State v. Shumway
| Decision Date | 26 October 1983 |
| Docket Number | No. 5910-PR,5910-PR |
| Citation | 137 Ariz. 585,672 P.2d 929 |
| Parties | STATE of Arizona, Appellee, v. Albert Lee SHUMWAY, Appellant. |
| Court | Arizona Supreme Court |
Ross P. Lee, Maricopa County Public Defender by H. Allen Gerhardt, Deputy Public Defender, Phoenix, for appellant.
The defendant's conviction of negligent homicide, A.R.S. § 13-1102(A), was reversed by the Court of Appeals, State v. Shumway, 137 Ariz. ---, 672 P.2d 944 (1983), and we granted the state's petition for review. We have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.
We must consider two issues on appeal:
1. Did the trial court's communication with the jury, outside the presence of the defendant and his counsel, constitute reversible error?
2. Did the trial court err in refusing to give the defendant's requested instruction dealing with the decedent's duty to yield the right of way?
The facts necessary for a determination of these issues are as follows. At approximately 6:45 p.m. on 25 August 1980, the defendant's Buick stationwagon, which was traveling west in excess of the posted speed limit, collided with the decedent's Oldsmobile sedan as the decedent attempted to turn left onto 59th Avenue from Northern Avenue in Glendale, Arizona. The driver of the Oldsmobile died at the scene of the accident.
Although the defendant passed a field sobriety test, he was voluntarily taken to the Glendale Police Department where a blood-alcohol reading of 0.11 was obtained. At his trial, the defendant argued that (1) the alcohol in his system did not impair his driving skills, (2) his auto's speed did not render him criminally negligent, and (3) the deceased failed to yield to oncoming traffic in making her left hand turn, causing the accident. Defendant's requested instruction concerning the decedent's duty to yield the right of way was denied by the trial judge.
After the jury deliberation began, the trial judge received a note from the jury asking what blood-alcohol level is considered "illegal" by city and state authorities. The trial judge, without consulting counsel, responded in writing that The jury found the defendant guilty of negligent homicide, and after being sentenced to the presumptive four year term, the defendant appealed.
Since the jury communication made by the trial judge was without notice to the defendant, the Court of Appeals reversed the defendant's conviction. First, the Court of Appeals found the communication erroneous, and therefore prejudicial. This finding was based upon the fact that the response was, in part, "an incorrect expression of the law," under A.R.S. § 28-692(B)(3). This statute provides that a driver is presumed under the influence of alcohol when his blood alcohol content exceeds 0.10. The Court of Appeals also found that the statement contained "an improper expression of [the trial judge's] opinion concerning the importance of that evidence." Finally, the Court of Appeals found reversible error in the trial court's refusal to give the defendant's requested jury instruction concerning the duty to yield the right of way while making a left turn. We agree with the Court of Appeals' finding that the instruction should have been given, but disagree with the Court of Appeals determination that the communication between the trial judge and jury outside the presence of counsel was prejudicial to the defendant.
The law in this state is that a trial judge may not communicate with a deliberating jury unless the defendant and counsel have been notified. State v. McDaniel, 136 Ariz. 188, 197, 665 P.2d 70, 79 (1983); State v. Mata, 125 Ariz. 233, 240-41, 609 P.2d 48, 55-56, cert. denied 449 U.S. 938, 101 S.Ct. 338, 66 L.Ed.2d 161 (1980); State v. Benford, 129 Ariz. 447, 448, 631 P.2d 1105, 1106 (App.1981); Rule 22.3, Arizona Rules of Criminal Procedure, 17 A.R.S. Since neither the defendant nor the attorneys were notified, the communication was plainly error.
It is also the rule, however, that erroneous jury communications do not require reversal if it can be said beyond a reasonable doubt that the defendant was not prejudiced by the communication. State v. McDaniel, supra; State v. Mata, supra; State v. Benford, supra. We believe in the instant case that the trial judge's written response here was non-prejudicial because it did not impart any erroneous information to the jury. The statement could have been material and reversible had this action been a prosecution for driving while intoxicated. This was, however, a prosecution for negligent homicide. As such, the relationship between defendant's blood alcohol-level and the alleged negligence, while relevant, was merely one of a number of facts, including the speed of the defendant's vehicle and defendant's manner of its operating the vehicle. The trial judge noted this in the second sentence of his response when he stated that "the blood alcohol level is one fact to be considered along with all other facts."
We believe the trial judge's response to the jury question, though incomplete, did not incorrectly state the law on the subject of blood-alcohol content at the time of the accident. Under A.R.S. § 28-692(B)(3) as it existed at the time of the accident, when a driver's blood alcohol level was equal to or greater than 0.10, there was a presumption that the driver was "under the influence of intoxicating liquor." But that was a presumption only, and not the equivalent of illegal conduct per se. See State v. Zavala, 136 Ariz. 356, 666 P.2d 456 (1983); State v. Burgess, 82 Ariz. 200, 203, 310 P.2d 822, 824-25 (1957). The judge merely stated that it was "one fact to be considered with all of the other facts," (emphasis supplied) and we find no prejudice to the defendant in that response.
Neither do we believe that the court's response reflects an expression of the trial judge's opinion as to the importance of any fact in this case. The response did not amount to a comment on the evidence, which occurs when the judge tells the jury his opinion of what the evidence does or does not show. See State v. Parker, 116 Ariz. 3,...
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