State v. Green
| Decision Date | 30 September 2013 |
| Docket Number | 2 CA-CR 2012-0262 |
| Parties | THE STATE OF ARIZONA, Appellee, v. HERMAN GREEN SR., Appellant. |
| Court | Arizona Court of Appeals |
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 DECISIONNot for Publication
Rule 111, Rules of
the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz and Kathryn A. Damstra
Tucson
Attorneys for Appellee
Riggs Law PLC
By Lyle D. Riggs
Casa Grande
Attorney for Appellant
¶1 After a jury trial, Herman Green Sr. was convicted of forty-one felony offenses involving acts of sexual and physical abuse. The trial court sentenced him to consecutive prison terms, including six life sentences. On appeal, Green argues the court erred by denying his motion for a mistrial based on juror misconduct. He further contends the court erred by denying his request for a court-appointed mental health expert to assist him in preparing a defense of guilty except insane. For the reasons stated below, we affirm.
¶2 We view the facts and the inferences drawn from them in the light most favorable to sustaining the jury's verdicts. State v. Miles, 211 Ariz. 475, ¶ 2, 123 P.3d 669, 670 (App. 2005). In September 2010, then fourteen-year-old S.G. called 9-1-1 and reported that her father, Green, had been "having sex with [her] for over nine years" and "harm[ed her and her siblings] a lot." After an investigation, Green was charged by indictment with three counts of child molestation, fifteen counts of sexual conduct with a minor, two counts of aggravated assault, twenty-two counts of child abuse, three counts of sexual abuse, and one count of indecent exposure. Twenty-two of those counts related to S.G., and the remaining counts related to her three siblings.
¶3 At the state's request, the trial court dismissed the indecent exposure count, two counts of child abuse, and one count each of child molestation and sexual conduct. The jury found Green guilty of the remaining charges, and the court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶4 Green argues the trial court erred by denying his motion for a mistrial based on juror misconduct. We review a trial court's ruling on a motion for a mistrial based on juror misconduct for an abuse of discretion. State v. Payne, _ Ariz. _, ¶ 96, 306 P.3d 17, 38 (2013). A declaration of mistrial is "the 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." State v. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983).
¶5 While cross-examining S.G., Green suggested she had fabricated her story or otherwise had been "encourag[ed]" by the forensic interviewer and detective investigating the case. During redirect examination, the state played the first forty-five minutes of S.G.'s seventy-eight-minute video recording of the forensic interview to show that she was not "encouraged during the interview." The jury was given a transcript of the interview as a demonstrative aid while the recording played in court. The recording and transcript were not admitted into evidence.1 However, the recording was mistakenly sent in with the jury during its deliberations along with the exhibits that had been admitted during the trial.
¶6 Upon learning the jurors had been provided a computer to play the recording, the trial court decided "it would be prudent . . . to individually voir dire thejurors to determine how much, if at all, of [the recording] they had an opportunity to watch." Both parties agreed with the court's decision. The jurors all stated that a portion of the recording had been played during their deliberations, but not all of them had watched or heard it. Most of the jurors stated they had played approximately ten minutes of the recording. One juror specifically noted that the last time stamp on the video was at nine minutes and twenty-nine seconds, although a few jurors estimated that it had played twenty minutes.
¶7 After all the jurors had been questioned, Green moved for a mistrial on the ground that "[t]he jury, during its deliberations, . . . had access to evidence not admitted in the court." The state responded that "[e]ach of the jurors said that they had seen less of the interview than was played in open court" and suggested that a limiting instruction would be sufficient to address the issue. The trial court denied Green's motion for a mistrial, explaining: "The court is very confident that based on the responses of the individual jurors that they did not see more than the [portion of the recording which] was played for their benefit [at trial]." The court then brought the jury back into the courtroom and explained that the recording was not admitted into evidence, should not have been provided to them, and was only played at trial to show "the types of questions that were asked by the forensic interviewer of [S.G.]"
¶8 On appeal, Green argues the jury committed misconduct by viewing the recording during deliberations. He contends he was prejudiced because by watching the recording the jury in effect watched S.G. "testify a second time unfettered by judicial protections." He maintains this bolstered the credibility of S.G. and her siblings and"simultaneously" caused the jury to determine that Green was not credible. He also argues the trial court's curative instructions "could not counter the prejudicial effects" of the jury watching the recording because "[e]xpecting the jury . . . to disregard S.G.'s answers and only consider the questions asked is farcical."
¶9 Juror misconduct warrants a new trial if the defendant shows "actual prejudice or if prejudice may be fairly presumed from the facts." State v. Miller, 178 Ariz. 555, 558, 875 P.2d 788, 791 (1994); see also State v. Vasquez, 130 Ariz. 103, 105, 634 P.2d 391, 393 (1981). A defendant has the burden of proving an allegation that the jury has obtained and considered extrinsic evidence. State v. Hall, 204 Ariz. 442, ¶ 16, 65 P.3d 90, 95 (2003). Extrinsic evidence is "information obtained from or provided by an outside source, whether admissible but not admitted at trial or inadmissible for some legal reason." State v. Dickens, 187 Ariz. 1, 15, 926 P.2d 468, 482 (1996), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239, 274 P.3d 509 (2012). If the defendant meets his initial burden, "prejudice must be presumed and a new trial granted unless the prosecutor proves beyond a reasonable doubt that the extrinsic evidence did not taint the verdict." Hall, 204 Ariz. 442, ¶ 16, 65 P.3d at 95; see also State v. Davolt, 207 Ariz. 191, ¶ 58, 84 P.3d 456, 473 (2004). In determining whether extrinsic evidence affected the verdict, courts consider:
1. whether the prejudicial statement was ambiguously phrased;
2. whether the extraneous information was otherwise admissible or merely cumulative of other evidence adduced at trial;
3. whether a curative instruction was given or some other step taken to ameliorate the prejudice;
4. the trial context; and
5. whether the statement was insufficiently prejudicial given the issues and evidence in the case.
Hall, 204 Ariz. 442, ¶ 19, 65 P.3d at 96, citing United States v. Keating, 147 F.3d 895, 902-03 (9th Cir. 1998).
¶10 Here, we conclude Green did not meet his burden of establishing that the jury considered extrinsic evidence. The video recording was marked as an exhibit, and the state presented the first forty-five minutes of it at trial. Although the recording contained additional information not presented at trial, the jury did not view that portion of it. Every juror indicated they had played less of the recording during their deliberations than was presented at trial. Accordingly, the jury did not consider extrinsic evidence. Although Green suggests the recording was extrinsic evidence because, although played during trial, it was not admitted as an exhibit, he does not cite any authority for this proposition, and we are aware of none.
¶11 Green's reliance on United States v. Harber, 53 F.3d 236 (9th Cir. 1995), to support his argument is misplaced. In that case, the court concluded the defendant was entitled to a new trial because extrinsic material—a case report used by a federal agent to refresh his memory while testifying but not read to the jury or admitted into evidence—had been provided to the jury during deliberations. Harber, 53 F.3d at 238-39. But, in Harber, the state conceded that the jury had "read and relied upon" the report whiledeliberating. Id. at 241. Here, the jury did not view the portion of the recording not presented at trial.
¶12 Even assuming the recording constituted extrinsic evidence, we are satisfied beyond a reasonable doubt that it did not affect the verdict. See Hall, 204 Ariz. 442, ¶ 16, 65 P.3d at 95. In making this determination, we have considered the Hall factors noted above and find the second and fourth particularly relevant. The portion of the recording that was played during deliberations was merely cumulative of—indeed, identical to—evidence presented at trial. See, e.g., State v. Shearer, 164 Ariz. 329, 339-40, 793 P.2d 86, 96-97 (App. 1989) (). Moreover, the trial court was made aware that the recording had been erroneously provided to the jury before it reached a verdict and provided curative instructions. See, e.g., State v. Bracy, 145 Ariz. 520, 526, 703 P.2d 464, 470 (1985) (...
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