1088, 1090-91 (1958). We do not reach the issue of timeliness of the post-trial motions, because a fair reading of the record indicates that counsel for both defendants did, at trial and in a timely fashion, request mistrials based upon the juror's failure to affirm the verdicts and the events flowing therefrom. In any event, in State v. Lautzenheiser, 180 Ariz. 7, 881 P.2d 339 (1994), we held that it is fundamental error "whenever a judge improperly influences or coerces a verdict." Id. at 10, 881 P.2d at 342. Therefore, a finding of coerciveness would support a finding of fundamental error. However, as we have pointed out, in this case counsel adequately preserved the issue of coercion through their motions for mistrial. Accordingly, we review the trial court's denial of the motions for mistrial for clear abuse of discretion. State v. Murray, 184 Ariz. 9, 35, 906 P.2d 542, 568 (1995), cert. denied,--- U.S. ----, 116 S.Ct. 2535, 135 L.Ed.2d 1057 (1996); State v. Stuard, 176 Ariz. 589, 601, 863 P.2d 881, 893 (1993).
"The test of coerciveness is whether the trial court's actions or remarks, viewed in the totality of circumstances, displaced the independent judgment of the jurors." State v. McCutcheon, 150 Ariz. 317, 320, 723 P.2d 666, 669 (1986); see Lautzenheiser, 180 Ariz. at 9, 881 P.2d at 341; State v. Roberts, 131 Ariz. 513, 515-16, 642 P.2d 858, 860-61 (1982).
The trial court continued to poll the remaining jurors after Juror No. 1 had failed to affirm the verdict. 3 The Eleventh Circuit has established a per se rule of reversible error when a trial court continues polling the jury once a juror has failed to indicate agreement with the verdict. United States v. Spitz, 696 F.2d 916, 916-17 (11th Cir.1983). Spitz relied on the United States Supreme Court case of Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926), which did not involve polling but did condemn inquiry into the numerical division of the jury during deliberations. According to the Brasfield Court:
[T]he inquiry [into numerical division] itself should be regarded as a ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate...
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