State v. Lautzenheiser

881 P.2d 339, 180 Ariz. 7, 174 Ariz. Adv. Rep. 3, 1994 Ariz. LEXIS 93

• Court: Arizona Supreme Court
• Decided: September 20, 1994
• Docket: CR-93-0363-PR
• Status: Published

Opinions

OPINION

ZLAKET, Justice.

Defendant was charged with aggravated driving while under the influence of intoxicating liquor, a class five felony. His first trial ended with a hung jury on October 3, 1991. A second trial commenced December 30. The ease, was given to the jury at approximately 3:33 p.m. on December 31.

At 4:20 p.m., the jury foreman announced in open court that a guilty verdict had been reached. At defense counsel’s request, the jurors were polled, as follows:¹

THE COURT: Members of the jury, you will each be asked a question by the Clerk. Please answer yes or no.

THE CLERK: J.G., is this your true verdict?

MS. G: No, no, it’s not. I’m sorry, I did say yes to it, but I don’t feel that way. THE CLERK: H.S., is this your true verdict?

MS. S: Yes.

THE CLERK: W.H., is this your true verdict?

MR. H: Yes.

THE CLERK: S.C., is this your true verdict?

MR. C: Yes.

THE CLERK: L.B., is this your true verdict?

MS. B: Yes.

THE CLERK: N.C., is this your true verdict?

MS. C: Yes.

THE CLERK: E.G., is this your true verdict?

MS. G: Yes.

THE CLERK: J.F., is this your true verdict?

MS. F: Yes.

THE CLERK: J.G., is this your true verdict?

MS. G: No.

(emphasis added). After having been told twice by juror number one (J.G.) that the verdict was not hers, and following an off-the-record bench conference, the judge took a short recess. There is no record of what, if anything, transpired during this break in the proceedings. Upon returning to the courtroom, the judge engaged in the following colloquy with the jury foreman:

THE COURT: Mr. H., you’re the foreman, correct?

MR. H: Yes.

THE COURT: Do you feel, sir, it would be helpful and productive for the jury to deliberate some more?

MR. H: No, I don’t think so.

THE COURT: Do you think that if I sent you back into the jury room that you may be able to reach a verdict?

MR. H: Well, we can give it a try.

THE COURT: Why don’t we give it a try and you’re to retire back into the jury room with the forms of verdict and the instructions. And the record should show the presence of the defendant, counsel, and the jury.

(emphasis added). The jurors then retired to resume deliberations at 4:30 p.m. No cautionary instructions were requested or given. Approximately 20 to 25 minutes later, the jury returned a unanimous guilty verdict and was again polled. This time, every juror concurred. The court excused the jury at 4:55 p.m. without further inquiry.

Defendant claims the foregoing procedure effectively resulted in a “coerced” verdict. He cites State v. McCutcheon, 150 Ariz. 317, 723 P.2d 666 (1986) (McCutcheon I),2 and the dissenting opinion in State v. Roberts, 131 Ariz. 513, 516-18, 642 P.2d 858, 861-63 (1982), in support of his position. Defendant further asserts that because the error here was fundamental, his failure to object was not fatal. The court of appeals, with one judge dissenting, affirmed the conviction. State v. Lautzenheiser, 177 Ariz. 26, 864 P.2d 1058 (Ct.App.1993). We granted review and have jurisdiction pursuant to Ariz. Const, art VI, § 5(3) and A.R.S. § 12-120.24.

We must determine, if possible, whether the defendant received a fair trial at the hands of an independent jury, the members of which were free from intimidation or undue pressure. McCutcheon I, 150 Ariz. at 319-20, 723 P.2d at 668-69. We agree with the court of appeals that the “totality of the circumstances” must be considered in making this determination. Lautzenheiser, 177 Ariz. at 28, 864 P.2d at 1060 (citing Roberts, 131 Ariz. at 515, 642 P.2d at 860). We disagree, however, with the conclusion of that court’s majority.

The backdrop against which this verdict was reached should have caused a high degree of caution and suspicion on the part of all participants. There naturally exists a sense of urgency whenever a jury trial goes into late afternoon the day before a major holiday. People have plans, and potential distractions are many.³ Moreover, submitting a DUI case to a jury late in the day on New Year’s Eve, a holiday that in recent years has been accompanied by a media blitz concerning the deadly consequences of drinking and driving, seems at best a questionable proposition if calm and reasoned deliberation is the goal. The judge and the lawyers here should have been on high alert.

Things could only have gone from bad to worse for defendant when juror number one was effectively singled out, not once but twice, as the person responsible for delaying the conclusion of proceedings (and thus preventing everyone from going home). While it is true that this identification occurred during the polling process, without any fault on the part of the judge or lawyers, the potential for harm should have become immediately apparent. As noted by the dissent in Roberts, “[f]rom a pragmatic standpoint, when such a division is announced and eleven [here, seven] pairs of eyes turn to look at the single holdout, it is impossible to conclude that the juror was not subjected to pressure after the jury had returned to the jury room.” 131 Ariz. at 517, 642 P.2d at 862; see also McCutcheon I, 150 Ariz. at 320, 723 P.2d at 669 (judge’s knowledge of jury’s numerical division, though inadvertent, contributed to coercive effect of his subsequent questioning).

The final blow, however, came with the appraisal by the jury foreman that he did not believe a verdict could be reached, followed immediately by the court’s order to continue trying. Under these circumstances, and in the absence of any cautionary instructions,⁴ it is not hard to imagine the discussion that ensued when the jury retired to deliberate for the second time, nor is it surprising that a guilty verdict was reached so quickly thereafter. Unfortunately, we will never know what occurred because of the hasty manner in which the jury was discharged without pertinent inquiry following its verdict. A cynic might suggest that juror number one should have been checked for bruises.

The discussion here between the judge and jury foreman causes us the same discomfort we voiced in McCutcheon I:

Since the jury knew that the trial judge was aware the majority had voted for conviction, her repeated questions sent an inference that she agreed with the majority. We believe she implicitly communicated to the dissenters the message that she thought they should change their views, since that would be the only way, in all likelihood, a verdict could be reached. Any pressure to decide then was pressure to decide against the defendant.

150 Ariz. at 320, 723 P.2d at 669.

The state argues, however, that defense counsel’s failure to object results in waiver, precluding reversal by this court. “Absent a finding of fundamental error, failure to raise an issue at trial ... waives the right to raise the issue on appeal.” State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991). Fundamental error is that “which goes to the foundation of the case, or which takes from a party a right essential to his case.” Johnson v. Elliot, 112 Ariz. 57, 61, 537 P.2d 927, 931 (1975). The integrity of the justice system demands unfettered juries. This principle goes to the very heart of our jurisprudence. “Every attempt to drive men into an agreement which they would not have reached freely is a perversion of justice.” State v. Voeckell, 69 Ariz. 145, 159, 210 P.2d 972, 981 (1949) (Udall, J., dissenting) (quoting Pierce v. Pierce, 38 Mich. 412, 417 (1898)). Thus, we believe that whenever a judge improperly influences or coerces a verdict, the defendant is denied “a right essential to his case.”⁵

Even applying the “bifurcated” analysis referred to in State v. King, 158 Ariz. 419, 424 n. 4, 763 P.2d 239, 244 n. 4 (1988), we cannot say on the record before us that the judge’s order to continue deliberations after juror number one had been identified as the lone dissenter, together with the lack of cautionary instructions, did not “contribute to or significantly affect” this verdict. State v. Thomas, 130 Ariz. 432, 436, 636 P.2d 1214, (1981). The hung jury in the first trial, coupled with the lack of unanimity here, raises legitimate questions about the strength of the state’s case. The evidence against defendant certainly was not overwhelming.⁶

The court of appeals concluded in part that any error was not fundamental because “[t]he circumstances of this case indicate less coercion than in McCutcheon [II]” and no such error was found there. 177 Ariz. at 31, 864 P.2d at 1063. We respectfully disagree. We begin with the observation made by the dissent in Roberts, 131 Ariz. at 518 n. 3, 642 P.2d at 863 n. 3, that use of the word “coercion” in circumstances such as these is both unfortunate and unnecessary, as nothing so strong need be shown to justify relief. Furthermore, we believe McCutcheon II is distinguishable for several reasons.

First, the alleged error there consisted of comments by the trial judge regarding the sufficiency of the evidence and the short amount of time the jury had deliberated. No jurors were singled out, nor was their numerical division revealed. Thus, we determined that had an objection been raised, “the judge could have explained his comments to the jury, and cured any possible error.” McCutcheon II, 162 Ariz. at 60, 781 P.2d at 37. Considering all the circumstances, the difficulties of the present case might not have been so easily remedied. Second, although a written note from the jurors in McCutcheon II indicated they were divided, there was no apparent resistance to the further deliberations suggested by the trial judge. Here, in contrast, the jury foreman was persuaded to try again after announcing in open court that he felt further deliberations would be unproductive. Thus, pressure to reach a verdict was directed at both the foreman and the dissenting juror, each of whom had been publicly identified by the time the court ordered them back to try again. And finally, of course, there was the unique backdrop of the holiday atmosphere, and its corresponding pressure, which was not present in McCutcheon II.

Although it is baffling why the defense lawyer did not object to the order sending the jurors back for more deliberations that afternoon, or at least request a cautionary instruction, it is likewise unfortunate that the court did not itself take additional steps to determine whether an unpressured verdict was still possible after the first polling process. As we stated in McCutcheon II, “whenever further deliberations are ordered, it would be sound practice to remind the jurors that they are not to surrender their honest convictions for the purpose of reaching a verdict, for ‘under our system the judge is not allowed to help persuade a juror to surrender his conviction and conform.’ ” 162 Ariz at 60, 781 P.2d at 37 (quoting Roberts, 131 Ariz. at 517-18, 642 P.2d at 862-63). The message of our past eases is clear. Regardless of whether an objection is made, the court has a role to play and a function to perform, and we cannot excuse its failure to safeguard the integrity of any verdict or to declare a mistrial where appropriate.

We therefore vacate the court of appeals’ opinion, reverse the judgment of the trial court, and remand for a new trial.

FELDMAN, C.J., and MOELLER, V.C.J., concur.

1 . To protect the privacy of the jurors, we refer to them here only by their initials.

2 . In State v. McCutcheon, 150 Ariz. 317, 723 P.2d 666 (1986) (McCutcheon I), defendant was tried in Maricopa county on charges of armed burglary, armed robbery and kidnapping arising out of events occurring in Phoenix. We reversed defendant’s convictions because the verdict was coerced. In State v. McCutcheon, 162 Ariz. 54, 781 P.2d 31 (1989) (McCutcheon II), the same defendant was tried in Pima County on charges of armed robbery, armed kidnapping and aggravated assault arising out of events occurring in Tucson. Having once been successful, defendant again raised a complaint of jury coercion. He was not so fortunate on this occasion.

3 . We note that McCutcheon I, supra, also involved an impending holiday.

4 . Regarding the need for cautionary instructions, see McCutcheon II, 162 Ariz. at 60, 781 P.2d at 37, and Roberts, 131 Ariz. at 518, 642 P.2d at 863 (Feldman, J., dissenting) (citing State v. Rickerson, 95 N.M. 666, 667, 625 P.2d 1183, 1184 (1981)).

5 . In Brasfield v. United States, 7.72 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926), the Supreme Court held that failure to object to the trial court’s questions regarding the jury’s division on a verdict did not preclude appellate correction of that error. In Roberts, supra, we refused to follow Brasfield’s per se rule that mere inquiry into numerical division is reversible error, adopting instead the totality of circumstances test. We did not, however, reject the underlying premise of Brasfield that improper influence by a judge upon a jury is always inappropriate and usually harmful.

6 . For example, because defendant did not submit to breath or blood testing, the state's case was based almost entirely on his questionable performanee during a field sobriety examination. Needless to say, such test results are more easily subject to interpretation and challenge.