State v. McCutcheon, 6626

• Decision Date: 18 July 1986
• Docket Number: No. 6626,6626
• Citation: State v. McCutcheon, 150 Ariz. 317, 723 P.2d 666 (Ariz. 1986)
• Parties: STATE of Arizona, Appellee, v. Terry Lynn McCUTCHEON, Appellant.
• Court: Arizona Supreme Court

Page 666

723 P.2d 666

150 Ariz. 317

STATE of Arizona, Appellee, v. Terry Lynn McCUTCHEON, Appellant.

No. 6626.

Supreme Court of Arizona In Banc.

July 18, 1986.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Joseph T. Maziarz, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by James H. Kemper, Deputy County Public Defender, Phoenix, for appellant.

CAMERON, Justice.

Defendant, Terry Lynn McCutcheon, was convicted of armed burglary, A.R.S. § 13-1508, seven counts armed robbery, A.R.S. § 13-1904, and nine counts of kidnapping, A.R.S. § 13-1304. He was sentenced to serve fifteen years on the armed burglary count; life on each armed robbery count; and twenty-one years on each kidnapping count. The sentences are to run concurrently. We have jurisdiction pursuant to art. 6, § 5(3) of the Arizona Constitution and A.R.S. § 13-4031.

We consider only one question on appeal and that is considering the totality of the circumstances, were the comments and questions of the trial judge to the jury so coercive as to require a mistrial?

The facts follow. During the early morning of 1 May 1984, two men armed with guns entered a Phoenix restaurant. The faces of the gunmen were covered by bandanas. They forced the restaurant personnel and patrons to lay on the floor and then robbed them. While the robbery was in progress, a policeman arrived at the restaurant. Apparently, one of the robbers, realizing the police had arrived, attempted to escape by jumping through a glass window. He was immediately arrested. The police identified him as Charles McDonald. Upon searching the restaurant, however, police were unable to locate the other robber.

Later, the police came to suspect defendant who resided with McDonald and McDonald's girlfriend, Shirley Erickson. While waiting outside Erickson's apartment, the police saw someone drive up in Erickson's car. A few minutes later, they saw defendant walk up to the apartment. They then arrested him. In the car, the police found bandanas and items taken in the restaurant robbery.

Defendant and McDonald were tried jointly. While McDonald chose to testify, defendant did not take the stand. After many days of testimony and a trip to the crime scene, the jury eventually returned a verdict of guilty on all counts as to each defendant. Defendant McCutcheon now appeals.

The jury began deliberations on 21 December 1984. After deliberating for nine hours over two days, the jury sent the trial judge a note stating that it could not agree on a verdict. The court responded with a written instruction urging that the jury reach an agreement.

Later, the jury sent to the trial judge another note, which stated: "If we declare a hung jury, will we have to each present our individual views in open court? Two jurors believe there is not enough conclusive physical evidence and circumstantial evidence on all counts for both defendants. signed, [Foreman]." (emphasis added). The trial court called the jury into open court and questioned the foreman.

THE COURT: We have called you back into the courtroom to discuss whether or not you can reach a verdict. Mr. Chavez, [foreman] I need to know whether you believe on behalf of the members of the jury whether or not there is any reasonable possibility or probable that the jury will be able to reach a verdict in a reasonable time? Before you answer that, I don't want you to tell me how many ballots you have taken. I don't want you to tell me what the split is or anything. Just whether or not you feel there is a reasonable probability the jury can reach a verdict within a reasonable period of time. Whether it be tonight or some other time.

MR. CHAVEZ: Now, on this answer, this question, when you say reasonable time, you are talking about tonight or a future--

THE COURT: * * * But my question right now, within a reasonable period of time, do you think this jury can reach a verdict on the various counts on the two defendants?

MR. CHAVEZ: Well, from what I have determined, this jury cannot come to a unanimous decision.

THE COURT: On any?

MR. CHAVEZ: On any counts. That is, unanimous on all counts. We can't come to an unanimous--

THE COURT: --decision on any one?

MR. CHAVEZ: Not even on one. I have gone over all the jurors and I have gone over this to--I have asked that question, if there is even any single count on what we can all agree.

THE COURT: On either of the defendants?

MR. CHAVEZ: On either defendant.

THE COURT: All right.

* * *

* * *

THE COURT: Can this jury, in your opinion, reach a verdict on one count against one defendant?

MR. CHAVEZ: I can't answer that question. I would have to go back into the room and ask that question. I have asked that question before.

THE COURT: You didn't have this case very long last night, I think just an hour or so. Was it not a couple of hours at the most? You have been at it all day long today. We have had a two week trial. We have had six days--twelve days--how many days? We have had, I think, four days one week and five days--six, okay. Do you think it's a probability that the jury, if you could recess now and come back some time in the future, you can then start again with your notes and read the jury instructions once again and perhaps reach one verdict on one count against one defendant?

(emphasis added).

The trial court then held a bench conference during which the state asserted that he thought the judge's last statement suggested that the jury should find one defendant guilty on one count. The judge disagreed with the state's assertion, and further discussion at the bench followed. Then, in open court the judge said,

Ladies and gentlemen, I am in no way attempting to put any pressure on you to reach any verdict. I'm only trying to determine whether or not you have deliberated as far as you think you can go in order to reach a verdict.

The trial judge again asked the foreman whether the jury could return a verdict within a reasonable time. The foreman expressed a willingness to return to deliberations; however, when the judge asked the entire panel that question, the two holdout jurors individually asserted they did not intend to change their minds. The judge again asserted that she was not trying to pressure the jury but that she needed to determine whether further deliberations would be helpful. By a show of hands, the jury unanimously asserted it could not.

The trial judge then called the attorneys to the bench. Counsel for McDonald asserted that the jury should continue to deliberate and if necessary, the jury could break for the holiday and return the day after Christmas to continue their deliberations. Counsel for defendant McCutcheon, however, asserted that a mistrial should be granted.

Nevertheless, the judge told the jury she believed they had not had sufficient time to deliberate and therefore, she was not going to declare a mistrial. The trial judge ordered the jury to return 26 December 1984. On 26 December 1984, the jury deliberated almost six more hours and returned verdicts of guilty on all counts as to each defendant. From the denial of his motion for new trial, defendant appeals.

We have no quarrel with the attempt by the trial judge to urge the jurors to reach a verdict if they were able to do so...