State v. Blackhoop
| Decision Date | 23 June 1988 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 763 P.2d 536,158 Ariz. 472 |
| Parties | STATE of Arizona, Appellee, v. Brian BLACKHOOP, Appellant. 11721. |
| Court | Arizona Court of Appeals |
We must decide whether a procedure utilized by the trial judge to select alternate jurors, which resulted in the only two members of the jury who were of the same race as the defendant being named alternates, was improper.
The defendant, Brian Blackhoop, a native American, was charged by information with sexual assault, a class 2 felony, and criminal trespass, a class 6 felony. The defendant's jury trial resulted in him being found guilty as charged. He was sentenced to the presumptive terms of seven years imprisonment on the sexual assault conviction and one and one-half years imprisonment on the criminal trespass conviction, with both terms to run concurrently. The defendant has timely appealed.
The facts, taken in a light most favorable to sustaining the verdict, are as follows. On October 20, 1986, the defendant entered the victim's home and walked into her bedroom. He fondled the victim, who was still asleep. When the defendant put his penis into the victim's mouth, the victim woke up and ran from the bedroom. The victim's son, a friend of the defendant, found the defendant in his mother's bedroom getting dressed. When the victim phoned the police, the defendant ran from the victim's home. Shortly thereafter, the defendant was arrested and questioned by the police. At trial, the sole defense was on the basis of consent.
On appeal, the defendant raises the following issues:
(1) Did the trial judge err in denying the defendant's motion for judgment of acquittal?
(2) Did the trial court err in allowing the prosecution to use a peremptory strike of the only black juror in the venire panel?
(3) Did the trial court err in the selection of the two alternate jurors?
At the close of the state's case-in-chief, the defendant moved for a judgment of acquittal, contending that the state failed to prove all the elements of sexual assault. The trial judge tentatively agreed, claiming that there had been insufficient proof of actual contact, but nevertheless denied the motion based on his belief that the jury could infer actual contact from the evidence heard during the state's case-in-chief, coupled with evidence which would probably be presented during the defense. The defendant now maintains that Rule 20, Rules of Criminal Procedure, requires that if the trial court believes that the state has not proved all the elements of the offense beyond a reasonable doubt, the trial judge must grant a motion for judgment of acquittal. It is also contended that the trial court "reserved" decision on the directed verdict, contrary to Rule 20(a). The state maintains first, that any error on this issue was waived by defendant's failure to renew his motion for judgment of acquittal at the end of the trial, and second, that there was sufficient proof of oral sexual contact to deny the motion for judgment of acquittal.
During the state's case-in-chief, the victim testified only that the defendant had put "something" in her mouth. Upon the defendant's motion for judgment of acquittal, the trial court acknowledged that he felt that the state had not provided sufficient evidence of penetration. However, in denying the defense's motion, the trial court stated that the defendant would, of necessity, provide this element in presenting the defense of consent.
I don't think that the terminology used in describing Mr. Blackhoop's statements to the police are substantial enough at this point for the Court to find that there was actual physical penetration of the mouth by his penis.
However, since the defense in this case is consensual sexual contact, and since it has already been indicated to me both on and off the record that Mr. Blackhoop intends on testifying in his own behalf, I find it very difficult in giving a judgment of acquittal as to sexual assault and amending the charge to attempted sexual assault at this point in time, because I don't know what his testimony is going to be. And if it stays within the boundaries of what the police allege that his statements are going to be, based upon prior statements made to the police--for example, if he gets up here on the stand and says, yes, I placed it in her mouth, I am then in the position of sending it to the jury solely on the basis of whether he is guilty of sexual assault or not guilty of sexual assault, with no lesser and included charges....
This act of waiting for the defense to supply a necessary element of the state's case amounts to a "reservation" of decision on the motion for judgment of acquittal, which is clearly prohibited by Rule 20(a), even though the trial court formally denied the motion. See State v. Tucker, 26 Ariz.App. 376, 378, 548 P.2d 1188, 1190 (1976) (). Thus we agree that the trial court erred if, in fact, the state had failed to prove all the elements of the crime in its case-in-chief. Substantial evidence does not require, as defendant asserts, "proof beyond a reasonable doubt" but rather such proof "as reasonable minds could have concluded that defendant committed the crime." State v. LaGrand, 138 Ariz. 275, 280, 674 P.2d 338, 343 (App.1983). The record contains such evidence. In addition to testimony from the victim herself, Officer Roberts of the Phoenix Police Department testified that on the night of the incident, the victim told her that the defendant had put his penis in her mouth. Police Officer Polk, who questioned the defendant on the night of the offense, testified that the defendant admitted to him that the victim had performed oral sex on him. In light of the foregoing, we do not find that the defendant was entitled to a directed judgment for acquittal.
During its peremptory strikes, the state struck the only member of the jury panel who was black. The defense counsel called this situation to the attention of the trial judge and claimed error under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson stands for the proposition that, while a peremptory strike may usually be exercised with no explanation or cause, a violation of a criminal defendant's rights to equal protection occurs when the state systematically excludes members of the defendant's race from the jury. Batson, 476 U.S. at 94-98, 106 S.Ct. at 1722-23. Under Batson, the defendant has the burden of establishing a prima facie case that the state struck certain jurors solely on the basis of their race. Batson at 94-98, 106 S.Ct. at 1722-23. Once this prima facie showing has been met, the burden switches to the state to provide a racially-neutral explanation for its conduct. Batson at 96-98, 106 S.Ct. at 1723. In the present case, the trial court required the state to...
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...his motion at the close of all the evidence. We find no waiver. Rule 20 does not require renewal of the motion. See State v. Blackhoop, 158 Ariz. 472, 763 P.2d 536 (App.1988). 4 Rather, if the motion is denied following presentation of the state's case, the defendant must elect whether to r......
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State v. Ruelas
... ... SELECTION OF THE ALTERNATE JUROR ... Defendant argues that the trial judge erred in selecting the alternate juror because Rule 18.5, Arizona Rules of Criminal Procedure, requires that the "clerk" draw the alternate by lot. Defendant acknowledges that State v. Blackhoop, 158 Ariz. 472, 475, 763 P.2d 536, 539 (1988), recognized that in most cases technical error in the selection of the alternate does not require a new trial. Defendant states that he does not contend that the trial judge's selection of the alternate juror in this case demands a reversal, but that ... ...
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State v. Martinez
... ... Admittedly, Jurors 8 and 10 were not selected as alternates "by lot," as Rule 18.5(h) requires. However, technical errors in jury selection do not always require a new trial. See State v. Blackhoop, 158 Ariz. 472, 475, 763 P.2d 536, 539 (App.1988). Here, Juror 8's and Juror 10's initial designation as alternates was the product of the court being acutely sensitive to the Defendant's right to a fair and impartial jury rather than a result of the jurors' inability to serve. Accordingly, we do ... ...