STATE of Arizona, Appellee, v. James P. LAUTZENHEISER, Appellant.
No. CR-93-0363-PR.
Supreme Court of Arizona.
Sept. 20, 1994.
881 P.2d 339
Olsen also failed to cooperate with the State Bar‘s investigation into this matter.
Procedural History
The complaint was filed on November 4, 1992. As Olsen resides outside of Arizona, the complaint was served upon the clerk of the Supreme Court.3 Olsen failed to respond, and the complaint was deemed admitted.4 He was notified of his right to be heard in mitigation and, again, failed to respond. The Committee‘s report was filed on January 21, 1994. Olsen was notified of the opportunity to object to the Committee‘s report and to file a statement on review before the Commission. He did not object, did not file a statement on review, and did not request oral argument before the Commission.
Discussion of Decision
The Commission agrees with the Committee‘s finding that Olsen violated ER 3.3(a)(1) and ER 8.4(c).
The American Bar Association‘s Standards for Imposing Lawyer Sanctions are used by the Court in considering the appropriate sanction for a violation of the Rules of Professional Conduct. In In re Ockrassa, 165 Ariz. 576, 799 P.2d 1350 (1990). The Commission uses this guideline, as well.
[REDACTED] Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, submits a false document and causes a significant or potentially significant adverse effect on the legal proceedings. Standard 6.1, Standards for Imposing Lawyer Sanctions. Disbarment has been imposed in Arizona for submitting false affidavits. In In re Fresquez, 162 Ariz. 328, 783 P.2d 774 (1989). Olsen‘s conduct merits disbarment. However, Olsen is not a member of the State Bar of Arizona. As such, he cannot be disbarred or suspended from this association. The Commission agrees with the Hearing Committee that the only sanction that can be imposed upon Olsen in this proceeding is censure. However, the Commission strongly condemns Olsen‘s deception. The Commission specifically requests that the bar associations of Utah and California consider Olsen‘s deceitful conduct in Arizona in imposing reciprocal discipline, and before reinstating Olsen to active membership.
RESPECTFULLY SUBMITTED this 6th day of July, 1994.
/s/Steven L. Bossé
Steven L. Bossé, Chairman
Disciplinary Commission
Dean W. Trebesch, Maricopa County Public Defender by Lawrence S. Matthew, Phoenix, for appellant.
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 case 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.
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
[REDACTED] 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.
[REDACTED] 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
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.
[REDACTED] 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 (1878)). 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, 1218 (1981).
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 cases 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.
CORCORAN, Justice, specially concurring:
I concur both with the result in this case and with the test applied by the majority. In determining whether the defendant received a fair trial from an independent jury whose members “were free from intimidation or undue pressure,” we must consider the “totality of the circumstances.” At 9, 881 P.2d at 341.
I do not entirely agree, however, with the majority‘s analysis of the specific circumstances present in this case. I am concerned by the emphasis that the majority places on the “coercive” effect of sending the jury back for further deliberations after polling them regarding their vote. The majority suggests that the polling process itself made an unpressured verdict no longer possible. At
As Justice Martone points out in his dissent, the judge in this case complied with the procedures established by the Arizona Rules of Criminal Procedure; the process of polling the jurors and directing them to return to the jury room for further deliberations is expressly prescribed in the rules. At 12, 881 P.2d at 344 (Martone, J., dissenting);
One of the circumstances that concerns me is juror number 1‘s (“Juror 1“) demonstrated susceptibility to influence, a factor not considered in the majority‘s opinion. I am bothered by the majority‘s reference to checking Juror 1 for bruises; not only is this reference totally unwarranted by the facts presented to us in this case, but the reference tends to obscure one of the important factors that we should consider: Juror 1‘s demonstrated willingness to allow the jury to attempt to return a verdict with which she did not agree.7 At 10, 881 P.2d at 342. Juror susceptibility to influence by fellow jurors requires us to scrutinize the coercive effect of the other factors more carefully.
I, like the majority of the court, am particularly concerned by the timing of the deliberations. See at 10, 881 P.2d at 342. The possibility for undue influence is inherently present when the jury is sent to deliberate in a DUI case late in the afternoon on New Year‘s Eve. Given the special circumstances of this case, a better procedure would have been to recess the jury after the polling process and reconvene the jury for further deliberations after the holiday.
When the timing of the deliberations is combined with the potential influence of the juror polling process and Juror 1‘s susceptibility to influence from other jury members, I cannot say that the defendant received “a fair trial from an independent jury.”
MARTONE, Justice, dissenting.
I dissent because I do not understand how, in precisely following the rules of court, a judge could be said to have coerced a jury. What the judge did here is the exact procedure prescribed by the Arizona Rules of Criminal Procedure.
After the verdict is returned and before the jury is discharged, it shall be polled at the request of any party or upon the court‘s own initiative. If the responses to the jurors do not support the verdict, the court may direct them to retire for further deliberations or they may be discharged.
In this case, a juror responded that it was not her verdict. Under
What then accounts for the court‘s decision? What justifies its degree of concern, exemplified by its metaphorical suggestion that the juror “should have been checked for bruises?” Ante, at 10, 881 P.2d at 342. I confess I do not know. I speculate that the court does not want jurors deliberating on New Year‘s Eve. With this proposition, I quite agree, but this is a matter of jury management, not legal coercion. I therefore respectfully dissent.
881 P.2d 345
In the Matter of a Disbarred Member of the State Bar of Arizona, Thomas Keith ENGAN, Bar No. 010612, Respondent.
No. SB-94-0066-D.
Comm. Nos. 89-1554, 89-1907, 90-0721 and 90-1846.
Supreme Court of Arizona.
Sept. 23, 1994.
Yigael M. Cohen, State Bar Counsel and Harriet L. Turney, Chief Bar Counsel, State Bar of Arizona, for the State Bar.
JUDGMENT AND ORDER
This matter having come on for hearing before the Disciplinary Commission of the Supreme Court of Arizona, it having duly rendered its decision and no timely appeal therefrom having been filed, and the Court having declined sua sponte review,
IT IS ORDERED, ADJUDGED AND DECREED that THOMAS KEITH ENGAN, a disbarred member of the State Bar of Arizona, is hereby disbarred from the practice of law for conduct in violation of his duties and obligations as a lawyer, as disclosed in the commission report attached hereto as Exhibit A.
IT IS FURTHER ORDERED that THOMAS KEITH ENGAN shall pay restitution in the following amount(s) to the following individual(s):
Charles S. Frink $300.00
Arthur Merino $200.00
IT IS FURTHER ORDERED that THOMAS KEITH ENGAN shall comply with all applicable provisions of
IT IS FURTHER ORDERED that THOMAS KEITH ENGAN shall pay the costs of these proceedings in the amount of $730.80, together with interest at the legal rate from the date of this judgment.