State v. Rojas

Citation868 P.2d 1037,177 Ariz. 454
Decision Date23 December 1993
Docket NumberCA-CR
PartiesSTATE of Arizona, Appellee, v. Manuel ROJAS, Appellant. 191-1800
CourtArizona Court of Appeals

CAMPBELL, Judge 1.

We hold in this opinion that the trial court abused its discretion when it denied a motion for mistrial based on the grounds that one of the jurors asked whether the judge would sentence right away after a verdict, and sent a sympathy note to the victims enclosing a twenty dollar bill, prior to jury deliberations. For retrial, we also conclude that the court properly admitted expert testimony regarding "child sexual abuse accommodation syndrome" and evidence of defendant's prior bad acts.

I. Facts and Procedural History

By indictment, appellant Manuel John Rojas ("defendant") was charged with one count of child molestation, two counts of sexual misconduct with a minor, and one count of attempted child molestation. The jury found defendant guilty of count I, molestation of a child, a class two felony and dangerous crime against children; count II, sexual conduct with a minor, a class two felony and dangerous crime against children; count III, sexual conduct with a minor, a class two felony; and count IV, attempted molestation of a child, a class three felony and dangerous crime against children. The trial court sentenced defendant to consecutive terms, to be served in the following order, of seven years on count III, thirty years on count II, life imprisonment on count I, and ten years on count IV.

Defendant presents three claims on appeal: (1) that the court erred in denying his motion for a mistrial based on juror misconduct; (2) that the trial court erred in admitting expert testimony regarding "child sexual abuse accommodation syndrome"; and (3) that the court erred in admitting evidence of his prior bad acts. For the following reasons, we reverse and remand for a new trial on the juror misconduct issue. We affirm the remaining evidentiary issues in the event they reoccur at trial.

II. Juror Misconduct

Defendant claims that the trial court abused its discretion by denying him a mistrial for juror misconduct and that the denial of his motion for a mistrial violated his right to an impartial jury under the Sixth Amendment to the United States Constitution and article 2, section 24 of the Arizona Constitution. We agree.

The facts surrounding the misconduct are, to say the least, unusual. The day before jury deliberations, the juror, while making a telephone call in the judge's chambers, asked the judge's secretary whether the court would sentence a defendant right away when a verdict returns or when a defendant is found guilty. The next day, while walking out to deliberate, the same juror handed the bailiff a note, with a $20 bill enclosed, to give to the two victims in the case, stating:

[victim's names]:

I think it took great courage to come to court and testify in front of a jury. I feel you will overcome this mess and go on to become excellent citizens of the Phoenix community.

I want to give this money as a small token of how proud I am of you two.

Good luck in the future.


A concerned juror.

The colloquy with the judge's secretary and the note were brought to the court's attention after deliberations began. Upon learning of these incidents, defendant moved for a mistrial and requested that the juror be immediately questioned. The judge denied the mistrial and declined to interview the juror until the jury returned a verdict. After the jury returned guilty verdicts, the judge questioned the jurors as follows:

The Court: This is an unusual proceeding, but let me just explain why I did that, and where we are headed. At the conclusion of the case, Judy Palmer, my bailiff, handed me a note and said one of the juror, as it turns out, Mr. H (the juror's name is redacted) had given her a note addressed to the minor victims in the case, the children....

I instructed Judy at that point to give it to the county attorney.... The note expressed Mr--I won't read it at this time, but it expressed admiration, I might say, on Mr. H's part, for the fact that they had been under, at best, difficult circumstances, and that they had testified and he wished, in essence, wished them well and he included a $20 bill.

That was, I am sure, a nice thought on Mr. H's part. The problem that thereupon caused was as follows: A motion was made for a mistrial. At that point it was denied by me. I said I would wait until the jury returned, then I would question the jury. At that point, there was discussion as to whether or not I should bring Mr. H into my chambers in the presence of both attorneys, place him under oath and question him regarding the note.

I felt that it was better, under the circumstances, not to do that, but to allow you to continue with your deliberations and at the end, to bring all of you in and ask you all a few questions.

While Mr. H, while I did fairly characterize the note, I didn't go ahead and say word for word what was said. In essence it expressed your appreciation for the difficult task that these young women had in coming forward in this courtroom, telling the story, telling the things that happened to them. Right?

Mr. H: That's correct.

The Court: You expressed sympathy and wished them well in the future.

Mr. H: The reason I did that, your honor, is because I see a lot of unfortunate families, less fortunate than myself. I wanted to, in some way, pass along my feelings toward those not as fortunate as myself.

The Court: Did you, when you wrote that, when you wrote that note at that time, had you made up your mind as to the guilty of the defendant?

Mr. H: No, I had not. That's why I handed it to the bailiff before we deliberated. Whether the verdict was guilty or not guilty, I wanted these people to have my comments plus my small token of appreciation.


The Court: You were willing to sit down to deliberate with your fellow jurors, to review the evidence and the law before you reached a conclusion as to guilty or not guilty?

Mr. H: That's correct.

The remaining jurors assured the court that they knew nothing of Mr. H's note while deliberating. The trial court denied defendant's new motion for a mistrial.

In their briefs, the parties frame the issue of juror misconduct in terms of whether the juror formed a fixed opinion about defendant's guilt before the case was submitted to the jury for decision. We are mindful, however, that Rule 18.4, Arizona Rules of Criminal Procedure, replaced a catalogue of fifteen grounds for challenging jurors in the 1956 criminal rules, with the general provision allowing a party to challenge a juror for cause at any time if there is reasonable ground to believe that a juror cannot render a fair and impartial verdict. "The omission of the list is intended to direct the attention of attorneys and judges to the essential question--whether a juror can try a case fairly." Ariz.R.Crim.P. 18.4(b) cmt.

Whether the juror in this case could try the case fairly rests upon an analysis of the misconduct: the juror's question as to when the judge would sentence; the sympathy note to the victims; and the giving of a twenty dollar bill to the victims. Inasmuch as the only issue at trial appeared to be the truthfulness of the complaining witnesses, doubt that the juror had reserved judgment as to the defendant's guilt is unavoidable.

The juror's conduct casts into doubt more than whether he had a fixed opinion. The fundamental question is whether the juror could judge the case fairly. The giving of a sympathy note and money to victim witnesses in a case prior to jury deliberations also calls into question the juror's impartiality: It displays favoritism.

Having framed the issue, we turn to the law governing juror misconduct. The cases are legion that a defendant is entitled to a fair, impartial and unbiased jury. See, e.g., State v. Smith, 146 Ariz. 325, 327, 705 P.2d 1376, 1378 (App.1985); State v. Eisenlord, 137 Ariz. 385, 392, 670 P.2d 1209, 1216 (App.1983); State v. Davis, 137 Ariz. 551, 558, 672 P.2d 480, 487 (App.1983). Our research has not disclosed, however, a similar reported case in which a juror not only makes a comment displaying an opinion, but also attempts to give the victim witnesses money along with a sympathy note prior to jury deliberations.

There is a wider body of case law addressing whether a juror has a fixed opinion on the case. One traditional component of fairness is that a juror remain open-minded and not form a fixed opinion upon the case until the jury commences deliberations. Thus, in preliminary instructions in this case, the trial court instructed the jurors not to form or express an opinion on the merits of the case as follows:

Do not form an opinion as to what the ultimate verdict will be until you have heard all the evidence, have heard the arguments presented by the attorneys and have the instructions of law which I will give you at the end of the case.

It is only when you retire to begin your deliberations that you should form an opinion as to what your individual verdict will be.

This is a common preliminary instruction. See State v. Drake, 31 N.C.App. 187, 229 S.E.2d 51 (1976). The reasons for the instruction and admonition are apparent. If a juror has formed a fixed opinion on a defendant's guilt prior to deliberations, the juror may stand by the opinion even if contradicted by subsequent evidence. A juror may also form premature conclusions without the benefit of final arguments, instructions of law, and jury deliberations. Cf. Commonwealth v. Kerpan, 508 Pa. 418, 498 A.2d 829, 831 (1985).

Arizona law on this issue arises in the...

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17 cases
  • State v. Roscoe
    • United States
    • Arizona Supreme Court
    • 1 Febrero 1996
    ...properly limited to the scope of emotional propensity, rather than the doctor's opinion of the witnesses' credibility. 177 Ariz. 454, 459, 868 P.2d 1037, 1043 (App.1993).4 Roscoe also called Dr. Ian Lanyon, an expert witness, to rebut Dr. Gray's conclusion that Roscoe has an emotional prope......
  • King v. Commonwealth
    • United States
    • United States State Supreme Court — District of Kentucky
    • 29 Octubre 2015
    ...(9th Cir.1997) ; Mindombe v. U.S., 795 A.2d 39 (D.C.2002) ; W.R.C. v. State, 69 So.3d 933 (Ala.Crim.App.2010) ; State v. Rojas, 177 Ariz. 454, 868 P.2d 1037 (Ariz.Ct.App.1993) ; Chunestudy v. State, 408 S.W.3d 55 (Ark.2012) ; Seering v. Dept. of Social Servcs., 194 Cal.App.3d 298, 239 Cal.R......
  • Sanderson v. Com., No. 2007-SC-000537-MR.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 21 Mayo 2009
    ...the complaining witness' behavior in a given case was inconsistent with a truthful accusation of sexual abuse."); State v. Rojas, 177 Ariz. 454, 868 P.2d 1037, 1042 (1993) ("[E]xpert testimony that helps jurors evaluate victims' credibility and explains why victims of sexual abuse may behav......
  • Dillard v. State Of Md..
    • United States
    • Maryland Court of Appeals
    • 25 Agosto 2010
    ...form premature conclusions without the benefit of final arguments, instructions of law, and jury deliberations.” State v. Rojas, 177 Ariz. 454, 868 P.2d 1037, 1041 (App.1993). Finally, the fact that two jurors independently made the same comment about Detective Smith's testimony suggested t......
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2 books & journal articles
  • Jury instructions, not problematic expert testimony, in child sexual assault cases.
    • United States
    • Suffolk Journal of Trial & Appellate Advocacy No. 11, January 2006
    • 1 Enero 2006
    ...a conviction because of improper linking between the characteristics of sexually abused children and the complainant). But see Rojas, 868 P.2d at 1037 (deciding to no longer permit an expert to comment on the credibility of a complaining witness). However, the court did decide to permit gen......
  • The whole truth: restoring reality to children's narrative in long-term incest cases.
    • United States
    • Journal of Criminal Law and Criminology Vol. 87 No. 4, June 1997
    • 22 Junio 1997
    ...of uncharged acts of abuse committed against the complainant's siblings. (281) See supra note 22. (282) See, e.g., State v. Rojas, 868 P.2d 1037 (Ariz. Ct. App. 1993); Tharp State, 724 S.W.2d 191 (Ark. 1987); Hicks v. State, 441 So. 2d 1359 (Miss. 1983). See also supra note 23. (283) See su......

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