*1 P.2d Arizona, Appellant, The STATE of COLLINS, Appellee.
Thomas Dale 2No. CA-CR 2043. Corbin, by William Atty. Robert K. Gen. Court of III, J. Jessica Gifford and Jack Schafer Roberts, Gen., Phoenix, ap- for Attys. Asst. July 1981. pellant. Rehearing Denied 1981. Premeau, Globe, appellee. Donald C.
Review Denied Oct.
HATHAWAY, Judge. Chief abuse its discretion in Did the trial court motion for a new trial That is misconduct? appeal. the sole on while charged driving with Collins intoxicated, with D.W.I. conviction prior months, and was preceding within the trial, guilty by found Prior intro- court ruled that the state could not results, duce into evidence Mesa, required by City Scales Conse- quently, proof of intoxication at Collins’ depended upon the testi- time of his arrest mony police officers. of one offi-
During the cross-examination he had advised cer who had testified that Collins not to drive his car from the im- lot,1 him pound defense counsel asked responded: “Why?” The officer “I breathalyzer reading was aware of his at the time arrest at 1:00 o’clock.” of his . mistrial, Defense counsel moved for a court, however, which was denied.2 response and directed ordered stricken disregard trial, In support of his motion for new Collins submitted an affidavit of the part: foreman which stated in trial,
“3)
That
the course of said
*2
281
wit-
right to
or results
confront adverse
why
breathalyzer
no
Amendment
nesses,
the
particular,
were
I
as the court’s interest in
brought out and in
as well
Am-
juror’s
made a written
of Officer
verdicts and the
interest
finality
note
of
bos’
to breatha-
dis-
referring
statement
a
from harassment after
in freedom
lyzer reading.
Callahan,
Ariz.
v.
119
charge.
State
See
Bar
(App.1978);
355
American
580 P.2d
4) That I did bring up
breathalyzer
the
by
Association,
Relating to Trial
Standards
during
to the
the
jurors
(Tentative
1968).
Draft
Jury,
5.7
Sec.
course of the jurors’ deliberations.
5)
deliberations,
That during said
I re-
then,
here,
the
is whether
The issue
ferred to my
during
*3
instruction and talked about the fact that
stricken testimony, but that he aided his
the defendant did not take the stand. The
memory with his
According
notes.
Rood,
Judge
situation here is different.
In addition to
thing
“...
gives
me
problem
is the flat-out
instruction,
statement of
ignoring
judge’s
jury
juror that he read the other members
[the]
considered evidence which had been strick-
jury
of the
evidence which had been exclud-
therefore,
jury
en. The
evi-
received “...
ed.”
dence
not
admitted
proposed
distinction is without mer-
not
to his
affidavit did
relate
taking
Arizona allows the
of notes and
processes”,
motives or mental
as
their use by jurors during deliberations.
24.1(d).
the terms are used in Rule
It relat-
We see no difference analytically between
ed to his conduct. How else can one
telling
about
testimony one
prejudicial
misconduct and its
effect?
telling
remembers and
them about such tes-
Justice,
Supreme
Now United
Court
States
timony with the aid of
one’s notes. A
Brennan,
William
stated in
v. Kocio-
“should no
more be forced to divulge his
written than his subjective
lek,
memories.”
(1955):
20 N.J.
tions or the occurrence of events verdict, that basis of does exist, not and this whether the condition happens or the event in or outside occurs room.” 118 A.2d granted The trial court properly a new trial. State, See Stevenson v. 89 Tex.Cr.R. S.W. I would affirm. *4 In the Matter of the ESTATE OF Reno
MUSTONEN, Deceased.
Amey MUSTONEN, Petitioner/Appellant, SCHROEDER, Repre- Donald R. Personal sentative of the Estate of Reno Musto-
nen; Mustonen, and the Estate of Reno
Respondents/Appellees.
No. 2 CA-CIV 3945. Berlin, Tucson, petition- Laurence M.
er/appellant. Gjurgevich by Edward C. Vin-
Vincent & cent, Tucson, respondents/appellees. BIRDSALL, Judge. appeal appellant’s is from a denial of decedent, against
claim the estate of the Mustonen, Reno for the value of services the dece- allegedly rendered return for certain promise dent’s unfulfilled to devise property appellant. real appeal raised on is whether the trial court determining abused its discretion did make written correctly 1. Prior to his arrest 4:46 a. 2. The court m. for the instant concluded that the an- offense, unresponsive, argued by Collins had been arrested at 1:41 a. m. swer was not de- driving intoxicated, while and had been fense counsel. released on bail.
Notes
the
made
be
reading of
can
his notes
jury foreman’s
trial
breathalyzer
reference why no
of
receipt
improper
as the
characterized
out,
was brought
Amobs’
Officer
rather,
or,
involving
the mental
evidence
statement.
[sic]
juror
verdict.
reaching
in
a
processes of
6) The breathalyzer
matter
con-
that
precedent indicates
We believe Arizona
sidered by me and did
me dur-
bother
characterized
this conduct
ing
deliberations,
the
and I con-
juror.
of a
processes
mental
involving the
sidered it
though
even
the Court had
such,
court should have refused
As
trial
the
told us not to.
altogether when
to
the affidavit
consider
7) During
deliberations,
said
my
read
for new trial.
motion
deciding the
notes reference
breathalyzer
the
to
Callahan,
the
dis-
supra,
v.
State
jurors.”
the other
the
instruction not to consider
regarded an
the hearing
At
on the motion for new
own
testify
failure to
in his
defendant’s
trial, the trial judge limited his considera-
trial court in that case refused
behalf. The
tion of the
part
the
affidavit to
of
jur-
to
affidavit from one of the
accept an
paragraph
read,
three that
“I made a writ-
that
did in
ors to
fact consider
ten note of Officer Ambos’statement refer-
rejected
the court
ar-
appeal,
this.
the
On
ring
a breathalyzer reading,” and to
the
were
mis-
gument
guilty
that
of
paragraph seven,
read,
“During said
receiving
by
conduct
evidence not admitted
deliberations,
my
I read
notes reference the
pointed
It
out
during trial.
that rule 24.1 is
jurors.”
to the other
exception
very
that
prevents inquiry
private
We
delibera-
do not
the trial
interfere with
jury. The
tions of the
court held
the
court’s
that
decision to grant a new trial to a
jury’s consideration of the
fail-
defendant
unless the
affirmative
state can
testify was not a type
ure to
of
ly
jury miscon-
show the
arbitrarily
trial court
or
acted
in
duct as enumerated
the rule
and that
abused its
v.
discretion. State
acceptance of the affidavit by
trial
the
Ariz.
589 P.2d
(App.1978).
judge
have
would
constituted an improper
24.1,
Rule
Pro-
Arizona Rules of Criminal
“subjective
the
inquiry into
motives or men-
cedure,
juror
receipt
allows the
affidavits
processes”
tal
impeach
changes
the
a verdict.
It
old
rule,
in the instant
incompetent
The facts
case
juror
which considered a
are similar
Here,
Callahan.
testify
to those in
as to matters inherent
were
disregard officer
told to
Ambos’ testimony
verdict.
consider
but did in fact
dur-
testimony
The rule does not allow such affidavits if
deliberations,
ing
ab-
their
they reflect the
or
motives men-
of a breathalyzer
sence of evidence
test.
processes
tal
led a
to assent or
does,
dissent from the
clear
verdict.” It
how-
be
It would
Callahan controls
ever, allow
misconduct,
evidence
affidavit in
here
this case if
including
receipt
“not
prop-
evidence
had attested
remembered
erly admitted
The
and then
it
rule
considered
seeks
protect
thus
v.
arriving
their verdict. See also
defendant’s Sixth
State
Landrum,
Ariz.App.
HOWARD,
Judge,