Garcia-Chicol v. State

• Decision Date: 16 April 2020
• Docket Number: No. CR-19-391,CR-19-391
• Citation: Garcia-Chicol v. State, 2020 Ark. 148, 597 S.W.3d 631 (Ark. 2020)
• Parties: Jose Rufino GARCIA-CHICOL, Appellant v. STATE of Arkansas, Appellant
• Court: Arkansas Supreme Court

2020 Ark. 148

597 S.W.3d 631

Jose Rufino GARCIA-CHICOL, Appellant

v.STATE of Arkansas, Appellant

No. CR-19-391

Supreme Court of Arkansas.

Opinion Delivered: April 16, 2020

Rehearing Denied May 28, 2020

Hancock Law Firm, by: Sharon Kiel, Little Rock, for appellant.

Leslie Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't Att'y Gen., for appellee.

SHAWN A. WOMACK, Associate Justice

Appellant Jose Rufino Garcia-Chicol, who was convicted of rape, appeals the circuit court's denial of his motion for mistrial. Additionally, he appeals the circuit court's decision to admit into evidence a translation of a letter he wrote in Spanish. He contends that this admission violated both Arkansas Rule of Evidence 1009 and his Sixth Amendment right to confrontation. We affirm.

I. Background

A jury convicted appellant of the rape of S.P., his stepdaughter, a minor who was less than fourteen years of age. Shortly before trial, while in the Benton County jail, appellant sent his wife a letter written in Spanish, which attempted to dissuade her from bringing his children to trial. Appellant's wife later turned the letter over to law enforcement. The letter, and a translation of the letter created by an Arkansas certified interpreter, were admitted into evidence at trial over appellant's objections.

During the penalty phase, instructions were given on the offense of rape and the lesser-included offense of attempted rape. The jury mistakenly signed both the rape and the attempted-rape verdict forms after the foreman asked the bailiff what to do with the unused attempted-rape form and being told by the bailiff to sign it. Appellant requested a mistrial based on the bailiff's communication with the jury. The State responded that any prejudice to appellant could be cured by polling the jurors individually about their verdict. The circuit court polled the jurors individually, and the result was unanimous—appellant had been found guilty of rape alone. As a result of the jurors’ unanimity, the circuit court denied the motion for mistrial and submitted a new verdict form to the jury to sign. The jury returned with a correctly signed form, finding appellant guilty of rape. Appellant was sentenced to life imprisonment. He timely filed his appeal.

II. Discussion

A. Bailiff's Communication with Jury

Appellant first argues that reversible error occurred when the jury returned a guilty verdict on both the charge of rape and the lesser-included charge of attempted rape. He claims the bailiff's response to the foreman's question interfered with the jury's deliberations and a mistrial was the only appropriate remedy.

A mistrial is an extreme and drastic remedy to be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial. McDaniel v. State , 2019 Ark. 56, at 2, 567 S.W.3d 847, 848. The decision whether to grant or deny a motion for mistrial lies within the sound discretion of the circuit court, and the exercise of that discretion should not be disturbed on appeal unless an abuse of discretion or manifest prejudice to the complaining party is shown. Green v. State , 2013 Ark. 497, at 26, 430 S.W.3d 729, 747.

During the jury's deliberations, the foreman of the jury asked the bailiff a question regarding the verdict forms, which resulted in the foreman mistakenly signing the forms for both rape and attempted rape. After sending the jury to lunch, the bailiff testified to his communication with the foreman:

PROSECUTOR : Mr. Monjure, while you were back with the jury and they were making their deliberations, did someone at some point come out to speak with you?

BAILIFF : Actually, they knocked on my door after, and said, "We've got a verdict."

PROSECUTOR : Okay. Did they—what else did they say to you?

BAILIFF : Just—they were all talking amongst themselves, and they asked about—the foreman—I don't know his last name—said, "What do we do—what about this paper?" And he kind of went—he said, "I signed this one," and that was the rape charge. Correct? I mean, it was rape and attempted rape; correct?

PROSECUTOR : Um-hmm.

BAILIFF : That was the rape charge. And, then, I don't know—I just kind of hesitated and just said, "Sign it."

PROSECUTOR : Okay. So he—he told you, "We have a verdict"?

BAILIFF : Yes.

PROSECUTOR : You opened the door.

BAILIFF : Yes.

PROSECUTOR : And, then, you—do you see a paper signed at that point in time?

BAILIFF : Yes.

PROSECUTOR : What paper do you see at that point in time?

BAILIFF : Well, honestly, I couldn't read it. But he said, you know, "We found him guilty of rape. I don't know what to do with this or what to do with the other form."

PROSECUTOR : Did you see the other form he said, "We don't know what to do with?"

BAILIFF : Yes.

PROSECUTOR : Okay. What was that form?

BAILIFF : Well, I couldn't read it. I just—what he verbally said.

PROSECUTOR : Just what he told you?

BAILIFF : Yes, ma'am.

PROSECUTOR : So what did he tell you verbally when he told you about that other form?

BAILIFF : He said this one, you know, was attempted rape.

PROSECUTOR : Okay. When you told him to sign it, did you tell him to sign it "guilty" or "not guilty?"

BAILIFF : No. I think—no, I just said, "I guess sign it." Yeah, something—

PROSECUTOR : So you did not tell him which way—

BAILIFF : No.

PROSECUTOR : —to sign it? And to your understanding, you did not—you did not even talk to him until after they formed the guilty verdict on the rape charge?

BAILIFF : Yes, ma'am.

PROSECUTOR : The greater offense?

BAILIFF : Correct.

Appellant argues that by counseling the foreman to sign the additional verdict form, the bailiff inserted himself into the jury's deliberation and prevented the circuit court from addressing their confusion. The circuit court is required to call the jury into open court to answer any question it may have. Ark. Code Ann. § 16-89-125(e) (Repl. 2005). Section 16-89-125(e) provides:

After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of or after notice to the counsel of the parties.

The provisions of subsection (e) are mandatory, in part, to ensure the jury is not misinformed regarding the law. Sanders v. State , 317 Ark. 328, 343, 878 S.W.2d 391, 400 (1994). Noncompliance with section 16-89-125(e) gives rise to a presumption of prejudice, and the State has the burden of overcoming that presumption. Tarry v. State , 289 Ark. 193, 197, 710 S.W.2d 202, 205 (1986). The State concedes that it had the burden of proving there was no prejudice.

We addressed bailiff misconduct under a set of similar facts in Williams v. State , 264 Ark. 77, 568 S.W.2d 30 (1978). In Williams , this court reversed the circuit court's order that denied the defendant's motion to set aside the verdict. The motion was based upon allegations that the bailiff had responded to the jury on a question of law. Specifically, one of the jurors came out and told the bailiff that they could not come to an agreement because one of the jurors was a friend of the key witness. When asked what could be done about it, the bailiff responded, "Well, it's too late to do anything about it now." After hearing testimony from the bailiff, the circuit court denied the motion to set aside.

In reversing the circuit court, this court relied on Ark. Stat. Ann. § 43-2139 (Repl. 1964), the former version of section 16-89-125(e). The Williams court held that the inquiry made by the foreman was a request for information on a point of law, and his failure to require the bailiff to conduct the jury into open court was contrary to the statute and constituted misconduct. 264 Ark. at 80, 568 S.W.2d at 31. The good intentions of the bailiff and the foreman were not enough to excuse noncompliance with the statute. Id. Williams is, however, distinguishable from the instant case. There, the foreman communicated with the bailiff while the jury was in the middle of deliberations, making it impossible for the circuit court to determine whether matters outside the record influenced the jury in reaching its verdict. In the case at bar, the bailiff testified that when he spoke with the foreman, the jury had already found appellant guilty of rape and had signed the rape verdict form. Therefore, the bailiff's instruction to the foreman to sign the additional form could not have infected the jury's deliberations.

The State avers that any prejudice to appellant was cured when the circuit court polled each member of the jury individually, and a new verdict form was submitted to it. Arkansas law permits the polling of jury members. Arkansas Code Annotated section 16-89-128 (Repl. 2005) provides that once a verdict has been reached, the jury may be polled at the request of either party. When polling jurors, the inquiry is limited to determining that the verdict is that of each juror and whether he or she was improperly influenced by outside information. Ashby v. State , 271 Ark. 239, 241, 607 S.W.2d 675, 676 (1980). At the State's suggestion, each juror was brought into the courtroom separately and asked the following four questions: (1) what was their verdict; (2) of what charge; (3) was the verdict unanimous; and (4) whether the juror was influenced by any outside source. Each juror answered "guilty," "rape," "yes," and "no" to the questions. Appellant argues that this polling of the jury was improper under Rule 606(b) of the Arkansas Rules of Evidence.

Rule 606(b) outlines the circumstances under which a juror may or may not be interviewed about the verdict. Specifically, Rule 606(b) states as follows:

(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's

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