State v. Pawley

• Citation: 123 Ariz. 387,599 P.2d 840
• Decision Date: 03 July 1979
• Docket Number: No. 1,CA-CR,1
• Parties: STATE of Arizona, Appellee, v. Bernard Ross PAWLEY, Appellant. 3150.
• Court: Court of Appeals of Arizona

Page 840

599 P.2d 840

123 Ariz. 387

STATE of Arizona, Appellee, v. Bernard Ross PAWLEY, Appellant.

No. 1 CA-CR 3150.

Court of Appeals of Arizona, Division 1, Department B.

July 3, 1979.

Rehearing Denied Aug. 15, 1979.

Review Denied Sept. 13, 1979.

John A. LaSota, Jr., former Atty. Gen. by William J. Schafer, III, Chief Counsel, Crim. Div., Gerald R. Grant, Asst. Attys. Gen., Phoenix, for appellee

Ross P. Lee, Maricopa County Public Defender by Anne W. Kappes, Deputy Public Defender, Phoenix, for appellant.

OPINION

JACOBSON, Judge.

After a jury trial, the defendant, Bernard Ross Pawley, was found guilty of the crimes of possession of marijuana for sale and possession of a narcotic drug. He appeals, presenting the following issues for consideration:

(1) Did the trial court improperly refuse to strike for cause three prospective jurors who had law enforcement backgrounds?

(2) Was the defendant entitled to be present when the court and counsel discussed a note received from the jury after the jury began its deliberations?

(3) Did the trial court err in refusing an in camera inspection of an exhibit previously admitted into evidence?

(4) Was defendant denied effective assistance of counsel?

(5) Was there sufficient evidence to submit to the jury the question of defendant's knowledge that Percodan was a narcotic?

The conviction for possession of marijuana for sale is reversed; the conviction for possession of a narcotic drug is affirmed.

On April 1, 1977, Phoenix police officers searched Pawley's apartment pursuant to a search warrant. Pawley was not present at the time of the search. Seized in the search, and later admitted into evidence at the trial, was approximately two and one-half pounds of marijuana leaf, stems and seeds (which formed the basis of defendant's conviction for possession for sale). Also seized and admitted were several letters, a quantity of various-sized plastic bags, a set of scales, a sifter, a phone bill, Pawley's driver's license, an "imitation" burlap bag, some wrapping paper, a door key, some cigarette rolling papers, and three yellow tablets (later identified as Percodan and which formed the basis of the conviction for possession of a narcotic drug).

The marijuana was discovered by the officers in various locations throughout Pawley's kitchen and bedroom, and comprised sixteen exhibits at trial. The seizures ranged in size from the smallest of 419 milligrams, to the largest of 367 grams. Many of the quantities of marijuana were already in individual containers when seized (i. e., a bag, a jar), but a substantial quality was discovered loose by the officers and bagged by them. For example, the 367 gram quantity was discovered loose in a drawer in the bedroom of Pawley's apartment.

When Pawley returned to his apartment complex, he was placed under arrest. Pawley admitted that the apartment where the seizures occurred was his, and admitted to smoking marijuana. His defense at trial was consistent with what he told the police officers at the time of his arrest that he was a heavy user of marijuana, smoked thirty marijuana cigarettes a day, but did not sell marijuana.

Further facts will be noted as necessary for resolution of the issues on appeal.

THE JURY PANEL

Pawley first assigns error in the trial court's refusal to strike from the jury panel, for cause, three persons with connections to law enforcement agencies. One of the prospective jurors was a deputy with the Maricopa County Sheriff's Office, assigned to the fugitive section. The second panel member was formerly a policeman in California and at the time of trial was a reserve officer with the Glendale, Arizona Police Department. Finally, one of the panel members disclosed on Voir dire that he was a computer programmer at time of trial, but had been a deputy sheriff in Los Angeles County until 1971.

Defense counsel moved to strike these three potential jurors for cause, based on their prior and current connections with law enforcement. The trial court denied the motion. On appeal, Pawley argues that the trial court's denial of the motion was reversible error as it forced him to exhaust his peremptory challenges in order to exclude the three panel members.

A challenge for cause is an appropriate means of disqualifying a potential juror where "there is reasonable ground to believe that a juror cannot render a fair and impartial verdict . . . ." Rule 18.4(b), Arizona Rules of Criminal Procedure. However, the trial court is in the best position to make that determination, and we will not overrule it absent a clear abuse of discretion. State v. Rose, 121 Ariz. 131, 589 P.2d 5 (1978); State v. Narten, 99 Ariz. 116, 407 P.2d 81 (1965), Cert. denied, 384 U.S. 1008, 86 S.Ct. 1985, 16 L.Ed.2d 1021 (1966).

A trial court is not required to grant a motion to strike for cause merely because a potential juror is shown to be involved in law enforcement. See State v. Brosie, 24 Ariz.App. 517, 540 P.2d 136 (1975), Aff'd, 113 Ariz. 329, 553 P.2d 1203 (1976). Standing alone, such an involvement does not compel the conclusion that the panel member will be unfair or partial. State v. Radi, Mont., 578 P.2d 1169 (1978).

There is nothing in the record of this case to indicate that the three panel members sought to be excluded for cause were not, in fact, fair and impartial. Each potential juror was questioned by the trial judge regarding his ability to be fair and impartial, in light of his professional background. Each stated his belief that he could judge the evidence fairly and impartially. While such statements are not necessarily controlling, See Priestly v. State, 19 Ariz. 371, 171 P. 137 (1918), with nothing on the record to support defendant's position other than the professional backgrounds, the ruling of the trial court will not be disturbed on appeal. See State v. Arnett, 119 Ariz. 38, 579 P.2d 542 (1978).

COMMUNICATION BY COURT WITH JURY

Pawley next contends a communication between the court and the jury which took place after the jury had retired, outside his presence and without notice to him, constituted reversible error.

After the jury had retired, a note was sent from the jury to the trial judge. It read: "Can we open the plastic bag containing a letter, item 12-A?" The note was signed by the jury foreman.

A proceeding was conducted at which the judge, counsel for the state, counsel for the defendant and a court reporter were present. A transcript of the proceeding was made. After hearing arguments from counsel on the proposed response to the jury's note, the court sent a note to the jury reading: "Mr. (jury foreman), the answer is 'yes'; however, please return all contents in the plastic envelope. Stan Goodfarb, Judge." There is nothing in the record to indicate that Pawley was present at this time or had been notified of the note from the jury, and he urges that these omissions are reversible error.

The general rule in Arizona is often stated that a trial judge commits error in a criminal case by communicating with jurors after they have retired to deliberate, unless counsel and the defendant have been notified and given an opportunity to be present. State v. Lamb, 116 Ariz. 134, 568 P.2d 1032 (1977); State v. Robin, 112 Ariz. 467, 543 P.2d 779 (1975); State v. Werring, 111 Ariz. 68, 523 P.2d 499 (1974); State v. Burnetts, 80 Ariz. 208, 295 P.2d 377 (1956); State v. Corrales, 121 Ariz. 104, 588 P.2d 846 (App.1978). However, a review of these cases is necessary to determine whether the presence of the defendant is always mandated.

The rule that the defendant be given notice and an opportunity to appear originated in Arizona in those cases where the trial judge physically entered the jury room and orally communicated with the jury, the rationale being that under such circumstances, the likelihood of the judge influencing the jury out of the presence of the defendant is so great that actual prejudice will be presumed. State v. Burnetts, supra; State v. Werring, supra.

The rule requiring that the defendant be given an opportunity to be present has also been invoked in those cases where the defendant was not notified of the communication with the jury and an inadequate record was made at the time of the proceedings. See Bustamante v. Eyman, 456 F.2d 269 (9th Cir. 1972); State v. Corrales, supra; cf. State v. Davis, 117 Ariz. 5, 570 P.2d 776 (App.1977) (under circumstances of case, communications between trial judge and jury, without notice to defense, not reversible error where complete record of communications kept). None of the dangers of having to base an appeal on an incomplete record are present here. The trial judge in this case scrupulously preserved the record. When the note was received, he notified defense counsel and the prosecuting attorney, and held a proceeding which was transcribed by a court reporter. After the note was read into the record, counsel argued their respective positions regarding the appropriate response, then the trial judge drafted a reply to the jury and read the reply into the record. If the trial judge erred, his error is perfectly documented for scrutiny on appeal.

The rule requiring an opportunity for the defendant to be present has also been applied in situations where the jury, after retiring, requests that certain instructions be repeated, See Bustamante v. Eyman, supra; or asks for additional substantive instructions, See Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 853 (1919); Rule 19.2, Arizona Rules of Criminal Procedure; or requests that portions of the record be repeated, or questions regarding the evidence be answered, See State v. Perez, 115 Ariz. 30, 563 P.2d 285 (1977); State v. Robin, supra; State v. Armenta, 112 Ariz. 352, 541 P.2d 1154 (1975). In each of these cases, a personal confrontation occurs between the court and the jury potentially touching upon the fundamental relationship between an accused, the court, and the people...