*1 The county attorneys deputies. and their which the indictment or information is to used for method has been tried. fact that many years persuasive. was not interpretation the fore- majority’s that I cannot that of the I must further make it clear going directly opposite statute majority subpoe- subscribe to the dictum of opinion dissent. The indicates that discretion, opinion speculates to the effect may, prosecutor’s nas in the issue may past grand jury for for trial or for related federal abuses of the any witnesses proceeding making in a criminal case. have had some influence in grand jury statute more restrictive Arizona Nowhere in the statute does the word law. ownMy speculations than the federal appear applied county “discretion” to the system, although indicate that the federal else, nor is attorney, prosecutor anyone by the hand of man and there- controlled there any reference “trial” as a limita- fore has been effective and perfect, tion county witnesses which the subject to a minimum of abuse. attоrney can call. We must further ask why closing phrase “or for witnesses on I dissent.
an indictment or information is to be tried” in the statute if the opening HOLOHAN, included Justice, dissenting. Chief
phrase “[b]y county attorney for wit- join in the dissent of Justice HAYS. prosecution,” applies nesses for the to trial witnesses. opinion negates mean- majority for
ing of the words “or such other witness- ” grand es as the ... direct .... other witnesses” can relate back only
“Such phrase
to the
“[b]y
county attorney
prosecution,
witnesses for the
...”
Peart, 5 Cal.App.2d
The California in that statute considered virtually
case is the same as our A.R.S. 13-4071(B)(2). The Court of California using reasoning, reaches
Appeals, the same result similar to that of the ignore tоo word “other”
opinion. They
and, fact, quotation in one of the statute court, altogether. An error drop
compounded just is error the same. apparent
I am sure it is to the members proposed opinion
of the court that the af- operation attorney
fects not
general grand but will vis-á-vis the grand of fourteen jury operations
affect the
HOLOHAN, Chief Justice. defendant, Roberts, Charles William extortion, was convicted of kidnapping and involving both the use a deadly weapon in violation of A.R.S. 13-1804 §§ and 13-604. The appealed defendant rais ing (1) three issuеs: jury whether the was placed in a coercive atmosphere; (2) wheth er the consecutive imposed sentences were 13-116; barred A.R.S. whether there was sufficient support evidence to defendant’s conviction for the offense of involving extortion the use a deadly wea¿ appeals on. The court of held that consecutive sentences legally imposed were and that there was sufficient evidence support the conviction involv for extortion ing deadly weapon. the use of a The court however, appeals, reversed the conviction issue, on the finding jury first that the was placed in a atmosphere. coercive Roberts, (App. 131 Ariz. pose issue, of cоnsidering the first whether jury was subjected to a coercive atmo- sphere. We accept approve that por- tion the opinion of appeals court which resolves the other two issues in the portion case. The of the opinion of the appeals dealing court of with the first issue is vacated.
The essential
are
faсts
that due to the
absence,
voluntary
defendant’s
he
tried
days,
absentia. The trial
lasted four
during which the state called ten witnesses
and introduced over 30 exhibits. The de-
any
fense did not call
witnesses but cross-
length.
examined
state’s witnesses at
begin
retired to
deliberations at
February
4:25 P.M. on
1980 and was
night
excused for the
at 6:00 P.M. Deliber-
following day
ations resumed the
at 10:00
1:50
A.M. At
P.M. the trial court called the
jurors
open
and counsel into
court where
following dialogue
place:
took
gentlemen, my
THE COURT: Ladies and
Corbin, Atty.
Robert K.
Gen. William
secretary has advised me that the fore-
Schafer, III,
J.
Dawley,
Attys.
Frank
Asst.
man has
indicated
Gen., Phoenix, for appellee.
hopelessly
deadlocked.
Who is the foreman?
Phoenix,
Thompson,
Richard L.
appel-
am,
lant.
THE FOREMAN: I
sir.
Sir,
THE
Numerous courts have held
appear
COURT:
does it
there
that the Bras-
no reasonable
that the
rule is not of constitutional
probability
field
dimen
sions,
judicial
can
verdict?
but it is a rule of
administra
tion,
supreme
supervi
based on the
THE
I posed
FOREMAN:
courts,
sory powers over the federal
last
night,
morning again, and
binding
E.g.,
thus is not
on the states.
again right аfter we came back from
Iowa,
Cornell v.
ed, we do not inquiry believe the mere into ERON, JJ., concur. the numerical standing of the resulted
in any FELDMAN, Justice, coercion of the jury. dissenting. with adoption “totality the contended, however, It the rule, of the circumstances” but must dissent trial court’s statement that: “There is a lot from the result because the of cir- evidence, of give so it a longer while cumstances here inescapable leads to the see if you can’t reach a verdict” was coer conclusion that the cumulative effect of the cive, especially because the only evidence in trial court’s jury. actions influenced the this case had been the state’s evidence. however, This position, reаching conclusion, does not take into In this the first cir- account what is shown by the cumstance to be making record. considered is the inquiry the majority opinion itself. As the The trial court’s statement to be notes, the question regarding trial court’s nothing more than a recognition of the fact numerical division the jury is condemned that the jury had a large amount of faсts to because “there is danger possible more sift before a verdict. prejudice any possible good than may There had been a four-day trial with over result in the employing practice.” The im- 30 exhibits admitted in evidence. Although portance which should be placed on this all state, the witnesses were called by becomes clear when оne notes that in feder- the defense counsel conducted extensive al criminal cases the alone results in witnesses, particu- crossr-examination automatic reversal. Brasfield v. United larly Moreover, the victim. during an in- States, 448, 450, U.S. S.Ct. discussion, chambers defense counsel indi- L.Ed. cated that calling he would be the prosecu- tion’s (RT chief in his witness case in сhief. The second circumstance which should be of February 65.) 1980 at open Later in noted is the fact the answer to the court and in the jury’s presence, defense showed only remaining one holdout Honor, counsel stated: “Your among at this time jury. the members of the If the defense, chief witness for already 8-4, division had might been 7-5 or be having cross-examination, testified on safe to conclude that had not defendant has nothing else to show been damaging. But when it was revealed (RT court. I would now rest.” Febru- that the division was 11 juror to the one ary is, therefore, 72.) 1980 at It effectively clear was singled put out and under that merely because the defense chose not considerably pressure more than if the divi- present tо separate greater. the evidence was sion had been The vice of this is not Brasfield, all state’s evidence. well supra: described in barely effect with a unanimous verdict an hour inquiry] upon divid- [T]he [of ed will often depend upon circum- judge after the inquiry by revealed an stances which cannot be properly known split. eleven to one judge to the trial appellate or to the Another factor to be considered here is courts and vary widely different learning that after of the eleven to one situations, general but in tendency its is division, the trial court commented that coercive. It can rarely resorted to give there was “a lot of so bringing without degree, bear in some you awhile аnd see if can’t reach a measurable, although serious an im- verdict.” The defendant was tried in ab- proper influence from sentia,1 so the had heard no evidence whose deliberations every consideration context, him. In that other than that of the evidence and comment on the statement almost a law expounded charge, in a рroper are proscribed evidence. Such comments should be excluded. Constitution, 12. At- the Arizona art. 272 U.S. at at 71 L.Ed. S.Ct. tempting put possible the best face at 346. From a pragmatic standpoint, matter, contends that when such a division is announced and elev- commenting was not on the nature of en pairs eyes turn single to look at the merely “quantity.” the evidence but on its holdout, impossible it is to conclude that the argue pre- One could that the Constitution subjected was not pressure after Leaving cludes types both comment. the jury had returned to the jury room. As aside, however, reasonably possible it is noted, appeals court of the situation no judge’s quan- that the trial comment on the doubt had a “... doublе coercive effect *5 tity persuasive of evidence have had a softening the minority resistance of the and juror part effect on the and is totali- of the solidifying the majori- determination of the ty of the circumstances to be considered.2 ty.” Chief telling Justice Udall made a remark in his dissent a similar case in- note, also, that before the ini- We should Voeckell, volving the or “dynamite”, in- inquiry, tial the foreman had informed the struction: judge “very had jury that the deliberated
With the scales thus
balanced
delicately
the case
conscientiously”, had discussed
the
gave
court
its own motion
the
thoroughly
hope
and had no
a
question
instruction in
which certainly ac-
therefore,
Apparently,
unanimous verdict.
complished
intended,
the purpose
displayed
arbitrary
the holdout had not
an
within fifteen minutes
they
thereafter
the law or
unreasonable attitude toward
agreement.
announced
To my mind that
evidence,
the
but had acted out of reasoned
constituted coercion and was an abuse of
juror
it
conviction. No doubt that
found
discretion which
explаined
can not be
enough
difficult
as the lone dis-
remain
away by any high sounding words as to
ballots, and it is reasona-
senter after three
the fairness or innocuousness of the in-
singling
ble to infer that
him out and then
struction.
adage
“proof
The old
that
commenting
quantity
on the
of the evidence
the pudding
eating”
is in the
applies. may
persuade
have tended to
him to surrеn-
Voeckell,
v.
der his conviction and conform to the other
145,
State
69 Ariz.
210
jury
P.2d
980
the
on the next
proof
eleven members of
the
pudding
very
prevent-
here is
evil to be
although
juror
that
in ballot. This is the
question had held
the evidence of
evening
strong
out
ed. No matter how
ballots,
before and three
guilt,
judge
returned
our
is not
system
under
Rickerson,
trial,
1.
95
625 P.2d
Not
2. State v.
N.M.
defendant absent
(1981),
but he called no
case
witnesses. While the
1184-85
the New Mexico
points
majority, acknowledges
out that there had been much cross-ex-
that
relied on
amination,
lay
eyes
I
the court’s com-
think that in the
of most
additional
instructions —and
persons
interpreted
part
if there had been
be so
“a lot of evidence”
ment here could
—are
totality
from the
be
had come
State.
considered.
allowed to help persuade
juror
prejudice
a
to surren
should
requires
not be one which
“
der his conviction and
‘Every
conform.
this or any court to know the unknowable.
attempt [by the
to drive men into an To use such a
court]
test “will result in an endless
agreement which they would not have
decisions,
chain of
each link thereof tem
”
reached
is
freely,
perversion
justice.’
pered
forged
varying
with
facts and
Voeckell,
State v.
trial court’s remarks were prejudicial “not However,
or coercive3.” I, neither it nor anyone
nor except juror (and perhaps
not he) even can ever know whether the
trial court’s conduct was in fact coercive. this,
Because of the test used to determine prevents 3. The use of “coercive” is “coercion” of the but also unfortunate. I use it influencing persuading because it is the word used opinion subject. any way. and in all the cases on the However, the Constitution forbids