STATE of Arizona, Appellee, v. Rudy Robert MILLER, Appellant.
No. CR-92-0287-PR.
Supreme Court of Arizona.
June 14, 1994.
875 P.2d 788
The purpose of lawyer discipline is not to punish the offender, but to protect the public, the profession, and the administration of justice. In re Neville, 147 Ariz. 106, 708 P.2d 1297 (1985). The majority of the Commission agrees with the Committee that a five year suspension, the maximum suspension permissible under the Supreme Court Rules, will achieve that goal, in part. In addition, the Commission recommends that Rubenstein be ordered to make restitution to Client A in the amount of $1,348.25. Because the Committee and Commission are concerned that there may be some undisclosed problem underlying Rubenstein‘s misconduct, it is also recommended that Rubenstein participate in either the Oklahoma Lawyers Helping Lawyers Program or the Membership Assistance Program of the State Bar of Arizona. The recommendation that Rubenstein obtain additional continuing legal education instruction on the topic of ethics will also serve to protect the public, by reminding Rubenstein of his duties as an attorney, and will help to prevent such ethical breaches in the future. Finally, the probationary terms set forth above will ensure that Rubenstein‘s practice and procedures are monitored and will discourage future misconduct of a similar nature.
RESPECTFULLY SUBMITTED this 10th day of February, 1994.
/s/ Steven L. Bosse’
Steven L. Bosse‘, Chair
Disciplinary Commission
Grant Woods, Arizona Atty. Gen. by Paul J. McMurdie, Chief Counsel and Diane M. Ramsey, Asst. Atty. Gen., Phoenix, for appellee State of Ariz.
OPINION
ZLAKET, Justice.
Defendant was convicted of endangerment and unlawful flight from a law enforcement vehicle. The trial court suspended defendant‘s sentence, placed him on concurrent three-year terms of probation, and imposed a $150,000 fine plus a $100 felony assessment penalty. The court of appeals affirmed. State v. Miller, 173 Ariz. 421, 844 P.2d 588 (Ct.App.1992). We granted review to decide whether the trial court abused its discretion in refusing to hold an evidentiary hearing on defendant‘s claim of jury misconduct. We hold that it did. We have jurisdiction pursuant to
At argument on the motion, the prosecutor stated that Tucker told him the note did not affect his decision. He also advised the court that the other jurors had said they only found out about the note after reaching their verdict. The state therefore opposed an evidentiary hearing on the matter. The court rejected the defense request, refused to take testimony or question any of the jurors, and denied the motion for new trial.
It is undisputed that a criminal defendant is entitled to be tried by an impartial jury.
In such a situation, the court‘s response should be “commensurate with the severity of the threat posed.” United States v. Thomas, 463 F.2d 1061, 1063 (7th Cir.1972). In this case, the substantial risk of prejudice demanded something more than what the trial court did. Any private communication, contact or tampering with a juror gives rise to a strong presumption that the verdict has been tainted. Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954); Mattox v. United States, 146 U.S. 140, 148-50, 13 S.Ct. 50, 52-53, 36 L.Ed. 917 (1892). The fact that the communication here related to the ultimate issue in the case—defendant‘s guilt or innocence—should have persuaded the judge that further inquiry was necessary.
Without questioning the jury, the court could not have known whether other jurors knew of the note or received similar communications from the alternate, and in either case, whether they were improperly influenced by him. According to defense counsel, the alternate seemed to have had a good relationship with the other jurors as well as with Tucker. Even the prosecutor acknowledged in his remarks to the trial court that the alternate had apparently been well liked by his peers. And the fact that the alternate had previously heard all the evidence may have caused Tucker or the other jurors to place more weight on his opinion than they would otherwise accord a stranger. Under these circumstances, the possibility of improper influence certainly warranted investigation. Thus, we hold that the trial court abused its discretion in denying the request for an evidentiary hearing.
The difficulty here is in fashioning an appropriate remedy, as this trial occurred in June and July of 1990. The arguments against ordering a hearing at this late date are understandable. Memories fade with time. Assuming the jurors can be reassembled, testimony obtained now might be suspect, and its reliability subject to challenge. Moreover, the judge who saw the witnesses and heard the case on its merits has long since retired. Ordering a hearing now will leave another judge who had no involvement in the trial with the difficult task of determining whether the communication prejudiced the verdict.
We have previously recognized that in some situations, lengthy delay necessitates a new trial. See, e.g., State v. Hart, 110 Ariz. 55, 514 P.2d 1243 (1973) (twelve-year delay and death of trial judge made a new trial necessary, as a hearing to reconstruct the transcript would have been futile). Other
The contrary view, that delay should not preclude a hearing where jurors are available, is not without support. See United States v. Thompson, 908 F.2d 648 (10th Cir.1990), opinion modified on reh‘g per curiam, id. at 655 (1990). Thompson involved allegations that jurors had newspapers containing harmful articles in their possession. As in this case, the trial court erred in failing to hold a hearing to determine if defendant was prejudiced. Although the circuit court‘s initial remedy was a new trial, it later modified its opinion to instead remand for a determination of whether a hearing years later could, in fact, elicit reliable responses or whether the delay made a new trial inevitable.
A majority of this court agrees with the foregoing approach.1 While the delay in this case may have rendered a productive hearing at this point unlikely, the lower court is in the best position to determine if the jurors can be reassembled and whether their memories are sufficiently reliable to ensure that this defendant received a fair trial. Justice Corcoran‘s special concurrence suggests that it may not be necessary for the trial judge to reassemble and interrogate all of the jurors. We leave that question for another day, noting only that the improper influence of even one juror taints a verdict. Whitson v. State, 65 Ariz. 395, 399-400, 181 P.2d 822, 824-25 (1947); Lovett v. State, 516 A.2d 455, 475 (Del.1986), cert. denied, 481 U.S. 1018, 107 S.Ct. 1898, 95 L.Ed.2d 504 (1987); United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.1977), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977).
In Arizona, juror misconduct warrants a new trial if the defense shows actual prejudice or if prejudice may be fairly presumed from the facts. State v. Vasquez, 130 Ariz. 103, 105, 634 P.2d 391, 393 (1981) (emphasis added). Prejudice may be presumed here, because “[i]n a criminal case, any pri
Justice Martone‘s concurrence suggests that Remmer may be inapplicable here because the communication came from an alternate juror, which he asserts is somehow less egregious. His conclusion is based on the premise that alternate jurors are not truly discharged until after the verdict is reached. However, nothing in the record before us, which is incomplete on this issue, indicates that this alternate was only “conditionally excused” as Justice Martone contends.3
Furthermore, there is no provision in the rules for such a practice. Rather, the Arizona Rules of Criminal Procedure make it abundantly clear that a real distinction exists between jurors and alternates once deliberations begin.4
Justice Martone also indicates that some judges now encourage jurors to discuss the case during trial, implying that but for the timing of this communication, it might not have constituted juror “misconduct” at all. Such a practice is contrary to
We
On remand, then, the trial judge must award a new trial unless the state can prove beyond a reasonable doubt that the contact did not impact the verdict. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) (federal constitutional error requires showing that error is harmless beyond reasonable doubt); Gibson, 633 F.2d at 853-54 (finding Chapman applicable in third party contact cases); State v. Washington, 182 Conn. 419, 428, 438 A.2d 1144, 1149 (1980) (applying reasonable doubt standard to case involving jurors discussing merits of the case prior to deliberations). Testimony by the jurors that they were not improperly influenced may not itself dispose of this burden. Whitson, 65 Ariz. at 399, 181 P.2d at 824; but see Smith v. Phillips, 455 U.S. 209, 217 n. 7, 102 S.Ct. 940, 946 n. 7, 71 L.Ed.2d 78 (1982) (citing Dennis v. United States, 339 U.S. 162, 171, 70 S.Ct. 519, 523, 94 L.Ed. 734 (1950)). While we agree with Smith that juror testimony regarding bias is not “inherently suspect,” we note that it is the trial judge‘s duty to consider the surrounding circumstances in addition to such testimony. Where the circumstances render the likelihood of prejudice great, a juror‘s own conclusion that he or she was not influenced should be questioned. The right to an impartial jury demands that the judge err in favor of defendant in such circumstances.
We therefore vacate the court of appeals’ opinion and remand this case to the trial court to determine whether a hearing at this late date is feasible. If so, the judge is to proceed with the hearing and make appropriate findings consistent with this opinion. If not, the judge must set aside the verdict and order a new trial.
FELDMAN, C.J., and MOELLER, V.C.J., concur.
CORCORAN, Justice, specially concurring:
I concur in the result reached by the majority.
The trial court abused its discretion by denying the defendant‘s request for a hearing. A hearing should have been held so that jurors and other witnesses could have testified at a time when recollections were most fresh. I believe, however, that a new judge can hold a hearing at which available jurors and other witnesses can testify about the past events. I do not believe that it is necessary or indispensable to have the testimony from all jurors before relief could be granted or denied to defendant. We are remanding so that the trial court can have a hearing to elicit the facts. We should not prejudge what the evidence will be.
MARTONE, Justice, concurring in the judgment.
I agree that the trial court committed error when it refused to hold an evidentiary hearing on the question of whether the alternate juror‘s note affected the verdict. I share the court‘s concern that the trial court declined to hold a hearing and that the state opposed a hearing. It would have been so simple at that time for the trial judge to have called in the alternate juror and juror Tucker, and examined them. He also could have conducted whatever further inquiry may have been indicated. Trial judges are very used to telling jurors throughout the trial that they must not discuss the case with each other. They are also very used to examining jurors who violate the court‘s admonition. Rarely is any harm done.
Thus, we must now do what the trial judge should have done, and I join in the court‘s disposition. I write separately because I do not share the court‘s intense concern about this particular communication from an alternate juror. Nor do I share the concerns
This is not a case of jury tampering. When a third party or litigant privately communicates with a juror during trial about the case, it is cause for great concern. It is for that reason that it is “deemed presumptively prejudicial,” and requires an evidentiary hearing to get to the bottom of it. Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). But this is not such a case. The note here came from an alternate juror, someone who, although excluded from deliberating, was in all other respects a juror. See
This leads me to the second point. The remedy for the trial court‘s failure to hold a hearing is to now grant an evidentiary hearing. We cannot speculate about prejudice. My experience suggests that jurors are, for the most part, quite independent and not easily tainted by the views of their colleagues. Absent an evidentiary hearing that would show otherwise, we cannot say that this was not a fair trial. Indeed, as the court itself notes, “the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.” Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 945, 71 L.Ed.2d 78 (1982). Even in the case of real jury tampering, as in Remmer, a new trial is not the initial remedy. Instead, the trial court must hold a hearing to decide whether there has been prejudice. Id. at 216, 102 S.Ct. at 945. If a hearing is appropriate for true jury tampering, it is all the more appropriate for a case in which an alternate juror improperly communicates with a regular juror. The potential for harm is much less here.
On remand, the judge and counsel will have an opportunity to interrogate the alternate juror, regular juror Tucker, and any other juror whose testimony may be desirable, just as though Tucker had received the note during trial. See
Due process entitles the defendant to a fair trial, not a perfect one. Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). On remand, the judge will get to decide whether the alternate juror‘s communication made a difference. That is all common sense requires.
Notes
The only purpose of a hearing now would be to elicit testimony from the jurors—assuming they could all be located—that they did not receive this or similar communications, and if they did, that it did not affect their verdict. However, testimony by the jurors themselves that they were not improperly influenced by a third party communication may be insufficient depending on the circumstances. Whitson v. State, 65 Ariz. 395, 399, 181 P.2d 822, 824 (1947). Adding the passage of time and the retirement of the original judge to this mix, it appears to us that a new trial is necessary and that remand now will only result in a waste of judicial resources. We also worry that a hearing at this late date might raise due process concerns. People v. McNamee, 67 Mich.App. 198, 205, 240 N.W.2d 758, 762 (1976); People v. Miller, 92 Ill.App.3d 1148, 1152, 416 N.E.2d 765, 769 (1981).
Indeed, judges elsewhere (unconstrained by