State v. Arvallo

Decision Date11 June 2013
Docket NumberNo. 1 CA–CR 11–0193.,1 CA–CR 11–0193.
Citation232 Ariz. 200,303 P.3d 94
PartiesSTATE of Arizona, Appellee, v. Josef Alexander ARVALLO, Appellant.
CourtArizona Court of Appeals


Thomas C. Horne, Arizona Attorney General by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section and Craig W. Soland, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Droban & Company, PC by Kerrie M. Droban, Anthem, Attorneys for Appellant.


SWANN, Judge.

[232 Ariz. 201]¶ 1 Defendant, Josef Alexander Arvallo, appeals from his convictions on two counts of first degree murder, each a Class 1 dangerous offense; two counts of attempted armed robbery, each a Class 3 dangerous offense; and two counts of kidnapping, each a Class 2 dangerous offense. We conclude that the trial court properly denied Defendant's motions for mistrial and new trial, and therefore affirm.

¶ 2 The offenses arise from an incident that occurred at a carwash in north Phoenix on March 6, 2007, when Defendant shot and killed two young men during a “planned faked robbery” of a drug deal that Defendant engineered with his friend, Tomas Rodriguez.1

¶ 3 A jury found Defendant guilty of all of the offenses as charged. The trial court sentenced Defendant to natural life on each of the first degree murder counts, to be served consecutively; concurrent, presumptive sentences of 11.25 years on each of the attempted armed robbery counts; and concurrent, presumptive sentences of 15.75 years on each of the kidnapping counts.

¶ 4 Defendant timely appeals. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033.

¶ 5 On appeal, Defendant argues that the trial court abused its discretion when it denied his motions for: (1) mistrial based on a jury question; (2) mistrial based on prosecutorial misconduct; and (3) a new trial based on the state's failure to disclose Brady material. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). For reasons set forth below, we affirm.


¶ 6 We review a trial court's denial of a motion for mistrial for an abuse of discretion. State v. Jones, 197 Ariz. 290, 304, ¶ 32, 4 P.3d 345, 359 (2000). A trial court's discretion in such matters is broad because the trial court “is in the best position to determine whether the evidence will actually affect the outcome of the trial.” Id. Therefore, its decision will be overturned on appeal “only if it [is] ‘palpably improper and clearly injurious.’ State v. Murray, 184 Ariz. 9, 35, 906 P.2d 542, 568 (1995) (citation omitted). “A declaration of a mistrial is a most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted.” Id. (citation omitted).

¶ 7 “A denial of a motion for new trial will be reversed only when there is an affirmative showing that the trial court abused its discretion and acted arbitrarily.” State v. Mincey, 141 Ariz. 425, 432, 687 P.2d 1180, 1187 (1984). An abuse of discretion occurs when “the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice.” State v. Chapple, 135 Ariz. 281, 297 n. 18, 660 P.2d 1208, 1224 n. 18 (1983).


¶ 8 The cases are legion that a defendant is entitled to a fair, impartial and unbiased jury.” State v. Rojas, 177 Ariz. 454, 457, 868 P.2d 1037, 1040 (App.1993). [J]uror misconduct warrants a new trial if the defendant shows actual prejudice or if prejudice may be fairly presumed from the facts. State v. Eastlack, 180 Ariz. 243, 256, 883 P.2d 999, 1012 (1994) (citation omitted). Even a juror who expresses an opinion about the guilt or innocence of a defendant before a trial is completed may nevertheless continue to hear the case as long as that juror keeps an open mind and retains a willingness to alter the opinion after hearing all of the evidence. Rojas, 177 Ariz. at 458, 868 P.2d at 1041.

¶ 9 Katie, the person who set up and participated in the drug deal, was granted immunity by the state and testified at trial as an eyewitness to the shooting. In her testimony, she acknowledged that she had lied to detectives when she was initially interviewed, but asserted that she had subsequently told them the truth about the shooting in a second interview that she initiated with the police.

¶ 10 During cross-examination, defense counsel reviewed with Katie, at length and in detail, the terms of her immunity agreement and the numerous lies she had told the detectives during her first interview. In response to the questions about why she lied, Katie repeatedly testified that she felt her life and her family were in danger because Tomas Rodriguez had threatened her. To rehabilitate the witness on redirect, the prosecutor asked Katie to explain why she had initially lied to police. Katie stated that Tomas had told her that, if she “said anything to anyone, he'd come after me and my family,” and she had believed him because she had “watched two of his people kill two of my friends.” Katie also testified that, while she had initially been worried about having her name and address appear in police reports, she had ultimately made the choice to come forward and tell the truth.

¶ 11 At the end of Katie's testimony, Juror 10 submitted the following question:

This is disturbing. A lot of us are concerned about anonymity. Are our identities as jurors public record? Will the defendant's family, etcetera [sic], friends have access to our information? Who exactly has our information?

Thank you, your honor.

We would prefer if you not discuss this in front of the defendant or any of his family and friends.

The trial court informed counsel at a sidebar that its usual response to such a question was [t]hat the jury list is sealed, never to be reopened, except by order of the court.” Defense counsel was not satisfied with this solution, noting that she had concerns on several levels because the note implied not only that the jurors had concerns for their personal safety, but also that they were discussing those concerns amongst themselves. The trial court then dismissed the jurors for the day, counsel moved for a mistrial, and the court set a hearing on the motion for the next morning.

¶ 12 The next morning, after considering supplemental briefing and hearing additional argument from both counsel, the trial court called the entire jury into the courtroom to question the jurors about the note. The court did not read the actual note to the jurors but stated that we are concerned with a note we [have] received from a juror, apparently expressing personal safety concerns, and the note specifically say[s], a lot of us are concerned.” The trial court also explained that it could not “accede to the request in the note not to discuss the [matter] with all parties present,” as “that would, in itself, create a mistrial” because [a]ll must be present and hear the entire proceeding we are having.” The court then informed the jurors that jury lists were sealed by statute and not available to the public. It added that the jurors' identities were protected and they were known only by number for the present proceedings, the jury commissioner could not dispense anyone's personal information without a court order, and the biographical information used by the attorneys during jury selection had already been shredded.

¶ 13 The court next asked the jurors a series of questions, including whether there was anyone who could no longer be fair and impartial, whether anyone could no longer apply the instructions given them (“especially the presumption of innocence instruction”), and whether anyone had any concerns and needed to meet with the court and parties individually. The court also specifically asked the jurors whether they had discussed any of the facts of the case. After receiving no positive answers to any of these questions, the trial court instructed the jurors that they were to return to the jury room for five minutes “to write whatever you want on any note. It's just crucial that you remain fair and impartial.” After the appropriate time had elapsed, the trial court had not received any additional notes or comments. It therefore denied Defendant's motion for mistrial and the proceedings resumed.

¶ 14 On appeal, Defendant contends that the juror's “collective note” demonstrates the jurors could not be fair and impartial; that the trial court's “perfunctory voir dire of the panel regarding their safety concerns ... did nothing to [persuade the jury] that [Defendant] was no threat”; and that the trial court's “insistence” that Defendant had a right to be present at every proceeding precluded the possibility that any juror would “speak up” about their concerns when they had already informed the court that they did not wish Defendant to be present. Defendant also contends that the trial court's questioning did not “unring the bell” that Defendant was “an imposing, terrifying figure,” and that the court therefore erred in denying a mistrial.

¶ 15 Defendant argues that we must presume from the juror's question, in particular its use of the terms we and us,” that the jurors were biased against Defendant because of their fear of him and that the trial court's actions in this case did nothing to remedy that situation. We disagree.

¶ 16 First, there is no indication in the record that Juror 10 actually communicated his or her concerns to the other jurors or that any jurors discussed the issue of their safety. The fact that Juror 10 couched the question to the court in terms of we and us may simply have been a stylistic choice and an empathic generalization of his or her own personal concerns. But even assuming there was a discussion of the issue among some members of the jury, a mistrial was not warranted.

¶ 17 Here, the trial court did not identify Juror 10 as the author of the note to...

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18 cases
  • State v. Williams
    • United States
    • Arizona Court of Appeals
    • 27 Noviembre 2015
    ...the state warrants a new trial only if it "'substantially undermine[s] testimony that was of critical significance at trial.'" State v. Arvallo, 232 Ariz. 200, ¶ 36, 303 P.3d 94, 100 (App. 2013), quoting State v. Orantez, 183 Ariz. 218, 221, 902 P.2d 824, 827 (1995). M.F. heard the SUV cras......
  • State v. Williams
    • United States
    • Arizona Court of Appeals
    • 25 Septiembre 2015
    ...the state warrants a new trial only if it "'substantially undermine[s] testimony that was of critical significance at trial.'" State v. Arvallo, 232 Ariz. 200, ¶ 36, 303 P.3d 94, 100 (App. 2013), quoting State v. Orantez, 183 Ariz. 218, 221, 902 P.2d 824, 827 (1995). M.F. heard the SUV cras......
  • State v. Smith
    • United States
    • Arizona Court of Appeals
    • 17 Junio 2014
    ...a new trial, impeachment evidence must 'substantially undermine[] testimony that was of critical significance at trial.'" State v. Arvallo, 232 Ariz. 200, 206, ¶ 36, 303 P.3d 94, 100 (App. 2013) (alteration in original) (quoting State v. Orantez, 183 Ariz. 218, 221, 902 P.2d 824, 827 (1995)......
  • State v. Greer
    • United States
    • Arizona Court of Appeals
    • 13 Abril 2020 not discuss the case automatically disqualifies a juror or jury. See State v. Trostle, 191 Ariz. 4, 13-14 (1997); see also State v. Arvallo, 232 Ariz. 200, ¶ 8 (App. 2013) (explaining that juror who expresses opinion about defendant's guilt or innocence prior to close of evidence before ......
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