State v. Roberts, 1

• Decision Date: 30 April 1981
• Docket Number: No. 1,CA-CR,1
• Citation: 131 Ariz. 519,642 P.2d 864
• Parties: STATE of Arizona, Appellee, v. Charles William ROBERTS, Appellant. 4697.
• Court: Arizona Court of Appeals

Page 864

642 P.2d 864

131 Ariz. 519

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

No. 1 CA-CR 4697.

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

April 30, 1981.

Rehearing Denied June 17, 1981.

Review Granted July 14, 1981.

OPINION

OGG, Judge.

The primary issue in this appeal is whether the jury was placed in a coercive atmosphere. Two additional issues are presented: whether the consecutive sentences imposed were barred by A.R.S. § 13-116, and whether there was sufficient evidence to support appellant's conviction for the offense of extortion involving the use of a deadly weapon.

Appellant was indicted for the offenses of kidnapping involving the use of a deadly weapon, in violation of A.R.S. §§ 13-1304 and 13-604, and extortion involving the use of a deadly weapon, in violation of A.R.S. §§ 13-1804 and 13-604. On the day set for trial, appellant notified his counsel that he would not be present for the first day of trial. He voluntarily absented himself for the remainder of the trial, and was thus tried in absentia.

Trial began before a jury on February 20, 1980. The evidence presented showed that on the evening of August 23, 1979, appellant forced the victim, Ernesto Tercero, at gunpoint into appellant's car. Appellant was apparently accompanied by his wife. Tercero was bound and blindfolded, and was driven around in that condition for several hours before he was taken to a house located in Glendale. He was held at the house in Glendale at gunpoint by appellant until he was freed by the police on August 25, 1979.

The police ultimately located Tercero through a telephone trace on the phone of Tercero's ex-wife, Betty Tercero. On August 24 and 25, 1979, appellant placed a number of phone calls to the home of Betty Tercero. During the phone calls, Tercero spoke with his ex-wife and his brother, and told them that his captors would kill him if they could not raise and deliver to appellant $150,000 by August 25, 1979. During one of the conversations on August 25, Tercero's brother stated that they had come up with $63,000 and asked to speak to appellant. At that time appellant spoke directly to Tercero's brother and threatened to kill Tercero if his brother did not cooperate. Tercero testified that during at least some of the phone calls, appellant was armed with a gun which Tercero was able to see through the blindfold.

After police had traced the origin of the phone calls, they arrived at the residence in Glendale where Tercero was being held. They arrested appellant outside the residence, and found Tercero inside the residence bound and gagged in a closet.

The case was submitted to the jury for deliberation on February 26, 1980 at 4:25 p. m. The jury was unable to reach a decision and was excused at 6:00 p. m. On February 27, 1980, the jury resumed deliberations at 10:00 a. m., and at 1:50 p. m. indicated that it was deadlocked. The trial court called the jurors into open court with counsel present, and the following exchange occurred:

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 that 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. (emphasis added) Counsel for the appellant immediately made an objection to the court in chambers as follows:

APPELLANT'S COUNSEL: I would just like to make an objection on sending the jury back in after they said they were hopelessly deadlocked on the grounds that it tends to indicate to them that they are going to have to go back until they do reach a decision.

At 3:15 p. m., the jury returned with a unanimous verdict of guilty on each count. Appellant was sentenced in absentia on April 3, 1980 to serve a term of 21 years in the Arizona State Prison from the date he was taken into custody on count one, and on count two, to serve a term of 21 years, said term to run consecutive to the term imposed on count one. Appellant timely filed his notice of appeal from the convictions and sentences.

Appellant contends that the trial court erred in inquiring as to the split of the jury and in giving the jury what appellant terms a "dynamite" charge regarding the state of the evidence.

In Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed.2d 345 (1926), an inquiry into the numerical division of a jury was held to be error per se. Some jurisdictions have noted that the Brasfield decision was based on the Supreme Court's supervisory powers and not on constitutional interpretation, and have refused to follow Brasfield. See Marsh v. Cupp, 392 F.Supp. 1060 (1975 D.C.Or.), affirmed 536 F.2d 1287 (Ninth Circuit), cert. den. 429 U.S. 981, 97 S.Ct. 494, 50 L.Ed.2d 590. Other jurisdictions, however, have adopted the Brasfield rule as one of constitutional proportions. See State v. Aragon, 89 N.M. 91, 547 P.2d 574 (1976). See also, Annot., Inquiry as to Numerical Division of Jury, 77 A.L.R.3d 769 (1977).

No court in Arizona has yet held that a communication to a jury requesting a numerical division is reversible error per se. Nor do we address that specific issue herein. We note that in the Bench Book for Trial Judges, 1979 Revision, Section 8 g. at page 39, there is a suggested form to be used when there appears to be a hung jury situation. In such form, the judge inquires of the jury foreman about the number of ballots taken and the numerical vote on each ballot without reference to how the vote stands on guilt or innocence. We can only sound a word of warning to trial judges that such inquiry is a dangerous practice if under the facts there is later any coercion placed upon the jurors to reach a verdict.

It would appear that the better practice would be for the trial judge not to ask for the division but rather to make inquiry as to whether any progress has been made toward reaching an agreement and what the likelihood is for future progress. See Lowe v. People, 175 Colo. 491, 488 P.2d 559 (1971).

In State v. Streyar, 119 Ariz. 607, 583 P.2d 263 (App.1978), Division Two held that a communication requesting the numerical division of the jury, in the absence of the defendant and counsel and without notice to him, was reversible error because of the possibility of the coercive effect of the inquiry. Accord, State v. Corrales, 121 Ariz. 104, 588 P.2d 846 (App.1978). While the inquiry occurred in the instant case in open court, with counsel for both sides present, we still conclude that the possibility of the coercive effect of the communication...