State v. Huerstel, CR-01-0103-AP.

• Decision Date: 02 September 2003
• Docket Number: No. CR-01-0103-AP.,CR-01-0103-AP.
• Citation: 206 Ariz. 93,75 P.3d 698
• Parties: STATE of Arizona, Appellee, v. Christopher Bo HUERSTEL, Appellant.
• Court: Arizona Supreme Court

75 P.3d 698

206 Ariz. 93

STATE of Arizona, Appellee, v. Christopher Bo HUERSTEL, Appellant.

No. CR-01-0103-AP.

Supreme Court of Arizona, En Banc.

September 2, 2003.

Janet A. Napolitano, Former Attorney General, Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel Capital Litigation Section and Monica Beerling Klapper, Assistant Attorney General, Phoenix, and Bruce M. Ferg, Assistant Attorney General, Tucson, Attorneys for Appellee.

Law Offices of Williamson & Young, PC, by S. Jonathan Young, Tucson, Attorney for Appellant.

OPINION

RYAN, Justice.

¶ 1 A Grand Jury indicted Christopher Bo Huerstel and his co-defendant, Kajornsak Prasertphong, charging them with three counts of first degree murder for the January 17, 1999 deaths of Robert Curry, Melissa "Lisa" Moniz, and James Bloxham at a Pizza Hut restaurant in Tucson. The indictment also charged Huerstel and Prasertphong with three counts of armed robbery in connection with the murders. The cases generated a significant amount of media attention in Tucson. Consequently, the trial court granted a motion for change of venue to Yavapai County. The court also granted a motion to sever the trials, but ruled that because enough similarity existed between the cases in terms of facts and witnesses, conducting the trials before a single judge with dual juries would be the most efficient way to try the cases.

¶ 2 Huerstel's jury convicted him of three counts of first degree felony murder and three counts of the lesser-included offense of attempted armed robbery. Following an aggravation and mitigation hearing, the trial judge sentenced Huerstel to death for the murders of Moniz and Bloxham, and to a prison term of natural life for the murder of Curry. See Arizona Revised Statutes ("A.R.S.") § 13-703 (1994). The judge also sentenced him to fifteen years in prison for each of the three attempted armed robbery counts. A Notice of Appeal to this court was filed under Arizona Rules of Criminal Procedure 26.15 and 31.2(b) and A.R.S. section 13-4031 (2001). This court has jurisdiction under Article 6, Section 5.3 of the Arizona Constitution and A.R.S. section 13-4031.

I.

¶ 3 Huerstel raises twenty-three issues on appeal, most of which are meritless.¹ However, because we conclude the trial court's actions coerced the jury's verdicts, we must reverse and remand for a new trial. Accordingly, this opinion addresses only that issue and also those that will likely arise at retrial. We therefore only set forth the facts relevant to the issues we address. For a detailed account of the crimes and subsequent events see the opinion issued today in State v. Prasertphong, ___ Ariz. ___, __________, ¶¶ 215, ___ P.3d ___, _______, 2003 WL 22039960 (2003).

II.

¶ 4 Huerstel presents several claims concerning the jury deliberations in this case: first, the actions of the trial judge coerced the jury verdict; second, the trial judge engaged in an improper ex parte communication with a juror; third, there was "dissension" among the jurors; and fourth, the jury deliberated in small groups. Because the trial judge's actions improperly influenced the jury's verdict, we focus on that claim.

A.

¶ 5 In determining whether a trial court has coerced the jury's verdict, this court views the actions of the judge and the comments made to the jury based on the totality of the circumstances and attempts to determine if the independent judgment of the jury was displaced. State v. McCrimmon, 187 Ariz. 169, 172, 927 P.2d 1298, 1301 (1996); State v. McCutcheon, 150 Ariz. 317, 320, 723 P.2d 666, 669 (1986) (McCutcheon I). In this case, the issue can best be understood within the context of a comprehensive recounting of the slightly more than three and one-half days of jury deliberations.

B.

¶ 6 The trial lasted about three weeks, beginning on August 21, 2000. The trial court gave the jury its final instructions on September 11, 2000, and the jury deliberated for a short time that afternoon. The next day, September 12, the jury deliberated all day. During that time, the court received several questions from the jury asking whether certain items were in evidence. At no time did the jury indicate that it had reached an impasse or was having difficulty. The court excused the jury at 4:40 in the afternoon and instructed it to come back the next morning at 9:00. After excusing the jury, the trial judge told counsel he intended to give the jurors an additional instruction, essentially asking if the jurors were having problems and to "give them some direction." Both attorneys believed that such an instruction was premature.

¶ 7 The jury deliberated all day on September 13. It asked only one question about the credentials of an expert witness and gave no indication of an impasse. The trial court did not give the proposed instruction it had discussed the evening before.

¶ 8 On the morning of September 14, the court received a question from the jury about an evidentiary matter and an instruction. After consulting with counsel, the court sent in a response. Then, at the end of the day, the court told counsel it intended to give the jury an impasse instruction based on the comment to Rule 22.4 of the Arizona Rules of Criminal Procedure. Counsel for Huerstel objected to giving any part of the instruction. The State asked the court to "rethink" the last paragraph because the jury had not indicated it needed help. The court overruled all objections and then read the following instruction to the jury:

Ladies and Gentlemen:

If you are having problems or difficulties in reaching an agreement, you may wish to identify areas of agreement and areas of disagreement. You may then wish to discuss the law and the evidence as they relate to your areas of disagreement.

If you still have disagreements you may wish to identify for the court and counsel which issues or questions of law or fact you would like counsel or the court to assist you with. If you elect this option, please list in writing the issues where further assistance might help bring about a verdict.

I do not wish or intend to force a verdict. We are merely trying to be responsive to your apparent need for help. If it is reasonably probable that you could reach a verdict as a result of this procedure, it would be wise to give it a try.

The court then excused the jury for the day.

¶ 9 Later, after counsel and the defendant had left the courthouse, Juror H. approached the trial judge. Immediately after their conversation, the judge dictated the gist of the encounter to his court reporter for the record, essentially stating that he had been "accosted" by the juror asking "how long this had to go on." Juror H. also told the judge "she was not the only one that was being yelled at, she was not the only one holding her position, that others were also having—had the same position that she did, whatever that was." (Emphasis added.) The judge told the juror that arguments are part of the deliberative process. According to the judge, the juror mentioned neither her position with respect to the verdict nor the positions of the rest of the jurors.

¶ 10 The next day, September 15, the court disclosed the ex parte communication to counsel. Huerstel moved for a mistrial based on the length of the deliberations, the ex parte communication, juror dissension, and the coerciveness of the instruction the judge had given the jury the day before. He also requested that the jury be brought in and asked if further deliberations would result in a verdict. The court denied the mistrial motion and the request to ask the jury if it had reached an impasse. The court told counsel that when the jury came in to start deliberations, it would give the jury a written copy of the instruction it had given orally the evening before.

¶ 11 Later that morning, the court received two notes from the jury. The first note stated the following:

Eleven members of the jury agree that we have not fully deliberated all the facts of the case and have an open mind. One juror says that his/her mind is made up and no amount of discussion will change his/her opinion. Any suggestions?

(Emphasis added.) The second note came from an individual juror asking to be removed from the jury "[d]ue to conflicting personalities and my sanity."

¶ 12 In response to the second note, over Huerstel's objection, the judge sent a note to the individual juror advising him or her that a meeting with a social worker could be arranged, and if it was found that further service was dangerous to the juror's mental health, he or she could be excused.² In response to the jury's first question regarding what to do with the single juror whose mind was made up, the judge sent the following note:

Can you list the specific issues that are a problem with the juror who allegedly refuses to deliberate any further? [E].g.[,] One or more of the instructions, some factual area?

(Emphasis added.)

¶ 13 Huerstel argued it was inappropriate for the court to ask the holdout juror to support his or her position. At this stage in the process, the court knew that the jury was split eleven to one, with the one juror emphatically stating "no amount of discussion will change his/her opinion."

¶ 14 The jury responded to the judge's request as follows:

[Huerstel's] statement to police proves to me he did not know specifics about shootings. Hence could not have been the shooter. Hence invalidates his confession. And with other evidence lead[s] me to to [sic] my firm conclusion to all charges. This is the response of the juror in question. He/she states that no explanation will change his/her mind.

(Emphasis added.) This response contained two different types of handwriting, with the first paragraph of the note in one type of handwriting and the remaining portion of the note in another. At this point, the court knew the holdout juror favored acquittal and that no further explanation would change his mind. Counsel for both parties agreed...