State v. Guytan

• Citation: 266 Ariz. Adv. Rep. 10,968 P.2d 587,192 Ariz. 514
• Decision Date: 07 April 1998
• Docket Number: No. 1,CA-CR,1
• Parties: , 266 Ariz. Adv. Rep. 10 STATE of Arizona, Appellee, v. Gerardo GUYTAN, Appellant. 96-0746.
• Court: Court of Appeals of Arizona

Page 587

968 P.2d 587

192 Ariz. 514, 266 Ariz. Adv. Rep. 10

STATE of Arizona, Appellee, v. Gerardo GUYTAN, Appellant.

No. 1 CA-CR 96-0746.

Court of Appeals of Arizona,

Division 1, Department D.

April 7, 1998.

Review Denied Dec. 7, 1998.

Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, R. Wayne Ford, Assistant Attorney General, Phoenix, for Appellee.

Christopher Johns, Phoenix, for Appellant.

OPINION

EHRLICH, Judge.

¶1 Gerardo Guytan ("defendant") appeals, raising issues regarding the substitution of an alternate juror during jury deliberations and the constitutionality of a prison sentence of "natural life" for first-degree murder. We discuss the procedure for the substitution of a juror during deliberations, and we affirm the convictions for murder, two aggravated assaults and a drive-by shooting, and the sentence of the defendant to a term of natural life. We modify the other three sentences for terms of fixed years.

FACTS AND PROCEDURAL HISTORY ¹

¶2 In the early morning of August 20, 1995, the defendant, a member of the Wetback Power 21st Street Gang, and four fellow gang members encountered three members of the Wetback Power 8th Street Gang. The defendant and his friends were in a Hyundai car; the other three persons were walking. Words had been exchanged and gang signs "flashed" when the defendant fired several gunshots from the car, wounding two of the 8th Street Gang members and killing the third member. The defendant was charged with first-degree murder, drive-by shooting and two counts of aggravated assault.

¶3 When jury selection was completed, trial recessed for twelve days. During that time, the prosecutor first filed an allegation that the offenses were committed to promote, further or assist criminal conduct by a criminal street gang. ARIZ.REV.STAT. ANN. ("A.R.S.") § 13-604(T).

¶4 After presentation of the case was concluded, three alternate jurors were selected by lot, and the remaining jurors retired for deliberations. No more than thirty minutes later, at approximately 5:00 p.m., the jury was excused for the day. The next morning, one juror failed to appear. That afternoon, it was decided upon counsel's stipulation that the first alternate juror would be substituted for the missing juror.

¶5 Immediately before the substitution of the alternate juror, the following colloquy among the trial court and counsel occurred:

The Court: [A juror] did not show up. It's now 1:30 and the court discussed with counsel a viable alternative, another juror....

* * *

The Court: ... Based upon the court's suggestion yesterday that all discharged jurors were [sic] alternate jurors would call the court to find out what the decision of their fellow jurors was, she called at approximately 11:30 and the court conferred with counsel and everyone agreed to her being the 12th juror and to discharging [the other juror] who has not yet showed up.

She has indicated her willingness to do so. I indicated yesterday that she was not to discuss the case with anyone. It's my understanding that she has not discussed the case with anyone and that I plan to reconvene the jury in the courtroom, go over with them the situation, and have them begin their deliberations anew with the inclusion of [the alternate juror].

I'm also going to submit a new revised copy of the page after the murder page that we discussed in which I had the jury write in the first line. Okay.

[The Prosecutor]: Correct.

The Court: Anything further, counsel?

[Defense counsel]: I don't believe so.

[Defense counsel]: Your honor, just to make the record abundantly clear, we don't object to you bringing back [the alternate juror] for the reason that she was kept under the admonition yesterday when she was released.

It was approximately 4:45 when she was released. The jury has done minimal deliberations at this point and as long as they're being told to begin their deliberations anew we do not object to that.

* * *

[Prosecutor]: I believe the defendant has waived his presence for what's going on here in chambers right now.

[Defense counsel]: Yes.

The Court: Very good, gentlemen. Thank you very much. One other thing. I want the record to reflect, with your authorization, I did go in and speak to the 11 jurors and I did explain to them the particular situation and that we're going to bring in [the alternate juror]. I told them to not have this in any way impact upon their decision making abilities and they said they would abide by that. Okay.

¶6 The trial court then reconvened in the presence of the eleven original jurors and the alternate juror. It explained the reason for the substitution, and it confirmed that the alternate juror had not discussed the case with anyone. The court told the jurors that it wanted each of them to actively participate and to return a verdict that would represent individual thinking expressed collectively. Finally, the court advised the jurors to give the matter their full attention and not to be concerned about time constraints. When it asked counsel whether they had any further requests, defense counsel asked the court to inform the jurors that they could deliberate as long as they wanted that day, but he made no other request or objection to the instructions.

¶7 The reconstituted jury deliberated for approximately five hours before finding the defendant guilty as charged. It also found the offenses to be dangerous and committed to promote, further or assist criminal conduct by a gang.

¶8 The trial court sentenced the defendant to serve the remainder of his life in prison as punishment for the murder. It also imposed on the defendant two consecutive 18-year prison sentences for the assaults and a consecutive term of 24 years for the drive-by shooting. Because of the finding of gang motivation, each of the sentences imposing a fixed number of years reflected a three-year increase from the sentence the court otherwise would have given. A.R.S. § 13-604(T).

¶9 The defendant appealed, raising the following issues:

1. Whether the trial court erred in substituting an alternate juror after deliberations had begun;

2. Whether the court committed fundamental error by failing to instruct the reconstituted jury to begin its deliberations anew;

3. Whether the court erred in allowing the prosecutor to seek sentencing enhancement pursuant to A.R.S. section 13-604(T) although he failed to disclose his intent to do so until after the jury had been impaneled;

4. Whether the imposition of a natural-life sentence is unconstitutional because it is subject to arbitrary and capricious application;

5. Whether the court acted arbitrarily or capriciously in sentencing the defendant to natural life.

DISCUSSION

1. Substitution of the Alternate Juror

¶10 The defendant raises several claims of error involving the substitution of an alternate juror for the juror who failed to appear. We have found no Arizona opinion addressing the methodology of substituting a juror after deliberations have begun.

¶11 Potential problems are inherent when a juror leaves deliberations and another person is called to join the process.

Where an alternate juror is inserted into a deliberative process in which some jurors may have formed opinions regarding the defendant's guilt or innocence, there is a real danger that the new juror will not have a realistic opportunity to express his views and to persuade others. Moreover, the new juror will not have been part of the dynamics of the prior deliberations, including the interplay of influences among and between jurors, that advanced the other jurors along their paths to a decision. Nor will the new juror have had the benefit of the unavailable juror's views. Finally, a lone juror who cannot in good conscience vote for conviction might be under great pressure to feign illness in order to place the burden of decision on an alternate.

People v. Burnette, 775 P.2d 583, 588 (Colo.1989) (citations omitted); see also State v. Bobo, 814 S.W.2d 353, 357-58 (Tenn.1991); State v. Lehman, 108 Wis.2d 291, 321 N.W.2d 212, 220 (1982); People v. Ford, 145 Misc.2d 308, 546 N.Y.S.2d 313, 316-17 (1989).

¶12 These concerns have been addressed in a variety of ways. Several federal courts, for example, have upheld the substitution of a juror after the commencement of deliberations, provided that certain procedural safeguards are observed to guard against the threat of prejudice. E.g., Claudio v. Snyder, 68 F.3d 1573, 1575-77 (3d Cir.1995) (refusing relief despite trial court's failure to specifically instruct jury to begin deliberations anew when instruction court gave was "functional equivalent" of such instruction and when substitute juror instructed to be thoroughly familiar with evidence and views of other jurors before proceeding), cert. denied, 517 U.S. 1109, 116 S.Ct. 1329, 134 L.Ed.2d 480 (1996); United States v. Guevara, 823 F.2d 446, 448 (11th Cir.1987) (no reversible error in juror-substitution procedure when original jury deliberated for only short period before discovery that juror was disabled and when court took following "extraordinary precautions": questioned alternate juror as to whether he had discussed case with anyone or had been exposed to any extrinsic information concerning case; questioned each remaining juror as to whether he would be able to begin deliberations anew; ordered confiscation of all juror notes taken during deliberations and recharged new jury); Miller v. Stagner, 757 F.2d 988, 995 (substitution of two alternate jurors did not violate defendants' constitutional rights because trial court's instruction to jury to disregard earlier deliberations and to begin deliberations anew preserved essential feature of the jury), amended on other grounds, 768 F.2d 1090 (9th Cir.1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1269, 89 L.Ed.2d 577 (1986); United States v. Phillips, 664 F.2d 971, 990-96 (5th Cir.1981) ("in the context of a most complex and protracted trial,"...