State v. Cuny

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) ) Appellee, v. JAMES PATRICK CUNY, Appellant. 1 CA-CR 09-0171 DIVISION ONE FILED: 10-05-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-121925-001 SE The Honorable Carolyn K. Passamonte, Judge Pro Tempore The Honorable Helene F. Abrams, Judge CONVICTIONS AND SENTENCES VACATED; REMANDED Terry Goddard, Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Sherri Tolar Rollison, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Louise Stark, Deputy Public Defender Attorneys for Appellant Phoenix W E I S B E R G, Judge ¶1 James Patrick Cuny ( Defendant ) appeals from his convictions for possession or use of narcotic drugs, possession of drug paraphernalia, and the sentences imposed. alleges that jeopardy the barred Fifth his Amendment s second protection trial. We Defendant against agree double and vacate Defendant s convictions and sentences and remand the matter to the trial court to dismiss the charges against him with prejudice. PROCEDURAL HISTORY ¶2 Defendant was indicted for possession or use of narcotic drugs (heroin), a Class 4 felony, and possession of drug paraphernalia charges arose when (two a balloons), detective a Class arrested 6 felony. Defendant The on an unrelated matter, and in a search incident to arrest, found two balloons containing heroin in his pants pocket. Defendant claimed that he had borrowed the pants from a friend and did not know the balloons were in the pocket. Defendant s friend testified that the balloons containing the drugs belonged to him. ¶3 While the jury was deliberating during the first trial, Juror No. 6 submitted this written question to Judge Pro Tem Passamonte: For purposes of demonstration, when I got home last night I had an idea. I wear jeans with the same little side pocket like Mr. Cuny claims he had on. The heroin was described as feeling like hard raisins. I had my jeans on with the little side pocket and I put two raisins in it. When I put my 2 hand into the regular pocket I can feel the raisins. Can I have the jurors feel the pocket? It might be a key demonstration to help us render a verdict. ¶4 The court questioned Juror 6 in the presence of counsel and asked her whether she had shared her question with the other jurors. She said she had not done so, but when asked if she had discussed your question at all with any of the other jurors, she responded that she did share that with them. The court asked Juror No. 6 if any other juror had seen the question or had just heard her description and she said, Just verbally. The court then asked, As best as you can recall, what did you say to court? them about your concern and your suggestion to the Juror No. 6 responded that Well, I just thought that it would be helpful [in] rendering a verdict. It s one more piece of evidence I think that might help us in making our decision. ¶5 Neither counsel had other questions for Juror No. 6. Juror No. 6 was excused and the court advised counsel that the alternate juror was available for deliberations. The prosecutor, however, indicated that the State has some serious concerns that [the juror] did discuss this with the rest of the jury. I think we re towing the line of a mistrial here. I d be interested in talking to my counter partner to see exactly where we go from here. Defense counsel informed the court that I think our position is going to be we want to go ahead and have- 3 we re not going to move for a mistrial." additional jury instruction reiterating Counsel requested an the previously given instruction that the jurors were not to do independent research, conduct experiments, go to the crime scene or attempt to duplicate events testified to at trial. ¶6 without After the prosecutor consulted with his office, but argument, the State moved for a mistrial. Defense counsel objected, stating, I don t think a mistrial is appropriate. I think that a curative instruction could be given to them. They should disregard that. Apparently they didn t conduct the experiments themselves. I think it can be resolved. I think that if a mistrial is granted I think Mr. Cuny is prejudiced in a sense. So, I think it can be cured. [Defendant] was prepared for the trial. Had the trial. And the second time around would give certainly give the State an additional opportunity to try to close some of their holes. Additionally, it would for us as well. I . . . think we re in worse footing for the second time. On a worse footing. And so I think it can be cured. The judge did not voir dire the other jurors to discover what Juror No. 6 had communicated to them during deliberations or determine whether they were prejudiced, make any other relevant inquiries or consider possible mistrial. alternatives to declaring The judge ruled: I m going to grant the State s request for a mistrial in this case. I think that the danger is too great. That number one, Juror No. 6 has already discussed at least her 4 a question with the rest of the jury. And her question is in clear violation of the final instructions. Also, that she may have discussed what steps she d already taken to prepare for the Court s granting of her request to conduct this experiment with the other jurors. And I just think the danger is too great that this jury has been tainted by the actions of Juror No. 6, and that a curative instruction would not address that problem. So, I am going to declare a mistrial in this matter. ¶7 Defendant was convicted in a second trial of the same charges with two prior felony convictions and sentenced to concurrent prison terms of ten years for possession or use of narcotic drugs paraphernalia. pursuant to and 3.75 years for possession Defendant timely appealed. Arizona Revised Statutes of drug We have jurisdiction (AA.R.S.@) sections 12- 120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A)(2010). DISCUSSION ¶8 error Defendant claims the trial court committed reversible by declaring a mistrial during the first trial over Defendant s objection without a showing of manifest necessity. He further alleges that the State violated his Fifth-Amendment right not to be placed in jeopardy twice for the same offense by proceeding with a second trial that resulted in his convictions and sentences. We agree. 5 Double Jeopardy ¶9 The Double protects defendants Jeopardy against Clause, both U.S. Const. multiple amend. prosecutions multiple punishments for the same offense. V, and State v. McGill, 213 Ariz. 147, 153, ¶ 21, 140 P.3d 930, 936 (2006) (citing Witte v. United States, 515 U.S. 389, 391 (1995)). We determine de novo whether the State violated Defendant s right against double jeopardy. Id. Even if a defendant raises the issue for the first time on appeal, a double jeopardy violation constitutes fundamental, prejudicial error. State v. Ortega, 220 Ariz. 320, 323, ¶ 7, 206 P.3d 769, 772 (App. 2008)(citing McGill, 213 Ariz. at 147, ¶ 21, 140 P.3d at 936)). See also State v. Millanes, 180 Ariz. 418, 421, 885 P.2d 106, 109 (App. 1994) (stating that because right against double jeopardy is fundamental to the American system of justice, it must be enforced whenever a violation is determined to exist [and] . . . is not waived by the failure to raise it in the trial court ). 1 ¶10 The Double Jeopardy Clause embraces the defendant s valued right tribunal. to have his trial completed by a particular Arizona v. Washington, 434 U.S. 497, 503 (1978) (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). 1 This right, Although Defendant objected to the mistrial, he did not move to dismiss the indictment under Rule 16.1, Arizona Rules of Criminal Procedure, after the trial court reset the matter for a second trial. 6 however, must in some instances be subordinated to the public s interest in fair trials Wade, 336 U.S. at 689. designed to end in just judgments. When a defendant moves for a mistrial, the state generally may retry the defendant unless the mistrial was the result overreaching. of prosecutorial or judicial State v. Aguilar, 217 Ariz. 235, 238, ¶ 10, 172 P.3d 423, 426 (App. 2007). over misconduct defendant s When the court orders a mistrial objection, however, the defendant may be retried without violating his right against double jeopardy only if taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. Jones v. Kiger, 194 Ariz. 523, 526, ¶ 8, 984 P.2d 1161, 1164 (App. 1999) (quoting Arizona v. Washington, 434 U.S. at 506, n. 18)). Manifest Necessity ¶11 We review a trial court s necessity for an abuse of discretion. finding of manifest State v. Givens, 161 Ariz. 278, 279, 778 P.2d 643, 644 (App. 1989). Although the trial to court is usually in the best position determine whether manifest necessity requires a mistrial, . . . the trial judge must recognize that the defendant has a significant interest in deciding whether to take the case from the jury and retains primary control over the course to be followed in the event of such error. Jones, 194 Ariz. at 526, ¶ 9, 984 P.2d 7 at 1164 (quoting United States v. Dinitz, 424 U.S. 600, 609 (1976)). Thus, when the court errs in determining that manifest necessity exists and sua sponte declares a mistrial without the defendant s consent, the Double Jeopardy Clause bars a retrial. McLaughlin v. Fahringer, 150 Ariz. 274, 277-78, 723 P.2d 92, 9596 (1986). ¶12 'Manifest necessity' can arise in many different situations and the courts have not attempted to adopt a single, all encompassing definition. 172 P.3d at 427. And, Aguilar, 217 Ariz. at 239, ¶ 14, although absolute necessity is not required, the United States Supreme Court has said there are various degrees of necessity and we require a high degree before concluding (quoting Arizona omitted). The that v. a mistrial Washington, prosecutor manifest necessity. has burden. ¶13 when 434 appropriate. U.S. heavy at burden Id. 506)(citation to demonstrate Gusler v. Wilkinson, 199 Ariz. 391, 395, ¶ 18, 18 P.3d 702, 706 (2001). necessity a is emphasizes the Indeed, the very term manifest magnitude of the prosecutor s Id. (quoting Arizona v. Washington, 434 U.S. at 505). A mistrial is not warranted under this strict standard the court has the ability to prevent its necessity. Evans v. Abbey, 130 Ariz. 157, 159, 634 P.2d 969, 971 (App. 1981). Thus, when a trial court fails to consider viable alternatives to declaring a mistrial, manifest necessity has not 8 been shown. See United States v. Jorn, 400 U.S. 470, 486-87 (1971) (trial judge erred by sua sponte declaring mistrial based on his belief that government s witnesses not advised of FifthAmendment rights, but failed to consider less extreme methods to cure defect such as granting continuance to allow witnesses to consult with counsel); McLaughlin, 150 Ariz. at 277-78, 723 P.2d at 95-96 (holding that where prosecutor had referred to possibly inadmissible necessity consider evidence shown during requiring alternative of opening mistrial short statement, where recess to no court manifest failed resolve to evidentiary issue); Gusler, 199 Ariz. at 395, 18 P.3d at 706 (finding no manifest necessity to declare mistrial after trial court received ambiguous note from jury indicating impasse on several counts, but failed to described full content of note to counsel, preventing them from taking action, and failed to make specific inquiry to clarify the ambiguity); 41, ¶¶ 18-21, prosecutor 172 failed P.3d to at Aguilar, 217 Ariz. at 240- 428-29 disclose a (concluding ballistics that report where prior to trial, no showing of manifest necessity to warrant mistrial as court had continuance reasonable to allow alternatives the defendant of to granting review the a short report or granting defendant s motion to preclude evidence as a disclosure violation); Jones, 194 Ariz. at 526-27, ¶¶ 10-12, 984 P.2d at 1164-65 (no manifest necessity justifying sua sponte mistrial 9 where State s witness gave inadmissible hearsay testimony and court ignored defense counsel s assertion that the trial was not incurably damaged and failed to consider the alternative of giving curative instruction); Evans, 130 Ariz. at 158-160, 634 P.2d at 970-972 (finding court abused its discretion in declaring mistrial where juror engaged in conversation with a witness, but on voir dire, no juror admitted overhearing conversation, and court failed to determine if jury actually prejudiced or to consider alternative of merely dismissing that juror). ¶14 These cases demonstrate that a trial court must make appropriate inquiries, carefully weigh conflicting interests, consider all possible alternatives and scrupulously examine all relevant factors before declaring a mistrial. See United States v. Bates, 917 F.2d 388, 395-96 (9th Cir. 1990) (appellate court must consider four factors in evaluating trial court s declaration of mistrial without defendant s consent: hear from both parties; considered alternatives and chose least harmful; acted deliberately; properly found defendant could benefit from mistrial); Smith v. Mississippi, 478 F.2d 88, 96 (5th Cir. 1973) (finding no abuse of discretion in declaring mistrial sought by prosecutor because of tainted juror where trial court had fully determined what had actually transpired, was sensitive to the opposing requirements on his discretion and had painstakingly 10 weighed all the relevant factors); United States v. Kanahele, 951 F. Supp. 928, 941-42 (D. Haw. 1996) (upholding grant of mistrial based on juror misconduct over defendant s objection after extensive inquiry, lengthy consultation with counsel and careful consideration of other alternatives). Here, the trial judge did none of these. ¶15 had The trial judge failed to make any inquiry as to what actually occurred during deliberations. Except for questioning Juror No. 6, she did not voir dire the other jurors to determine with whom Juror No. 6 communicated, what, if anything, they heard and whether or not they were prejudiced by the alleged communication. the jurors consider may the have been possibility Even assuming that some or all of improperly of influenced, attempting to she did rehabilitate not them. Without any factual determination, the court simply made the assumption that Juror No. 6 discussed the question with the rest of the jury and that she may have discussed what steps she d already taken to prepare for the court s granting of her request to conduct the experiment. She then concluded, again without inquiry, that the danger is too great that this jury has been tainted by the actions of Juror No. 6. ¶16 The prosecutor did not argue, let alone demonstrate, that other alternatives to a mistrial were not feasible and that manifest necessity required a mistrial. 11 When defense counsel objected to the mistrial and offered the alternative of a curative instruction, the judge did not seriously explore this option or give weight to counsel s opinion that the error could be cured; rather, she conclusorily opined that a curative instruction would not address the issue [of prejudice]. Nor did the court discuss with counsel any other possible options short of the drastic remedy of a mistrial. did not appear interests, to give particularly fair the Further, the judge consideration importance to to the countervailing defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate. ¶17 Jorn, 400 U.S. at 486. The record shows the trial judge prematurely formed an opinion that the jury was tainted and that the only remedy was a mistrial. facts, She reached this conclusion without investigating the seriously considering any alternatives, taking into account Defendant s interest in proceeding with this trial, and carefully weighing circumstances, establishing the all State manifest relevant did not necessity, factors. Under meet its heavy and the trial s these burden of court s declaration of a mistrial was an abuse of discretion. ¶18 The cases distinguishable. cited by the State are inapposite or Relying on State v. Miller, 178 Ariz. 555, 558, 875 P.2d 788, 791 (1994), which held that juror misconduct 12 warrants a mistrial if there is a showing of actual prejudice or if prejudice may be fairly presumed from the facts, the State claims that prejudice may be presumed under these facts. But Miller misconduct involved and the the discovery defendant, not after the evidentiary hearing and a new trial. 790. trial State, of moved juror for an Id. at 557, 875 P.2d at Moreover, the Arizona Supreme Court concluded that the trial court had erred in denying the defendant s request for an evidentiary hearing to determine actually tainted the verdict. 89. P.2d if juror misconduct had Id. at 559-60, 875 P.2d at 788- See also State v. Reynolds, 11 Ariz. App. 532, 534-35, 466 405, defendant s 407-08 (1970)(upholding objection based on grant juror of mistrial misconduct only over after conducting a hearing and interviewing every juror to determine whether the jurors were prejudiced). ¶19 Ariz. The State also relies on P.2d 1233, 1238 mistrial was 289, 294, 731 proposition that a experimentation. That case, experimentation; rather it properly admitted exhibit State Ferreira, 152 (App. 1986), for the appropriate because of jury involve jury however, involved under v. did the various not jury examining lighting a conditions while deliberating and we held that such examination did not constitute impermissible experimentation. 13 ¶20 Finally, prosecutor was we simply reject the acting State s consistent argument with his minister of justice when he requested a mistrial. that duty the as a This ignores the State s heavy burden to show manifest necessity to justify granting a mistrial over Defendant s objection. Even conceding the prosecutor s good intent, in these circumstances, he should have urged that the trial court first consider viable alternatives to a mistrial. CONCLUSION ¶21 State s The trial court abused its discretion in granting the motion for mistrial without alternatives to such mistrial. first considering viable Therefore, the Double Jeopardy Clause barred Defendant s second trial. Accordingly, we vacate Defendant s convictions and sentences and remand the matter to the trial court with instructions to dismiss the charges against Defendant with prejudice. /s/__________________________ SHELDON H. WEISBERG, Judge CONCURRING: _/s/________________________________ PHILIP HALL, Presiding Judge _/s/________________________________ PETER B. SWANN, Judge 14

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