State Of Ariz. v. Aguilar

• Decision Date: 07 May 2010
• Docket Number: 1 CA-CR 09-0385.,No. 1 CA-CR 09-0293,1 CA-CR 09-0293
• Citation: 224 Ariz. 299,230 P.3d 358
• Parties: STATE of Arizona, Appellee,v.Jesus Valdez AGUILAR, Appellant.State of Arizona, Appellee,v.Francisco Ibarra Norzagaray, Appellant.
• Court: Arizona Court of Appeals

224 Ariz. 299

230 P.3d 358

STATE of Arizona, Appellee,

v.Jesus Valdez AGUILAR, Appellant.

State of Arizona, Appellee,

v.Francisco Ibarra Norzagaray, Appellant.

Nos. 1 CA-CR 09-0293, 1 CA-CR 09-0385.

Court of Appeals of Arizona Division 1, Department B.

April 29, 2010.

As Corrected May 7, 2010.

Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Liza-Jane Capatos, Assistant Attorney General, Phoenix, Attorneys for Appellee.

The Hopkins Law Office, PC by Cedric Martin Hopkins, Tucson, Attorneys for Appellant Aguilar, James J. Haas, Maricopa County Public Defender By Thomas K. Baird, Deputy Public Defender, Phoenix, Attorneys for Appellant Norzagaray.

OPINION

NORRIS, Judge.

¶ 1 Although at the beginning of trial, the superior court admonished the jury to “not consult any source, such as ... the [I]nternet for information,” and then reminded the jury to observe the admonition throughout the trial, two jurors conducted Internet research on the legal definitions of terms in the court's final instructions, communicated their research to other jurors, and three additional jurors considered the research before joining the other jurors in unanimously convicting Jesus Valdez Aguilar and codefendant Francisco Ibarra Norzagaray (collectively, “Appellants of attempted first degree murder.¹ Because the State failed to prove beyond a reasonable doubt the jurors' misconduct in this case did not taint those verdicts, we reverse the superior court's denial of Appellants' motions for a new trial and remand for further proceedings.²

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Shortly after the court discharged the jury following the conclusion of Appellants' trial, the bailiff, in his normal duties, discovered “extraneous documents” in the notebook of the jury foreman. These documents consisted of printouts of one definition of first degree murder and three definitions of second degree murder, as obtained from three different Internet sources (the “Internet definitions”). See infra ¶¶ 21-23 and notes 5-7. The court informed the parties of the bailiff's discovery, and Appellants subsequently moved for new trial, arguing the jurors' use of this material deprived them of a fair trial.

¶ 3 The superior court held a series of evidentiary hearings in which counsel and the court questioned each juror as to his or her knowledge of and reliance on the Internet definitions during jury deliberations. Juror eight, the jury foreman, testified that after the first day of deliberations, he did a “Google” search at home on “first degree murder Arizona” (emphasis added), spending about one-half hour researching the issue. He printed the Internet definitions, brought them into the jury room, and discussed his research with other members of the jury. The foreman was not the only person who accessed the Internet to obtain definitions; so too did juror number nine, who acknowledged he had researched “premeditation” (unless otherwise noted, included in the “Internet definitions”). Jurors discussed and considered these Internet definitions during deliberations. See infra ¶¶ 26-28.

¶ 4 The superior court found the State had “defeated the presumption of prejudice by proving beyond a reasonable doubt that the [Internet definitions] considered by the jury ... did not taint the jury's verdicts,” and denied Appellants' motions. Appellants timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) sections 12-120.21 (2003), 13-4031 and -4033(A)(1) (2010).

DISCUSSION

¶ 5 On appeal, Appellants contend the State failed to prove beyond a reasonable doubt the introduction of the Internet definitions into jury deliberations did not contribute to the verdicts on attempted first degree murder, and thus the superior court should have granted their motions for a new trial. We agree.³

¶ 6 We will not reverse the superior court's decision to grant or deny a new trial based on alleged jury misconduct absent an abuse of discretion. State v. Hall, 204 Ariz. 442, 447, ¶ 16, 65 P.3d 90, 95 (2003). The superior court abuses its discretion when it misapplies the law or bases its decision on incorrect legal principles. State v. Jackson, 208 Ariz. 56, 59, ¶ 12, 90 P.3d 793, 796 (App.2004). Similarly, an abuse of discretion also occurs when a discretionary finding of fact is “not justified by, and clearly against, reason and evidence.” State v. Chapple, 135 Ariz. 281, 297 n. 18, 660 P.2d 1208, 1224 n. 18 (1983). A defendant is entitled to a new trial if it cannot be concluded beyond a reasonable doubt the extraneous information did not contribute to the verdict.⁴CF. HALL, 204 ARIz. at 447, ¶ 16, 65 p.3D AT 95 (extraneous evidence rather than extraneous legal definitions). Further, once a defendant shows the jury received and consulted extraneous information, prejudice must be presumed and a new trial must be granted unless the State proves beyond a reasonable doubt the information did not taint the verdict. Id.

¶ 7 In State v. Cornell, 173 Ariz. 599, 601, 845 P.2d 1094, 1096 (App.1992), we stated, “reference to outside sources, including dictionaries, usually has been found to be harmless error.” Nevertheless, in that case, we held a juror's use of a dictionary to review definitions of “aggravate” and “assault” contributed to the verdict and was, therefore, not harmless. Id. at 602, 845 P.2d at 1097. The juror in Cornell testified that reading the definitions was “like a light bulb going off in [my] head,” and “made my decision for me,” and changed his position from “hold-out” to siding with the remaining members of the jury. Id. at 600-01, 845 P.2d at 1095-96.

¶ 8 Despite Cornell and its discussion of Arizona case law, neither our supreme court nor this court has addressed in detail the factors a court should consider to determine whether the State has met its burden of proving, beyond a reasonable doubt, the extraneous legal definitions received and considered by the jury-here, the Internet definitions-did not taint the verdict. See State v. Holden, 88 Ariz. 43, 50, 352 P.2d 705, 710-11 (1960) (juror's reading of portions of “California Jury Instructions in Criminal Cases” to other jurors did not result in prejudice because it made her “more considerate and more fair to the defendant”); Lane v. Mathews, 74 Ariz. 201, 206, 245 P.2d 1025, 1028 (1952) rev'd on other grounds, 75 Ariz. 1, 251 P.2d 303 (1953) (without quoting words in question or explaining context, finding harmless error when jurors consulted dictionary in civil action); Cornell, 173 Ariz. 599, 845 P.2d 1094 (discussed supra ¶ 7).

¶ 9 Although the Cornell court focused on the divergence between the dictionary definitions and the jury instructions, 173 Ariz. at 602, 845 P.2d at 1097, other jurisdictions have considered additional factors in deciding this issue. See Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir.2000) (multifactor analysis to assess whether extrinsic evidence caused juror prejudice); Mayhue v. St. Francis Hosp. of Wichita, 969 F.2d 919, 924 (10th Cir.1992) (multifactor analysis to assess whether extrinsic legal definitions caused juror prejudice); see also McNeill v. Polk, 476 F.3d 206, 226-27 (4th Cir.2007) (no prejudice because extrajudicial definition of “mitigate” not incompatible with court's instruction, citing Mayhue); TIG Ins. Co. v. Liberty Mut. Ins. Co., 250 F.Supp.2d 1197, 1200 (D.Ariz.2003) (no persuasive evidence dictionary definition prejudiced jury, citing Mayhue); Steele v. State, 216 Ga.App. 276, 454 S.E.2d 590, 592-93 (1995) disapproved on other grounds, Kennebrew v. State, 267 Ga. 400, 480 S.E.2d 1 (1996) (extrajudicial definition of law held prejudicial because information not in accord with state law and referred to sentencing, a matter outside purview of jury); George L. Blum Prejudicial Effect of Juror Misconduct Arising from Internet Usage, 48 A.L.R.6th 135, 165-74, §§ 11-13 (2009) (citing cases); Jean E. Maess Prejudicial effect of jury's procurement or use of book during deliberations in criminal cases, 35 A.L.R.4th 626, 645-52, § 5 (1985 & Supp.2007) (citing cases).

¶ 10 Although Mayhue is a civil case, we find instructive its analysis of the factors a court should consider when jurors consult extraneous definitions. In Mayhue, following the verdict in a race discrimination case, the court's staff found a handwritten note in the jury room containing, inter alia, definitions of the words “discriminate” and “p[re]judice.” 969 F.2d at 921. The court affirmed the district court's finding of prejudice, after considering the following factors:

(1) The importance of the word or phrase being defined to the resolution of the case.

(2) The extent to which the dictionary definition differs from the jury instructions or from the proper legal definition.

(3) The extent to which the jury discussed and emphasized the definition.

(4) The strength of the evidence and whether the jury had difficulty reaching a verdict prior to introduction of the dictionary definition.

(5) Any other factors that relate to a determination of prejudice.

Id. at 924.

¶ 11 The factors identified in Mayhue are consistent with certain factors identified by our supreme court in determining whether extrinsic evidence contributed to a jury's verdict. Hall, 204 Ariz. at 448, ¶ 19, 65 P.3d at 96. In Hall, the jury convicted the defendant of felony murder, armed robbery, kidnapping, and theft. Id. at 445, ¶ 1, 65 P.3d at 93. To connect the defendant to the victim's disappearance and death, the State relied in part on “grainy” convenience store surveillance videos it argued showed the defendant attempting to use the victim's credit card. Id. at 446, ¶ 9, 65 P.3d at 94. After the bailiff told at least one juror the defendant had tattoos on his wrist, some jurors “methodically” looked for tattoos on the person in the videos during deliberations. Id. at 447, ¶ 13, 65 P.3d at 95. The...