State v. McLoughlin

Decision Date20 September 1982
Docket NumberNo. 5158,5158
Citation652 P.2d 531,133 Ariz. 458
PartiesSTATE of Arizona, Appellee, v. Edward Gerard McLOUGHLIN, Appellant.
CourtArizona Supreme Court
Robert K. Corbin, Atty. Gen., William J. Schafer III, Asst. Atty. Gen., Chief Counsel, Crim. Div., Robert S. Golden, Asst. Atty. Gen., Phoenix, for appellee

Michael E. Benchoff, Phoenix, for appellant.

GORDON, Vice Chief Justice:

Appellant stands convicted of first degree murder, A.R.S. § 13-1105, and first degree burglary, A.R.S. § 13-1508. The trial court sentenced him to death for the murder and to ten years imprisonment for the burglary. We have jurisdiction pursuant to Ariz. Const. Art. 6, § 5(3) and A.R.S. § 13-4031. Because of jury misconduct, we reverse the conviction and sentences and remand for a new trial. Other issues likely to recur on retrial are also addressed.

The charges are premised on a felony murder at a liquor store in Scottsdale, Arizona. One night, Edgar Kuykendall came out of the back room of the store where he had been cleaning. Across the store, he saw appellant pointing a gun at the victim who was standing behind the register. Kuykendall heard the victim say, "Give me a little time," as the victim tried to open the cash register. Within a few seconds, appellant fired one shot at the victim which fatally wounded him.

Appellant rushed out of the store and ran to a self-service car wash north of the store. Witnesses saw him run from the store, gun in hand, to a truck waiting for him in a car wash bay. He jumped into the passenger side of the truck which was being driven by his accomplice Donald K. Nelson. See State v. Nelson, 129 Ariz. 582, 633 P.2d 391 (1981). The truck pulled out of the car wash and headed north.

Two witnesses riding together in a vehicle followed the truck long enough to obtain its license plate number. The witnesses returned to the store and relayed the plate number to Kuykendall who was already on the telephone talking to the police. A description of appellant, his jacket and gun, the truck, and the license plate number 1 was broadcast over the police radio.

Within a few minutes, a police officer spotted the truck and stopped it. Appellant and Nelson were returned to the store parking lot. No one recognized Nelson, but the witnesses identified appellant as the man they had seen in or running from the store.

Appellant was tried separately from Nelson. Appellant's defense was temporary insanity brought on by hypoglycemia and the use of alcohol and drugs. This appeal follows from his convictions.

JURY MISCONDUCT

The jury deliberated over two days. During the night between the two sessions, one juror was told by an unidentified third party that if appellant was found not guilty by reason of insanity, he would go free. This juror passed along this information to the rest of the jury at the next day's deliberations.

A new trial may be granted whenever a juror commits misconduct by "[r]eceiving evidence not properly admitted during the trial." Ariz.R.Crim.P. 24.1(c)(3)(i). In this context, "evidence" means any information likely to be considered by the jury in determining the guilt or innocence of the defendant. Thus, the rule encompasses both information received by the jury that could generally be admissible but was not admitted at the trial in question and information that is always inadmissible We need first determine whether the instant case fits within the bounds of Rule 24.1(c)(3)(i). In appellant's case, the information received concerned punishment and the disposition of appellant should he be found insane. Under Arizona law, this information is always inadmissible. See State v. Jensen, 111 Ariz. 408, 531 P.2d 531 (1975). Appellant's defense was temporary insanity, and a form of verdict for not guilty by reason of insanity was given to the jury. The information came from outside the jury. 3 Under these circumstances, the information received by the juror and transmitted to the rest of the jury is of the type likely to be considered in the guilt-innocence determination. The case, therefore, falls within Rule 24.1(c)(3)(i).

because it is legally irrelevant, too prejudicial, or the subject of an exclusionary rule or statute. 2

When a case falls within Rule 24.1(c)(3)(i), "the defendant is entitled to a new trial if it cannot be concluded beyond a reasonable doubt that the extrinsic evidence did not contribute to the verdict." State v. Poland, 132 Ariz. 269, ---, 645 P.2d 784, 798 (1982). We cannot say beyond a reasonable doubt that the information concerning the effect of an acquittal by reason of insanity did not contribute to the verdict. This Court in Poland held that a jury receiving extraneous information as to prior federal convictions arising out of the same acts for which a defendant is now on trial in state court is "inherently prejudicial." We now hold that it is also inherently prejudicial to a defendant when a jury receives information that the defendant will go unpunished and untreated if found not guilty by reason of insanity. The probability is too great that a jury will rely on such legally irrelevant information to convict a defendant, regardless of sanity at the time of the crime, so that his or her crime will not go unpunished.

The jury was instructed, "In deciding whether the defendant is guilty or not guilty, do not consider the possible punishment." The state argues that because of this instruction, the jury would not have considered what would happen to appellant if it acquitted him because of insanity. The burden on the state is to prove beyond a reasonable doubt that the evidence improperly received did not contribute to the verdict. Poland, supra. It is quite possible that the jury would have interpreted the "punishment" instruction to apply only to the punishment imposed if appellant was convicted and not to the "nonpunishment" the jury believed appellant would receive if he was acquitted by reason of insanity. If the jury did believe the instruction would apply, the fact that one juror relayed to the other jurors the extraneous information about a not guilty by reason of insanity verdict implies that the instruction was not followed. The state has not carried its burden. For these reasons, a reversal of appellant's conviction and a remand for a new trial is necessary in this matter.

Appellant argues that he should have received an instruction correctly stating what would have happened had he been acquitted by reason of insanity (civil commitment proceedings would have begun under Ariz.R.Crim.P. 25) and that this would have avoided the problem caused by the juror misconduct. We disagree and adhere to our decisions in State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (1977); State v. Jensen, 111 Ariz. 408, 531 P.2d 531 (1975); and State v. Peats, 106 Ariz. 254, 475 P.2d 238 (1970). The disposition of a defendant upon the jury's verdict has nothing to do with the defendant's guilt or innocence and should

never be considered by the jury in its deliberations.

ISSUES PREVIOUSLY DETERMINED

Appellant raises objections to: (1) the destruction of the tape recordings of the police radio broadcasts concerning his case; (2) the warrantless search of his codefendant's truck; and (3) the "show up" identification of him at the liquor store parking lot. We dealt with these issues previously when we affirmed his codefendant's convictions. State v. Nelson, 129 Ariz. 582, 583, 633 P.2d 391 (1981). Appellant has not persuaded us that we should change our Nelson rulings that the destruction of the tapes and the warrantless search were not error.

In Nelson, we stated in dictum that the show up identification procedure used in this case was proper. We now hold it was proper as applied to appellant. This Court has consistently held that show up identification procedures are permissible if they take place near in time to criminal offense or at the scene of the crime. State v. Hicks, 133 Ariz. ---, 649 P.2d 267 (1982); State v. Daniels, 106 Ariz. 224, 474 P.2d 815 (1970). Such a procedure allows the police to either have the culprit identified while the witness has a fresh mental picture of him or her or else release an innocent person and continue searching for the culprit before he or she escapes detection. State v. Gastelo, 111 Ariz. 459, 532 P.2d 521 (1975). A show up identification will be admissible if reliable, and the factors to examine in determining reliability are: (1) the amount of time elapsed between the observation and the identification; (2) the accuracy of description given by the witness before the show up; (3) the degree of the witness' certainty as to the accuracy of the identification; (4) the witness' opportunity to view the culprit at the time of the crime; and (5) the witness' degree of attention at the time of the crime. Hicks, supra.

There was no undue suggestion in the instant case. The witnesses were not grouped together in the parking lot but were scattered around it. The show up occurred within minutes of the crime and at the location of the crime. Appellant generally fit the description given by the witnesses. All of the witnesses were first shown Nelson, the driver, whom none could identify. Then the witnesses were shown appellant whom Kuykendall identified as the assailant in the store and whom the other witnesses identified as the man they saw run from the store to the truck parked at the car wash. Although none of the witnesses had an opportunity to view the culprit for long, they all had a reason to have their attentions riveted on him. The procedure was properly conducted and was sufficiently reliable.

PROSECUTOR'S CLOSING ARGUMENT

Appellant argues that the following portion of the prosecutor's closing argument deprived him of a fair trial because it "pandered to the juror's fears as to the defendant's dangerousness" if he was acquitted by reason of insanity and released:

"I am glad that Mr. McLoughlin isn't a...

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