270 P.3d 870
Ariz. Ct. App.2012Background
- Defense counsel filed an Anders brief asserting the appeal is wholly frivolous and Thompson filed a pro per supplement seeking reversal.
- Arizona appellate procedure requires the court to review for non-frivolous issues and ensure counsel properly searched the record.
- The court identified one arguable issue: whether denial of Thompson’s motion for a new trial based on juror misconduct (Internet research during deliberations) is meritorious.
- The trial court conducted an evidentiary hearing, heard the juror testify, and obtained a detective’s report on other jurors’ interviews.
- The court acknowledged the issue is arguable on the merits, citing State v. Aguilar for prejudice from juror internet research.
- The court concluded that when a non-frivolous issue is found, the Anders process directs striking the brief and proceeding with ordinary briefing; otherwise the court reviews for reversible error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there exists a non-frivolous issue on appeal | Thompson asserted potential issues beyond frivolous ones. | State argued issues were frivolous and no non-frivolous issues existed. | Arises that at least one issue is non-frivolous. |
| Whether the denial of the motion for a new trial was erroneous given juror misconduct | Issue is arguable since juror conducted internet research and shared findings. | State contends no reversible error or improper prejudice shown. | Not wholly frivolous; issue arguable on merits. |
| Procedure when a non-frivolous issue is found from Anders briefing | Not applicable; focusing on review posture. | Court should strike the briefs and proceed with ordinary briefing. | Court struck briefs and ordered new opening brief with full briefing. |
| Scope of trial-record review after striking Anders brief | Advocate’s brief required; review remains with defense counsel. | If non-frivolous issues found, the court should reframe briefing. | Court confirms procedure to reframe briefing and proceed as ordinary appeal. |
| Continued role of counsel and appellate review when issues are identified | Counsel should have identified non-frivolous issues earlier. | Court should ensure due process while allowing counsel to brief non-frivolous issues. | Proceed with new briefing and schedule under Rule 31.13(a). |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (Supreme Court 1967) (establishes procedure for frivolous appeals and counsel withdrawal)
- Penson v. Ohio, 488 U.S. 75 (Supreme Court 1988) (requires review for prejudice when counsel withdraws as frivolous)
- McCoy v. Court of Appeals of Wis., 486 U.S. 429 (Supreme Court 1988) (Sixth Amendment right to counsel in frivolous-appeal determinations)
- State v. Aguilar, 224 Ariz. 299 (App. 2010) (reversing denial of motion for new trial due to juror's internet research prejudicing defendant)
- State v. Scott, 187 Ariz. 474 (App. 1996) (advocate’s brief responsibility; court not to search record if advocate brief filed)