State v. Miller, No. CR-92-0287-PR

• Court: Supreme Court of Arizona
• Writing for the Court: ZLAKET; FELDMAN; CORCORAN; MARTONE
• Citation: 178 Ariz. 555,875 P.2d 788
• Parties: STATE of Arizona, Appellee, v. Rudy Robert MILLER, Appellant.
• Docket Number: No. CR-92-0287-PR
• Decision Date: 14 June 1994

Page 788

875 P.2d 788 178 Ariz. 555 STATE of Arizona, Appellee,
v.
Rudy Robert MILLER, Appellant. No. CR-92-0287-PR. Supreme Court of Arizona. June 14, 1994.

[178 Ariz. 556]

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Tom Henze and Tracey Westerhausen, Phoenix, for appellant Miller.

Grant Woods, Arizona Atty. Gen. by Paul J. McMurdie, Chief Counsel and Diane M. Ramsey, Asst. Atty. Gen., Phoenix, for appellee State of Ariz.

OPINION

ZLAKET, Justice.

Defendant was convicted of endangerment and unlawful flight from a law enforcement vehicle. The trial court suspended defendant's sentence, placed him on concurrent three-year terms of probation, and imposed a $150,000 fine plus a $100 felony assessment penalty. The court of appeals affirmed. State v. Miller, 173 Ariz. 421, 844 P.2d 588 (Ct.App.1992). We granted review to decide whether the trial court abused its discretion in refusing to hold an evidentiary hearing on defendant's claim of jury misconduct. We hold that it did. We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3), and A.R.S. § 12-120.24.

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[178 Ariz. 557] At the close of the evidence, the trial judge dismissed an alternate juror. After he was excused, the alternate left a note on the windshield of a remaining juror's car, which said either "He's guilty" or "My vote is guilty." The juror, Tucker, received this note during the evening recess after deliberations had begun. He did not bring it to the court's attention. The jury returned its verdict the next day. The prosecutor learned about the note during a post-trial conversation with the entire jury. He then disclosed this information to defense counsel, who promptly filed a motion for new trial and request for evidentiary hearing.

At argument on the motion, the prosecutor stated that Tucker told him the note did not affect his decision. He also advised the court that the other jurors had said they only found out about the note after reaching their verdict. The state therefore opposed an evidentiary hearing on the matter. The court rejected the defense request, refused to take testimony or question any of the jurors, and denied the motion for new trial.

It is undisputed that a criminal defendant is entitled to be tried by an impartial jury. U.S. Const. amends. VI, XIV; Turner v. State of Louisiana, 379 U.S. 466, 471-72, 85 S.Ct. 546, 549, 13 L.Ed.2d 424 (1965). "The requirement that a jury's verdict 'must be based upon the evidence developed at the trial' goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury." Id. at 472, 85 S.Ct. at 549 (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961)). The danger of compromising this integrity is never greater than when the process is contaminated by outside influences. See id.; Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir.1980), cert. denied, 450 U.S. 1035, 101 S.Ct. 1749, 68 L.Ed.2d 231 (1981).

In such a situation, the court's response should be "commensurate with the severity of the threat posed." United States v. Thomas, 463 F.2d 1061, 1063 (7th Cir.1972). In this case, the substantial risk of prejudice demanded something more than what the trial court did. Any private communication, contact or tampering with a juror gives rise to a strong presumption that the verdict has been tainted. Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954); Mattox v. United States, 146 U.S. 140, 148-50, 13 S.Ct. 50, 52-53, 36 L.Ed. 917 (1892). The fact that the communication here related to the ultimate issue in the case--defendant's guilt or innocence--should have persuaded the judge that further inquiry was necessary.

Without questioning the jury, the court could not have known whether other jurors knew of the note or received similar communications from the alternate, and in either case, whether they were improperly influenced by him. According to defense counsel, the alternate seemed to have had a good relationship with the other jurors as well as with Tucker. Even the prosecutor acknowledged in his remarks to the trial court that the alternate had apparently been well liked by his peers. And the fact that the alternate had previously heard all the evidence may have caused Tucker or the other jurors to place more weight on his opinion than they would otherwise accord a stranger. Under these circumstances, the possibility of improper influence certainly warranted investigation. Thus, we hold that the trial court abused its discretion in denying the request for an evidentiary hearing.

The difficulty here is in fashioning an appropriate remedy, as this trial occurred in June and July of 1990. The arguments against ordering a hearing at this late date are understandable. Memories fade with time. Assuming the jurors can be reassembled, testimony obtained now might be suspect, and its reliability subject to challenge. Moreover, the judge who saw the witnesses and heard the case on its merits has long since retired. Ordering a hearing now will leave another judge who had no involvement in the trial with the difficult task of determining whether the communication prejudiced the verdict.

We have previously recognized that in some situations, lengthy delay necessitates a new trial. See, e.g., State v. Hart, 110 Ariz. 55, 514 P.2d 1243 (1973) (twelve-year delay and death of trial judge made a new trial necessary, as a hearing to reconstruct the transcript would have been futile). Other

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[178 Ariz. 558] courts have come to similar conclusions in juror misconduct cases, see, e.g., Thomas, 463 F.2d 1061 (two-year delay on claim that prejudicial newspaper article was in jury room and used by some jurors to persuade others); United States v. Rhodes, 556 F.2d 599 (1st Cir.1977) (unspecified, lengthy delay on reporter's allegation that he saw a juror with a newspaper and was told by several others that the jury had discussed publicity surrounding defendant), as well as in other contexts. See, e.g., United States v. Ives, 574 F.2d 1002 (9th Cir.1978) (six-year delay in determination of defendant's competency to stand trial); State v. Rodriguez, 27 Ariz.App. 689, 558 P.2d 717 (1976) (three-year delay in competency hearing); United States v. David, 511 F.2d 355 (D.C.Cir.1975) (two-year delay in determination of whether jury trial waiver was knowing and voluntary); Mares v. United States, 383 F.2d 805 (10th Cir.1967) (eleven-month delay involving hearing on potential prejudicial effect of trial publicity).

The contrary view, that delay should not preclude a hearing where jurors are available, is not without support. See United States v. Thompson, 908 F.2d 648 (10th Cir.1990), opinion modified on reh'g per curiam, id. at 655 (1990). Thompson involved allegations that jurors had newspapers containing harmful articles in their possession. As in this case, the trial court erred in failing to hold a hearing to determine if defendant was prejudiced. Although the circuit court's initial remedy was a new trial, it later modified its opinion to instead remand for a determination of whether a hearing years later could, in fact, elicit reliable responses or whether the delay made a new trial inevitable.

A majority of this court agrees with the foregoing approach. ¹ While the delay in this case may have rendered a productive hearing at this point unlikely, the lower court is in the best position to determine if the jurors can be reassembled and whether their memories are sufficiently reliable to ensure that this defendant received a fair trial. Justice Corcoran's special concurrence suggests that it may not be necessary for the trial judge to reassemble and interrogate all of the jurors. We leave that question for another day, noting only that the improper influence of even one juror taints a verdict. Whitson v. State, 65 Ariz. 395, 399-400, 181 P.2d 822, 824-25 (1947); Lovett v. State, 516 A.2d 455, 475 (Del.1986), cert. denied, 481 U.S. 1018, 107 S.Ct. 1898, 95 L.Ed.2d 504 (1987); United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.1977), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977).

In Arizona, juror misconduct warrants a new trial if the defense shows actual prejudice or if prejudice may be fairly presumed from the facts. State v. Vasquez, 130 Ariz. 103, 105, 634 P.2d 391, 393 (1981) (emphasis added). Prejudice may be presumed here, because "[i]n a criminal case, any private

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[178 Ariz. 559] communication, contact or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial...." Remmer, 347 U.S. at 229, 74 S.Ct. at 451. This presumption is rebuttable, and the burden rests with the government to show that the third party communication did not taint the verdict. Id. ²

Justice Martone's concurrence suggests that Remmer may be inapplicable here because the communication came from an alternate juror, which he asserts is somehow less egregious. His conclusion is based on the premise that alternate jurors are not truly discharged until after the verdict is reached. However, nothing in the record before us, which is incomplete on this issue, indicates that this alternate was only "conditionally excused" as Justice Martone contends. ³ Furthermore, there is no provision in the rules for such a practice. Rather, the Arizona Rules of Criminal Procedure make it abundantly clear that a real distinction exists between jurors and alternates once deliberations begin. ⁴

Justice Martone also indicates that some judges now encourage jurors to discuss the case during trial,...