State v. Carter

• Decision Date: 20 August 2013
• Docket Number: 2 CA-CR 2012-0182
• Parties: THE STATE OF ARIZONA, Appellee, v. JARRETT CHESYLE CARTER, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. JARRETT CHESYLE CARTER, Appellant.

2 CA-CR 2012-0182

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT A

FILED: August 20, 2013

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

Not for Publication Rule 111, Rules of the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20103122001

Honorable Paul E. Tang, Judge

AFFIRMED IN PART; VACATED IN PART

Thomas C. Horne, Arizona Attorney General

By Joseph T. Maziarz and Nicholas Klingerman

Tucson

Attorneys for Appellee

Lori J. Lefferts, Pima County Public Defender

By Michael J. Miller

Tucson

Attorneys for Appellant

MILLER, Judge.

¶1 Jarrett Carter was convicted after a jury trial on one count of first degree murder and two counts of attempted armed robbery. Carter argues juror misconductrequires a new trial and, alternatively, all sentences should have run concurrently. He also argues the attempted armed robbery charges were duplicitous and Arizona's felony murder statute is unconstitutional. Finding no error, we affirm the convictions and sentences, but vacate the criminal restitution order.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to sustaining the jury's verdict. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In August 2010, Carter accompanied Mario Acedo to sell marijuana to victim C.V. C.V. and his passenger, C.M., drove to the meeting location in C.V.'s car. Acedo got in the back seat of C.V.'s vehicle while Carter remained outside. Acedo then displayed a weapon and said, "[W]hat you got?" C.V. answered, "I don't know, I don't know what I got." Acedo got out of the car, pointed the gun back in through the passenger window and demanded C.V.'s cell phone. Carter broke the driver's side window and reached for the car keys, cutting his arm on glass. At the same time, Acedo shot C.M. through the passenger-side window. C.V. managed to escape in the car and transport C.M. to the hospital. C.M. gave a statement to police but later died in surgery. The police investigation led to Carter, who had large cuts on one arm, and whose DNA¹ matched blood found in the car.

¶3 Carter was convicted of first degree felony murder and two counts of attempted armed robbery.² The trial court denied his motion for a new trial and imposedconcurrent sentences of life on the murder count and 11.25 years for the attempted armed robbery of C.M. It imposed a consecutive term of 11.25 years for the attempted armed robbery of C.V. Carter filed a delayed appeal so as to include his unsuccessful motion requesting the court run all sentences concurrently.

Discussion

I. Improper Juror Communications

¶4 Carter first argues that the trial court erred in denying his motion for a new trial after a juror ("Juror Two") violated the admonition against improper communications on several occasions. He contends Juror Two's violations of the admonition, his failure to self-report, and the failure of other jurors to report the communications constituted perjury, suggested consideration of outside evidence, and deprived him of a fair trial.³

¶5 We review the trial court's denial of a motion for a new trial under Rule 24.1, Ariz. R. Crim. P., for an abuse of discretion. State v. Rutledge, 205 Ariz. 7, ¶ 15, 66 P.3d 50, 53 (2003). "An 'abuse of discretion' is discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Torres v. N. Am. Van Lines, Inc., 135 Ariz. 35, 40, 658 P.2d 835, 840 (App. 1982). To have abused its discretion, the trial court must have committed an error of law in reaching its decision, or made a discretionary finding of fact that is not justified by reason. State v. Aguilar, 224 Ariz. 299, ¶ 6, 230 P.3d 358, 359-60 (App. 2010). Although potentially cumulative in effect, seeState v. Roberts, 131 Ariz. 513, 515, 642 P.2d 858, 860 (1982), we address each communication separately.

¶6 The first communication occurred during a break in voir dire when Juror Two asked Carter's attorney about the expected length of the trial. After counsel reported the communication, the trial court questioned Juror Two about it, and later reminded all jurors about the admonition against direct communications with the attorneys. No party objected, and Juror Two was selected to serve on the jury.

¶7 The second communication occurred on the third day of trial during the lunch recess. Juror Two informed an investigator for Carter that the hallway door to the jury room was locked. No objections were made and the trial proceeded.

¶8 The trial court was informed about another communication on the first full day of deliberations. Juror Two asked a police officer in the court elevator whether the person who made a phone call setting up a drug deal was guilty if someone was killed during that drug deal. The officer declined to answer the question. Another defense attorney happened to overhear the conversation and reported it to trial counsel. The court questioned the defense attorney and then questioned the juror. Juror Two reluctantly admitted he had posed a question to the police officer. Juror Two explained he was trying "to clarify in [his] mind" whether the intention to commit a small crime could lead to responsibility for a greater crime. The parties agreed that in light of Juror Two's improper conduct, he should be released and an alternate juror substituted in his place. They also agreed each of the remaining eleven jurors should be individually questioned as to whether the dismissed juror attempted to discuss any matters not properly introduced during thetrial. The jurors individually denied that anyone had introduced outside matters during their deliberations.⁴

¶9 The final juror communication was brought to the trial court as part of the motion for a new trial and an order to show cause hearing (OSC) regarding Juror Two. At the OSC, the trial court questioned Juror Two about any communications violating the admonition. Juror Two acknowledged he had posed a question to Juror One—similar to the one he asked the police officer—outside the courtroom during a break from deliberations. Juror One reminded him of the admonition and nothing further was discussed between them.

Perjury

¶10 Carter argues Juror Two committed perjury by not immediately admitting having addressed the police officer and by failing to mention he had spoken with other jurors in violation of the admonition. He also contends the other jurors violated their oath by failing to report Juror Two's violations.

¶11 Under Rule 24.1(c)(3)(iii), a trial court may grant a new trial if a juror is found guilty of misconduct by "[p]erjuring himself or herself or willfully failing to respond fully to a direct question posed during the voir dire examination." This portion of Rule 24.1 has been strictly limited to voir dire examination. See State v. James, 175 Ariz. 478, 479, 857 P.2d 1332, 1333 (App. 1993) ("[B]y express language, Rule 24.1(c)(3)(iii)only addresses perjury committed 'during the voir dire examination.'"). Carter acknowledges "there was not a single instance of perjury during the voir dire to determine whether [the jurors] were qualified to serve." But he contends Rule 24.1(c)(3)(iii) should apply to any untrue statements by a juror. Statements outside of voir dire, however, including lunch breaks or statements regarding juror conduct after voir dire, are simply not perjury under the rule, which must be strictly applied. See James, 175 Ariz. at 479, 857 P.2d at 1333; Ariz. R. Crim. P. 24.1(c)(3)(iii) & cmt. ("Paragraph (3) lists 6 explicit types of jury misconduct and is intended to be construed to exclude all others.") The trial court did not err in denying the motion for a new trial on this basis.

Juror Two's Possible Consideration of Outside Evidence

¶12 Carter also argues the trial court erred in denying his motion for a new trial on the basis of Juror Two's potential consideration of outside evidence.⁵ Ariz. R. Crim. P. 24.1(c)(3)(i) (court may grant new trial if juror receives evidence not properly admitted during trial). Carter bears the initial burden of proving that Juror Two received and considered outside evidence. State v. Hall, 204 Ariz. 442, ¶¶ 16-17, 65 P.3d 90, 95-96 (2003). Carter admits there is no direct evidence of his claim, arguing only that it is implied by Juror Two's other violations of the admonition. Most important, because Juror Two did not participate in the final verdict, any outside evidence he may have considered is irrelevant. Carter cannot meet his burden and we find no abuse of discretion.

Fair Trial

¶13 Carter next argues the trial court erred in denying his motion for a new trial pursuant to the catch-all provision in Rule 24.1(c)(5), because all of Juror Two's communications, even if they did not fit within the enumerated grounds for a new trial, made a "mess" of the trial. Rule 24.1(c)(5) states that the trial court may grant a new trial "[f]or any other reason not due to the defendant's own fault the defendant has not received a fair and impartial trial."

¶14 "Juror misconduct warrants a new trial only if 'the defense shows actual prejudice or if prejudice may be fairly presumed from the facts.'" State v. Davolt, 207 Ariz. 191, ¶ 58, 84 P.3d 456, 473 (2004), quoting State v. Miller, 178 Ariz. 555, 558, 875 P.2d 788, 791 (1994) (emphasis omitted); Ariz. R. Crim. P. 24.1(c) cmt. ("The 'harmless error' rule is applicable to all" grounds for a motion for new trial.). Prejudice can be presumed where there is "'any private communication, contact or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury.'" State v. Miller, 178 Ariz. 555, 558-59, 875 P.2d 788, 791-92 (1994), quoting State v. Remmer, 347 U.S. 227, 229 (1954). The state has the burden to rebut the presumption...