State v. Roberts, 5349-PR

• Decision Date: 12 March 1982
• Docket Number: No. 5349-PR,5349-PR
• Parties: STATE of Arizona, Appellee, v. Charles William ROBERTS, Appellant.
• Court: Arizona Supreme Court

Page 858

642 P.2d 858

131 Ariz. 513

STATE of Arizona, Appellee, v. Charles William ROBERTS, Appellant.

No. 5349-PR.

Supreme Court of Arizona.

March 12, 1982.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Frank Dawley, Asst. Attys. Gen., Phoenix, for appellee.

Richard L. Thompson, Phoenix, for appellant.

HOLOHAN, Chief Justice.

The defendant, Charles William Roberts, was convicted of kidnapping and extortion, both involving the use of a deadly weapon in violation of A.R.S. §§ 13-1304, 13-1804 and 13-604. The defendant appealed raising three issues: (1) whether the jury was placed in a coercive atmosphere; (2) whether the consecutive sentences imposed were barred by A.R.S. § 13-116; and (3) whether there was sufficient evidence to support defendant's conviction for the offense of extortion involving the use of a deadly weapon. The court of appeals held that consecutive sentences were legally imposed and that there was sufficient evidence to support the conviction for extortion involving the use of a deadly weapon. The court of appeals, however, reversed the conviction on the first issue, finding that the jury was placed in a coercive atmosphere. State v. Roberts, Ariz., 642 P.2d 864 (App.1981).

We granted review for the limited purpose of considering the first issue, whether the jury was subjected to a coercive atmosphere. We accept and approve that portion of the opinion of the court of appeals which resolves the other two issues in the case. The portion of the opinion of the court of appeals dealing with the first issue is vacated.

The essential facts are that due to the defendant's voluntary absence, he was tried in absentia. The trial lasted four days, during which the state called ten witnesses and introduced over 30 exhibits. The defense did not call any witnesses but cross-examined the state's witnesses at length. The jury retired to begin deliberations at 4:25 P.M. on February 26, 1980 and was excused for the night at 6:00 P.M. Deliberations resumed the following day at 10:00 A.M. At 1:50 P.M. the trial court called the jurors and counsel into open court where the following dialogue took place:

THE COURT: Ladies and gentlemen, my secretary has advised me that the foreman has indicated that it appears the jury is hopelessly deadlocked.

Who is the foreman?

THE FOREMAN: I am, sir.

THE COURT: Sir, does it appear there is no reasonable probability that the jury can agree on a verdict?

THE FOREMAN: I posed that question last night, this morning again, and again right after we came back from lunch. We have honestly talked back and forth, deliberated very conscientiously, and we cannot come to a unanimous decision.

THE COURT: May I ask, and don't disclose which side it is on, but what is the split, 11 to one, five to five or what?

THE FOREMAN: 11 to one. It has been that way since yesterday evening.

THE COURT: Why don't you all give it a little while longer. There is a lot of evidence, so give it a while longer and see if you can't reach a verdict. And if you just can't reach a point where it appears there is no reasonable probability that you can, let us know again.

Thank you.

The jury returned verdicts of guilty at 3:15 P.M.

There is a split of authority on the question of the propriety of a trial court's inquiry into the jury's numerical division. The United States Supreme Court has held that such an inquiry is in itself reversible error. Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). The reasons for the per se rule are threefold: the inquiry serves no useful purpose that cannot be attained through less intrusive questions; such inquiry has a tendency to be coercive; and it interferes with the proper relation of the court to the jury. Id.; United States v. Hayes, 446 F.2d 309 (5th Cir. 1971); Jacobs v. United States, 279 F.2d 826 (8th Cir. 1960). However, despite Brasfield's declaration that it is "essential to the fair and impartial conduct of the trial that the inquiry itself should be regarded as ground for reversal," Brasfield v. United States, supra 272 U.S. at 450, 47 S.Ct. at 135, 71 L.Ed. at 346, the rule has not been held to be inflexible. Beale v. United States, 263 F.2d 215 (5th Cir. 1959); Butler v. United States, 254 F.2d 875 (5th Cir. 1958).

Numerous courts have held that the Brasfield rule is not of constitutional dimensions, but it is a rule of judicial administration, based on the supreme court's supervisory powers over the federal courts, and thus is not binding on the states. E.g., Cornell v. Iowa, 628 F.2d 1044 (8th Cir. 1980), cert. denied, 449 U.S. 1126, 101 S.Ct. 944, 67 L.Ed.2d 112 (1981); Ellis v. Reed, 596 F.2d 1195 (4th Cir. 1979), cert. denied, 444 U.S. 973, 100 S.Ct. 468, 62 L.Ed.2d 388 (1979); White v. State, 95 Nev. 881, 603 P.2d 1063 (1979); Sharplin v. State, 330 So.2d 591 (Miss.1976). Indeed, only the states of Michigan and New Mexico have held that Brasfield was constitutionally grounded. See State v. Aragon, 89 N.M. 91, 547 P.2d 574 (1976), cert. denied, 89 N.M. 206, 549 P.2d 284 (1976); People v. Wilson, 390 Mich. 689, 213 N.W.2d 193, 77 A.L.R.3d 765 (1973). See also Commonwealth v. Robinson, 102 Pa.Super. 46, 156 A. 582 (1931) (following Brasfield but not addressing whether it was constitutionally based). New Mexico, however, recently overruled Aragon to join the majority in rejecting Brasfield's per se rule and adopting a "totality of the circumstances" or "cumulative effect" rule. State v. Rickerson, 95 N.M. 666, 625 P.2d 1183 (1981).

Under the totality of the circumstances rule, convictions will be reversed if the cumulative effect of the trial court's actions had a coercive influence upon the jury. E.g., Cornell v. Iowa, supra; White v. State, supra; Sharplin v. State, supra; People v. Austin, 185 Colo. 229, 523 P.2d 989 (1974); State v. Loberg, 73 S.D. 301, 42 N.W.2d 199 (1950). What conduct amounts to coercion is particularly dependent upon the facts of each case. White v. State, supra; People v. Carter, 68 Cal.2d 810, 69 Cal.Rptr. 297, 442 P.2d 353 (1968).

While we recognize that legitimate purposes can be served by an inquiry into the numerical division of a jury, see People v. Carter, supra; Sharplin v. State, supra, we believe that there is more danger of possible prejudice than any possible good which may result in employing the practice. We, therefore, condemn the use of such inquiry, and we recommend that there be no inquiry into the numerical division of the jury. The inquiry by the trial judge should be limited to asking whether progress has been made toward reaching an agreement and what the likelihood is for future progress. Lowe v. People, 175 Colo. 491, 488 P.2d 559 (1971).

In the instant case did the inquiry into the numerical division of the jury create a coercive atmosphere? We hold that it did not. We do not accept the Brasfield per se rule, believing that the totality of circumstances rule is the more just and sensible. Reviewing the circumstances presented, we do not believe the mere inquiry into the numerical standing of the jury resulted in any coercion of the jury.

It is contended, however, that the trial court's statement that: "There is a lot of evidence, so give it a while longer and see if you can't reach a verdict" was coercive, especially because the only evidence in this case had been the state's evidence. This position, however, does not take into account what is shown by the record.

The trial court's statement appears to be nothing more than a recognition of the fact that the jury had a large amount of facts to sift through before reaching a verdict. There had been a four-day trial with over 30 exhibits admitted in evidence. Although all the witnesses were called by the state, the defense counsel conducted extensive cross-examination of the witnesses, particularly the victim. Moreover, during an in-chambers discussion, defense counsel indicated that he would be calling the prosecution's chief witness in his case in chief. (RT of February 26, 1980 at 65.) Later in open court and in the jury's presence, defense counsel stated: "Your Honor, at this time the chief witness for the defense, already having testified on cross-examination, the defendant has nothing else to show the court. I would now rest." (RT of February 26, 1980 at 72.) It is, therefore, clear that merely because the defense chose not to present a separate case, the evidence was not all state's evidence.

In addition the prosecution and defense presented arguments of some length reviewing the evidence and issues in the case.

Considering the totality of the circumstances, we hold that the trial court's remark about a lot of evidence was not prejudicial or coercive. Nor did the combination of the inquiry into the numerical division and the remark about a lot of evidence result in coercion of the jury.

The opinion of the court of appeals is vacated in part and approved in part. The judgment of the superior court is affirmed.

GORDON, V. C. J., and HAYS and CAMERON, JJ., concur.

FELDMAN, Justice, dissenting.

I agree with the adoption of the "totality of the circumstances" rule, but must dissent from the result because the totality of circumstances here leads to the inescapable conclusion that the cumulative effect of the trial court's actions influenced the jury.

In reaching this conclusion, the first circumstance to be considered is the making of the inquiry itself. As the majority opinion notes, the trial court's question regarding numerical division of the jury is condemned because "there is more danger of possible prejudice than any possible good which may result in employing the practice." The importance which should be placed on this becomes clear when one notes that in federal criminal cases the inquiry alone results in automatic reversal. Brasfield v. United States, 272 U.S. 448, 450, 47 S.Ct. 135, 71 L.Ed. 345, 346 (1962).

The second circumstance which should be noted is the fact that the answer to...