State v. Lautzenheiser
| Decision Date | 20 September 1994 |
| Docket Number | No. CR-93-0363-PR,CR-93-0363-PR |
| Citation | 881 P.2d 339,180 Ariz. 7 |
| Parties | STATE of Arizona, Appellee, v. James P. LAUTZENHEISER, Appellant. |
| Court | Arizona Supreme Court |
Defendant was charged with aggravated driving while under the influence of intoxicating liquor, a class five felony. His first trial ended with a hung jury on October 3, 1991. A second trial commenced December 30. The case was given to the jury at approximately 3:33 p.m. on December 31.
At 4:20 p.m., the jury foreman announced in open court that a guilty verdict had been reached. At defense counsel's request, the jurors were polled, as follows: 1
(emphasis added). After having been told twice by juror number one (J.G.) that the verdict was not hers, and following an off-the-record bench conference, the judge took a short recess. There is no record of what, if anything, transpired during this break in the proceedings. Upon returning to the courtroom, the judge engaged in the following colloquy with the jury foreman:
(emphasis added). The jurors then retired to resume deliberations at 4:30 p.m. No cautionary instructions were requested or given. Approximately 20 to 25 minutes later, the jury returned a unanimous guilty verdict and was again polled. This time, every juror concurred. The court excused the jury at 4:55 p.m. without further inquiry.
Defendant claims the foregoing procedure effectively resulted in a "coerced" verdict. He cites State v. McCutcheon, 150 Ariz. 317, 723 P.2d 666 (1986) (McCutcheon I ), 2 and the dissenting opinion in State v. Roberts, 131 Ariz. 513, 516-18, 642 P.2d 858, 861-63 (1982), in support of his position. Defendant further asserts that because the error here was fundamental, his failure to object was not fatal. The court of appeals, with one judge dissenting, affirmed the conviction. State v. Lautzenheiser, 177 Ariz. 26, 864 P.2d 1058 (Ct.App.1993). We granted review and have jurisdiction pursuant to Ariz. Const. art VI, § 5(3) and A.R.S. § 12-120.24.
We must determine, if possible, whether the defendant received a fair trial at the hands of an independent jury, the members of which were free from intimidation or undue pressure. McCutcheon I, 150 Ariz. at 319-20, 723 P.2d at 668-69. We agree with the court of appeals that the "totality of the circumstances" must be considered in making this determination. Lautzenheiser, 177 Ariz. at 28, 864 P.2d at 1060 (citing Roberts, 131 Ariz. at 515, 642 P.2d at 860). We disagree, however, with the conclusion of that court's majority.
The backdrop against which this verdict was reached should have caused a high degree of caution and suspicion on the part of all participants. There naturally exists a sense of urgency whenever a jury trial goes into late afternoon the day before a major holiday. People have plans, and potential distractions are many. 3 Moreover, submitting a DUI case to a jury late in the day on New Year's Eve, a holiday that in recent years has been accompanied by a media blitz concerning the deadly consequences of drinking and driving, seems at best a questionable proposition if calm and reasoned deliberation is the goal. The judge and the lawyers here should have been on high alert.
Things could only have gone from bad to worse for defendant when juror number one was effectively singled out, not once but twice, as the person responsible for delaying the conclusion of proceedings (and thus preventing everyone from going home). While it is true that this identification occurred during the polling process, without any fault on the part of the judge or lawyers, the potential for harm should have become immediately apparent. As noted by the dissent in Roberts, "[f]rom a pragmatic standpoint, when such a division is announced and eleven [here, seven] pairs of eyes turn to look at the single holdout, it is impossible to conclude that the juror was not subjected to pressure after the jury had returned to the jury room." 131 Ariz. at 517, 642 P.2d at 862; see also McCutcheon I, 150 Ariz. at 320, 723 P.2d at 669 ().
The final blow, however, came with the appraisal by the jury foreman that he did not believe a verdict could be reached, followed immediately by the court's order to continue trying. Under these circumstances, and in the absence of any cautionary instructions, 4 it is not hard to imagine the discussion that ensued when the jury retired to deliberate for the second time, nor is it surprising that a guilty verdict was reached so quickly thereafter. Unfortunately, we will never know what occurred because of the hasty manner in which the jury was discharged without pertinent inquiry following its verdict. A cynic might suggest that juror number one should have been checked for bruises.
The discussion here between the judge and jury foreman causes us the same discomfort we voiced in McCutcheon I:
Since the jury knew that the trial judge was aware the majority had voted for conviction, her repeated questions sent an inference that she agreed with the majority. We believe she implicitly communicated to the dissenters the message that she thought they should change their views, since that would be the only way, in all likelihood, a verdict could be reached. Any pressure to decide then was pressure to decide against the defendant.
150 Ariz. at 320, 723 P.2d at 669.
The state argues, however, that defense counsel's failure to object results in waiver, precluding reversal by this court. "Absent a finding of fundamental error, failure to raise an issue at trial ... waives the right to raise the issue on appeal." State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991). Fundamental error is that "which goes to the foundation of the case, or which takes from a party a right essential to his case." Johnson v. Elliot, 112 Ariz. 57, 61, 537 P.2d 927, 931 (1975). The integrity of the justice system demands unfettered juries. This principle goes to the very heart of our jurisprudence. "Every attempt to drive men into an agreement which they would not have reached freely is a perversion of justice." State v. Voeckell, 69 Ariz. 145, 159, 210 P.2d 972, 981 (1949) (Udall, J., dissenting) (quoting Pierce v. Pierce, 38 Mich. 412, 417 (1898)). Thus, we believe that whenever a judge improperly influences or coerces a verdict, the defendant is denied "a right essential to his case." 5
Even applying the "bifurcated" analysis referred to in State v. King, 158 Ariz. 419, 424 n. 4, 763 P.2d 239, 244 n. 4 (1988), we cannot say on the record before us that the judge's order to continue deliberations after juror number one had been identified as the lone dissenter, together with the lack of cautionary instructions, did not "contribute to or significantly affect" this verdict. State v. Thomas, 130 Ariz. 432, 436, 636 P.2d 1214 1218 (1981). The hung jury in the first trial, coupled with the lack of unanimity here, raises legitimate questions about the strength of the state's case. The evidence against defendant certainly was not overwhelming. 6
The court of appeals concluded in part that any error was not fundamental because "[t]he circumstances of this case indicate less coercion than in McCutcheon [II]," and no such error was found there. 177 Ariz. at 31, 864 P.2d at 1063. We respectfully disagree. We begin with the observation made by the dissent in Roberts, 131 Ariz. at 518 n. 3, 642 P.2d at 863 n. 3, that use of the word "coercion" in circumstances such as these is both unfortunate and unnecessary, as nothing so strong need be shown to justify relief. Furthermore, we believe McCutcheon II is distinguishable for several reasons.
First, the alleged error there consisted of comments by the trial judge regarding the sufficiency of the evidence and the short amount of time the jury had deliberated. No jurors were singled out, nor was their numerical division revealed. Thus, we determined that had an objection been raised, "the judge could have explained his comments to the jury, and cured any possible error." McCutcheon II, 162 Ariz. at 60, 781 P.2d at 37. Considering all the circumstances, the difficulties of the present case might not have been so easily remedied. Second, although a written note from the jurors in McCutcheon II indicated they were divided, there was no apparent resistance to the further deliberations suggested by the trial judge. Here, in...
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...trial at the hands of an independent jury, the members of which were free from intimidation or undue pressure." State v. Lautzenheiser, 180 Ariz. 7, 9, 881 P.2d 339, 341 (1994). The court will find coerciveness if, under the totality of the circumstances, the trial court's actions or remark......
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