State v. Hilliard

• Decision Date: 22 July 1982
• Docket Number: No. 1,CA-CR,1
• Citation: 133 Ariz. 364,651 P.2d 892
• Parties: STATE of Arizona, Appellee, v. Michael Felton HILLIARD, III, Appellant. 5376.
• Court: Arizona Court of Appeals

Page 892

651 P.2d 892

133 Ariz. 364

STATE of Arizona, Appellee, v. Michael Felton HILLIARD, III, Appellant.

No. 1 CA-CR 5376.

Court of Appeals of Arizona,

Division 1, Department C.

July 22, 1982.

Rehearing Denied Aug. 27, 1982.

Review Denied Sept. 28, 1982.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Chief Counsel, Crim. Div. and Barbara A. Jarrett, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Terry J. Adams, James R. Hart, Deputy Public Defenders, Phoenix, for appellant.

OPINION

CONTRERAS, Judge.

At issue is whether the trial judge's intrusions into the jury room and conversations with the jurors require reversal of appellant's convictions. We hold that they do and remand the case for a new trial.

Appellant Michael Felton Hilliard, III, was convicted of Count I, burglary; Count II, sexual assault; Count III, kidnapping, a dangerous felony; Count IV, sexual assault, a dangerous felony; and Count V, robbery. Appellant was sentenced to 10 years for Count I, 14 years for Count II, 21 years for Count III, 21 years for Count IV, and 14 years for Count V. The court ordered that Counts III and IV run consecutively and that Counts I, II and V run concurrently with each other and with Counts III and IV. Appellant's motion for a new trial was denied. Appellant has presented four arguments on appeal: (1) that the trial judge improperly communicated with the jury on two separate occasions; (2) that the trial judge improperly commented on the evidence; (3) that the trial judge erred in sentencing; and (4) that the appellant did not receive effective assistance from his trial counsel. We find the first issue dispositive, and reverse and remand.

THE FIRST COMMUNICATION

The reporter's transcript of proceedings reflects that at the end of the first day of jury deliberation, the trial judge physically entered the jury room. We quote from the transcript:

(The following proceedings were held in the jury room at 4:50)

THE COURT: Ladies and gentlemen, I think we'll recess tonight, unless there's any reason that you think you need to stay a little longer for another ten minutes. Why don't we come back tomorrow at 9:00 o'clock. Please remember my admonitions.

I don't want you to go to the scene of the alleged crime, and I want you to especially remember not to talk this over with anybody else. You were chosen by the lawyers specifically to do the job. No one else. Don't ask anyone what you would do in such and such a case. This is strictly your job.

A JUROR: Can I ask one little question?

THE COURT: Okay.

A JUROR: I think it's going to relate to the other two jurors. A lot of people have been confused about the layout of the house, and these pictures don't help.

THE COURT: Remember, I told you that for whatever reasons all the evidence is before you. To bring in any more information--in essence, we'd have to reopen the whole case.

A JUROR: Okay.

THE COURT: So, we can't give you any more information. There's no more information we can give you.

A JUROR: Sir? May I say something?

THE COURT: Want you to know, we are making a record and--

A JUROR: I just--

THE COURT: And the defendant is not present nor his counsel.

A JUROR: This doesn't have anything to do with the case.

THE COURT: Off the record. (An off the record discussion ensued.)

THE COURT: Thank you. We'll see you tomorrow morning at 9:00 o'clock.

There is no indication in the record as to the length of the non-record discussion between the judge and jury, nor the subject matter of the conversation. There is no indication as to when, or how, appellant's counsel first learned of the incident. It could very well be that counsel had no knowledge of what transpired until the reporter's transcript of proceedings was prepared. Thus, as candidly recognized by appellee, the record does not show that appellant had an opportunity to voice his objection at the trial level. In short, the critical facts of this case are: (1) there was an actual physical intrusion by the judge into the jury room; (2) the communication was not clearly consented to by appellant or his counsel; (3) there was an off-the-record discussion between the judge and a juror in

the presence of the jury; and (4) there is no indication of what was discussed off the record.

REVERSIBLE ERROR

The most important fact is the actual physical intrusion of the judge into the jury room during the course of deliberations. The only two Arizona opinions which have dealt with this situation have denounced this practice in the strongest terms. See State v. Burnetts, 80 Ariz. 208, 295 P.2d 377 (1956); State v. Werring, 111 Ariz. 68, 523 P.2d 499 (1974).

In Burnetts, in response to a jury inquiry, the trial judge took it upon himself to go to the door of the jury room and tell the jury that a particular exhibit had been withdrawn from evidence. A jury member then asked the judge a question about a recommendation of leniency, to which the judge responded. The meeting occurred without notice to counsel. The Arizona Supreme Court stated:

... There can be no question but that in the discharge of his official duty, the place for the judge is on the bench. As to him, the law has closed the portals of the jury room, and he may not enter.

... We find that in practically all of the reported cases appellate courts properly regard communications between the trial judge and jurors, relative to the trial, as of a more serious nature and more likely to have a prejudicial effect than communications between other court officials or attendants and jurors....

It is impossible to promote confidence in the administration of justice unless the jury is kept free from outside influences. In the instant case, if the jurors desired a question answered or further instructions, the proper way to have handled the matter would have been to bring them back into open court with its attendant safeguards.

80 Ariz. at 211-212, 295 P.2d at 378-379. The court reversed and remanded for new trial.

In Werring, the jurors sent to the judge a note with three questions. The judge consulted with the attorneys and read the questions to them but refused to let the defense counsel read the written questions, refused to have a court reporter or clerk present, and made no reference to the event in his minute entries. The judge then entered the jury room to orally answer the jury's inquiries. Upon his return, he advised counsel that in addition to answering the original written questions, he had orally responded to further juror questions. The Arizona Supreme Court, citing Burnetts, stated:

We condemn the conduct of the judge in as strong terms as is possible.

111 Ariz. at 69, 523 P.2d at 500. The court reversed and remanded for new trial.

In State v. Robin, 112 Ariz. 467, 543 P.2d 779 (1975), the jury, after retiring to deliberate, sent the judge questions which dealt with issues of fact. The judge did not go into the jury room, but did answer the questions from his notes and his recollection of the relevant testimony. The Arizona Supreme Court, citing Werring and Burnetts, peremptorily reversed and remanded for a new trial.

The issue presented here is whether the very strong condemnation of a judge's intrusion into the jury room expressed in Burnetts and Werring have been eroded by more recent decisions dealing with other forms of judge-jury communications. We do not believe that it has.

In State v. Mata, 125 Ariz. 233, 609 P.2d 48 (1980), the Arizona Supreme Court considered two communications from judge to jury, both made in court during trial but without notice to defense counsel. The court, while holding that the communications were not prejudicial and therefore not reversible error, reviewed the Arizona case law and stated the following general principles:

The general rule in Arizona is that reversible error occurs when a trial judge communicates with jurors after they have retired to deliberate,7 unless defendant and counsel have been notified and given an opportunity to be present. State v Lamb, 116 Ariz. 134, 568 P.2d 1032 (1977); State v. Robin, supra; State v. Werring, supra; State v. Burnetts, supra. While the cases cited by defendant do hold that prejudice need not be shown, all of these cases involved situations fraught with potential for prejudice to defendant,8 wherein it was impossible to ascertain the impact of the communication upon the jury. See also United States v. Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975). Such circumstances warrant an irrebuttable presumption of prejudice. See State v. Davis, 117 Ariz. 5, 570 P.2d 776 (1977). Where it may be said, beyond a reasonable doubt, that there was no prejudice to the defendant, a communication between judge and jury outside the presence of defendant and counsel is harmless error. See State v. Lawrence, 123 Ariz. 301, 599 P.2d 754 (1979); State v. Davis, supra. See generally Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

125 Ariz. at 240-241, 609 P.2d at 55-56. Of particular significance are the substantive distinctions set forth in the footnotes of Mata. We quote from the footnotes:

7. We note that none of the instant communications occurred after the jury retired to deliberate. This aspect of the general rule is derived from 17 A.R.S., Rules of Criminal Procedure, rule 22.3, which provides: "After the jurors have retired to consider their verdict, if they desire to have any testimony repeated, or if they or any party request additional instructions, the court may recall them to the courtroom and order the testimony read or give appropriate additional instructions. The court may also order other testimony read or give other instructions, so as not to give undue prominence to the particular testimony or instructions requested. Such testimony may be read or instructions given only after notice to the...