State v. Rocco

• Decision Date: 30 March 1978
• Docket Number: No. 1,CA-CR,1
• Citation: State v. Rocco, 579 P.2d 65, 119 Ariz. 27 (Ariz. App. 1978)
• Parties: STATE of Arizona, Appellee, v. Frank ROCCO, Jr., Appellant. 2975.
• Court: Arizona Court of Appeals

Page 65

579 P.2d 65

119 Ariz. 27

STATE of Arizona, Appellee, v.Frank ROCCO, Jr., Appellant.

No. 1 CA-CR 2975.

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

March 30, 1978.

Rehearing Denied April 25, 1978.

Review Denied May 31, 1978.

Bruce E. Babbitt, former Atty. Gen. by William J. Schafer, III, Chief Counsel, Criminal Division, and Georgia B. Ellexson, Asst. Atty. Gen., Phoenix, for appellee.

Aspey, Watkins & Diesel by Harold L. Watkins, Flagstaff, for appellant.

OPINION

NELSON, Judge.

Frank Rocco, Jr. brings this appeal from his conviction on one count of rape, one count of kidnapping, and one count of commission of a lewd and lascivious act.Appellant raises three issues for our review (1) Did the trial court commit reversible error by refusing to discharge the entire jury panel after some prospective jurors had observed appellant in handcuffs while he was being transported from jail to the courtroom?

(2) Did the entry into the jury room of an alternate juror and her remarks therein require the trial court to declare a mistrial?

(3) Was it an abuse of discretion for the trial court to refuse a new trial on grounds of jury misconduct and cumulative error?

TRANSPORTATION OF THE APPELLANT IN HANDCUFFS

Appellant alleges, and the State admits, that he has a right to be tried without manacles of any sort unless there are exigent circumstances requiring him to be restrained.

In this case, appellant was allegedly seen in handcuffs by some prospective jurors in the hallway immediately outside the courtroom.He argues that this required the trial judge to immediately dismiss the entire panel of prospective jurors because of the possible resulting prejudice against appellant in the minds of the jury.Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353(1970).The prohibition against shackling the defendant is not absolute, however, and where it appears the shackling was harmless error beyond a reasonable doubt, the decision of the trial court will not be reversed.State v. Reid, 114 Ariz. 16, 559 P.2d 136(1976).

The trial court in this case succinctly set forth its reasons for refusing to dismiss the entire jury panel as follows:

"(T)he facts are, . . . that prior to the impaneling of the jury or any of the proceedings, that the defendant was brought to the hallway of the courthouse in handcuffs, dressed in street clothes and the handcuffs were in front.He was wearing a long-sleeved sweater, he was escorted through a number of prospective jurors whose identies (sic) are not known.The defendant did not thereafter appear before the Court or impaneled jury in any type of handcuffs.The Court is of the opinion that the voir dire examination which took place after this single incident and the questions asked by the Court would have been sufficient for the purpose of excluding anyone who might have observed this procedure in some way and been prejudiced by it, if in fact they did observe it."

The facts as found by the trial court are supported by the record, and it did not abuse its discretion by refusing to dismiss the jury.SeeState v. Moore, 110 Ariz. 404, 519 P.2d 1145(1974).See alsoUnited States v. Acosta-Garcia, 448 F.2d 395(9th Cir.1971);United States v. Figueroa-Espinoza, 454 F.2d 590(9th Cir.1972).

PRESENCE OF AN UNAUTHORIZED JUROR IN THE JURY ROOM

Appellant next contends that because an alternate juror entered the jury room subsequent to being dismissed at the end of the trial, a mistrial should have been declared by the trial court.The primary authority cited for this proposition by appellant is State v. Bindyke, 288 N.C. 608, 220 S.E.2d 521, 531(1975):

"The rule formulated by the overwhelming majority of the decided cases is that the presence of an alternate, either during the entire period of deliberation preceding the verdict, or his presence at any time during the deliberations of the twelve regular jurors, is a fundamental irregularity of constitutional proportions which requires a mistrial or vitiates the verdict, if rendered.And this is the result notwithstanding the defendant's counsel consented, or failed to object, to the presence of the alternate."(Emphasis in original.)

This right to a unanimous verdict by a properly constituted jury is, of course, guaranteed to defendants in criminal trials in Arizona.Ariz.Const. Art. 2, § 23, and Art. 6, § 17;State v. Counterman, 8 Ariz.App. 526, 448 P.2d 96(1969).There is no doubt that the defendant is entitled to a decision on his guilt by a jury unaided by outside influences such as the presence of an alternate juror who has been excused by the court.The only question to be determined, therefore, is whether this jury had begun its function as a separate entity.If it had, a mistrial must necessarily result.United States v. Beasley, 464 F.2d 468(10th Cir.1972).

As developed during hearings in chambers, the facts here show that the excused alternate juror entered the jury room with the rest of the jurors following trial.The bailiff noticed the alternate juror's presence as he was instructing the jury on the use of the telephone.At this time, the bailiff was told by the alternate juror that she wanted "to say a prayer with the jurors before I leave".After a silent prayer, she left the jury room.The total intrusion into the jury room lasted no more than one minute, and probably less.During this short period the bailiff, positioned outside the jury room although not partitioned by a closed door could not distinguish anything that was said.It was also established that the exhibits had not yet been brought into the jury room, and that no group action of any sort had been taken by the jury prior to or during this intrusion.

Under the totality of these circumstances, we cannot say that the jury had begun operating as a separate entity when the alternate juror was present.We decline to substitute our judgment for that of the trial...