State v. Vasquez
| Decision Date | 23 September 1981 |
| Docket Number | No. 5245,5245 |
| Citation | 634 P.2d 391,130 Ariz. 103 |
| Parties | STATE of Arizona, Appellee, v. Tony VASQUEZ, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer III and Stanley L. Patchell, Asst. Attys. Gen., Phoenix, for appellee.
Thomas A. Moran, Yuma, for appellant.
Defendant, Tony Vasquez, was convicted in absentia by a jury on 30 March 1979 of two counts of armed robbery, a dangerous offense, in violation of A.R.S. § 13-1904. On 20 April 1979, defendant was sentenced to concurrent terms of eight years in prison on each armed robbery count. A.R.S. § 13-604(K). Defendant now appeals the convictions and sentences. We have jurisdiction pursuant to Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S.
Defendant raises two issues on appeal:
1. Was defendant's due process right to be tried by a fair and impartial jury abridged?
2. Was the sentence excessive?
The facts necessary to a resolution of these issues are as follows. On 6 January 1979, defendant attended a party at a friend's house in Yuma, Arizona. During the course of the party, defendant became intoxicated and told co-defendant Daniel Lopez, Pete Ayala, and others that he wanted to rob the Economy Gas Station also located in Yuma. Between 1:00 and 2:00 a. m. on 7 January, defendant, Lopez, Ayala, and three other men left the party in Ayala's car to go to another party. Unable to find the other party, the men "cruised" the streets of Yuma until defendant suggested that they go "check out" the gas station. After the car was parked in the alley to the rear of the gas station, defendant and Lopez approached the gas station.
Ronald Boston, the attendant on duty and an acquaintance of defendant, was conversing with a friend, Cecil Brand, in the gas station's office when defendant and Lopez entered. Defendant removed a pistol from his coat, swept it in an arc across the room, pointed the pistol at Boston and ordered him to surrender the pouch containing the evening's receipts. When Boston did not readily comply, defendant extracted the pouch from one of Boston's pockets. While this was occurring, Lopez took Cecil Brand's wallet after first ordering Brand to turn around and stand against the wall. As defendant and Lopez left the office, Lopez stated, "Hey, if you don't remember us, just remember how big this gun is."
Later that morning, defendant and Lopez were arrested and the wallet and pouch were recovered. Defendant was convicted of two counts of armed robbery and sentenced to concurrent terms of eight years in prison. From the convictions and sentences imposed, defendant appeals.
The defendant raises two questions as to alleged juror misconduct. The first concerned Mrs. Uribe. After the jury had been selected and the first witness was testifying, the following transpired:
"THE COURT: Mr. Dawley, I'd like to stop at this point. One of the jurors has handed a note to the bailiff saying that, from what has been said that she believes she was told about this case after it happened. So of course the only question is whether or not the juror formed any opinion which could not be set aside so that the verdict could be based solely upon what takes place in this courtroom.
And, Mrs. Uribe, you are the one that wrote the note. Did you form any opinion at that time?
Failure of a juror to disclose knowledge of the facts of the case during voir dire or a juror's contact with a witness during trial, although improper, State v. MacDonald, 110 Ariz. 152, 515 P.2d 1172 (1973), is not grounds for a mistrial or new trial unless defendant establishes that the "misconduct was prejudicial to the rights of the defendant or when such a state of facts is shown that it may fairly be presumed * * * that the defendant's rights were prejudiced." State v. Adams, 27 Ariz.App. 389, 392, 555 P.2d 358, 361 (1976); see State v. Ebert, 110 Ariz. 408, 519 P.2d 1149 (1974).
It would appear that Mrs. Uribe was a conscientious juror and when her memory was jogged by Ronald Boston's testimony, she immediately informed the court. Mrs. Uribe's assurances of impartiality would appear to have considerable weight when considered in connection with her action in bringing these facts to the attention of the court.
Our Court of Appeals has stated:
"The trial judge is in a superior position to judge the prejudicial effect of nondisclosure of facts relevant to a juror's bias and we will not interfere absent clear abuse of discretion." State v. Robinson, 127 Ariz. 324, 329, 620 P.2d 703, 708 (1980), cert. denied --- U.S. ----, 101 S.Ct. 1765, 68 L.Ed.2d 242 (1981).
Defendant, however, argues that the non-disclosure deprived him of the right to intelligently exercise his peremptory challenges. State v. Ortiz, 117 Ariz. 264, 571 P.2d 1060 (App.1977). We do not believe, however, that the information mistakenly not disclosed by Mrs. Uribe during voir dire was of such character as to indicate a probable bias or prejudice to defendant's right of peremptory challenge. The juror did not connect the facts she had previously received with the case she was called upon to decide until evidence was presented. On voir dire, her answers were given in good faith and were not the result of bias or an attempt to conceal a belief in defendant's guilt. Even if she had remembered the conversation with the witness, she could still have been qualified as a juror. The United States Supreme Court has stated, " * * * (q) ualified jurors need not * * * be totally ignorant of the facts and issues involved. * * * " Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 594-95 (1975); see State v. (Ricky) Tison, --- Ariz. ---, 633 P.2d 335 (1981); State v. Narten, 99 Ariz. 116, 407 P.2d 81 (1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1985, 16 L.Ed.2d 1021 (1966). There has been no showing of prejudice to the defendant. We find no error.
The communication between the witness and Juror Desch is, however, more troublesome. During the first recess, the witness Ronald Boston spoke with Mr. Desch. The defense counsel moved for a mistrial stating:
The court questioned Boston out of the hearing of the jury on the nature of his conversation with the juror:
The trial court noted the crowded conditions of the court house:
"Here in Yuma County where the witnesses and the jurors and the judges and the clerks and everybody has to go through the same corridor, and there is very little room for anybody to sit except out in the lobby where everyone is, it is pretty difficult for anybody, a witness or anyone not to be unfriendly. * * * "
And stated he did not believe the jury was prejudiced. He did, however, admonish the jury as follows:
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