FILED BY CLERK
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
MAR 30 2012
COURT OF APPEALS
DIVISION TWO
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
KAMONDAI RICHARD YOUNG,
Appellant.
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2 CA-CR 2011-0179
DEPARTMENT B
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY
Cause No. S0200CR20100586
Honorable James L. Conlogue, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz, and
Joseph L. Parkhurst
Zohlmann Law Offices
By Robert J. Zohlmann
Tucson
Attorneys for Appellee
Cortez, FL
Attorney for Appellant
K E L L Y, Judge.
¶1
Kamondai Young was convicted after a jury trial of theft of property valued
less than $1,000—specifically, a handgun and two boxes of ammunition—and was
sentenced to a presumptive, 1.75-year prison term.1
He argues on appeal that his
constitutional right to confront witnesses against him was violated when a deputy testified
concerning statements made to him by a non-testifying party. He also asserts the trial
court improperly coerced the jury to continue deliberations after the foreperson informed
the court the jury could not reach a verdict. We affirm.
¶2
On May 19, 2010, law enforcement officers executing a search warrant at a
residence found a revolver and two boxes of ammunition concealed in a furnace.
Elsewhere in the residence, they also found a box and a notebook, both bearing Young’s
name. Several days later, S. reported that his revolver was missing and that he had last
seen it in early May. After speaking with S., officers determined the revolver found at the
residence was his. Young’s DNA2 was found on the revolver’s grip.
During trial, a deputy testified that S. had told him that S.’s girlfriend’s
¶3
daughter, E., “had some information about [S.’s] weapon.” The deputy confirmed he had
spoken with E. and that, after doing so, he “conclude[d] that Kamondai Young was a
suspect in the theft of [S.]’s gun.” The trial court sustained Young’s objection on
relevance grounds but, following a bench conference, overruled Young’s hearsay
objection after the state argued the testimony was admissible to show its “effect on the
listener.” The deputy again confirmed that he had spoken with E. and added that “the
1
Young also was charged with misconduct involving weapons. That charge was
severed and Young was convicted after a separate jury trial and sentenced to a 4.5-year
prison term, to run concurrently to the prison term imposed for his theft conviction.
2
Deoxyribonucleic acid.
2
information” S. had given him that prompted him to do so “contain[ed a reference to]
Kamondai Young.”
¶4
Young asserts on appeal that, because the state, “introduce[d] [E.’s]
statements regarding her familiarity with Mr. Young,” he “had the right to confront and
cross-examine her” pursuant to the Sixth Amendment’s Confrontation Clause.
But
Young did not object on this basis below, either directly or implicitly, and therefore has
not preserved this claim for review. See State v. Alvarez, 213 Ariz. 467, ¶¶ 6-7, 143 P.3d
668, 670 (App. 2006) (objection to testimony solely on evidentiary ground of hearsay
insufficient to preserve confrontation argument); cf. State v. King, 212 Ariz. 372, ¶ 14,
132 P.3d 311, 314 (App. 2006) (though Confrontation Clause not mentioned,
confrontation argument preserved where counsel explicitly objected based on inability to
cross-examine absent witness). We therefore review only for fundamental, prejudicial
error. State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005).
¶5
First, we observe that Young does not discuss the trial court’s apparent
determination that the deputy’s circuitous reference to E.’s statement was not offered to
prove the truth of the matter asserted but instead to show its effect on the listener. The
Confrontation Clause “does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted.” Crawford v. Washington, 541 U.S. 36,
59 n.9 (2004). Thus, Young has not established his confrontation rights were even
implicated by the deputy’s testimony. In any event, because Young has failed to argue
that the alleged error here was fundamental, and because we find nothing that can be so
3
characterized, the argument is waived and we do not address it further. See State v.
Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (fundamental
error argument waived on appeal); State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641,
650 (App. 2007) (court will not ignore fundamental error if it finds it).
¶6
Young next asserts the trial court “committed reversible error by coercing
the jury back to deliberate the case after [it] was informed that the jury could not reach a
verdict.” After approximately one day of deliberations, the bailiff informed the court that
the jurors were “having trouble reaching a unanimous decision.” The court, in counsel’s
presence, discussed the matter with the jury foreperson. The court emphasized that it did
not wish to pressure the jury to reach a decision and asked the foreperson whether
“further deliberations would be fruitful,” stating it would “accept [her] opinion on that.”
The foreperson replied that she “d[id]n’t think so,” after which the court discussed the
matter with counsel. The court stated it could “ask if there is any additional information”
the jury required and “send them back in, and then they can send a note in to us or
something like that.” Young stated he “ha[d] no objection to asking generally if there
is . . . disagreement about what the facts are, or if they just feel that they need more
information.” The court then instructed the jury as follows:
Now, ladies and gentlemen, you will only—you will
have to make your decision based solely on the evidence that
was presented. There won’t be any additional evidence that
will be presented to you.
It might be helpful for you, if there are specific
questions that you might have, that I could attempt to answer,
4
or if we could even ask the attorneys to present argument on
specific points, if that would be helpful to you.
But I am going to suggest that we give you a short time
to reconvene, and then talk amongst yourselves on the issue of
whether or not there is something additional that could be
provided that might be helpful, knowing that there is not
going to be any additional evidence presented.
So, why don’t we give you a short time to do that, and
then I will allow you to decide, at that point, whether any
further deliberations would be at all fruitful. And if you find
that they would not, then that’s fine. You just need to let me
know.
So, go ahead and reconvene in the jury room, discuss
the point for just a few minutes, and then we’ll check back in
with you.
Approximately one hour later, the jury returned a guilty verdict and, during a jury poll,
each juror confirmed his or her verdict.
¶7
A trial court is permitted to assist a deadlocked jury, and we review the
court’s response to the jury for an abuse of discretion.3 See State v. Kuhs, 223 Ariz. 376,
¶¶ 41-42, 224 P.3d 192, 200 (2010). In examining whether the court abused its discretion
and consequently coerced the jury’s verdict, “we examine ‘the actions of the judge and
the comments made to the jury based on the totality of the circumstances and attempt[] to
determine if the independent judgment of the jury was displaced.’” Id. ¶ 42, quoting State
v. Huerstel, 206 Ariz. 93, ¶ 5, 75 P.3d 698, 702 (2003) (alteration in Kuhs).
3
Although Young did not object to the impasse instruction, we agree with the state
that juror coercion would constitute fundamental error had it occurred. See State v.
Lautzenheiser, 180 Ariz. 7, 10, 881 P.2d 339, 342 (1994).
5
¶8
As we understand his argument, Young asserts the trial court improperly
coerced the jury to reach a verdict because it did not advise the jury that its instruction
was not intended to force it to reach a verdict and because it did not “honor[]” the
foreperson’s opinion that further deliberations would not be helpful. Rule 22.4, Ariz. R.
Crim. P., provides that, “[i]f the jury advises the court that it has reached an impasse in its
deliberations, the court may, in the presence of counsel, inquire of the jurors to determine
whether and how court and counsel can assist them in their deliberative process.” And,
“[a]fter receiving the jurors’ response, if any, the judge may direct that further
proceedings occur as appropriate.”
Id.
The comment to Rule 22.4 contains a
recommended instruction that begins by stating: “This instruction is offered to help your
deliberations, not to force you to reach a verdict.” Although the court’s instruction here
did not contain that precise language, Young has cited no authority, and we find none,
suggesting that an instruction without such language necessarily is coercive. Instead,
courts have found a trial court’s impasse instruction to be improperly coercive only when
the court had been aware of a lopsided numerical split among the jurors, or when the jury
did not indicate it had reached an impasse. See Kuhs, 223 Ariz. 376, ¶ 43, 224 P.3d at
200-01. Nothing of that nature occurred here, and nothing in the court’s instruction was
inconsistent with the suggested instruction provided in the comment to Rule 22.4.
Instead, consistent with that recommended instruction, the court invited the jury to
identify remaining issues and advised the jury what information it might be given to assist
it in reaching a verdict. See Ariz. R. Crim. P. 22.4 cmt.
6
¶9
Indeed, the trial court had already expressly told the jury before giving the
instruction that it did not wish to pressure the jurors into reaching a verdict. Moreover,
the court did not, as Young suggests, require that the jury deliberate further—as we noted
above, it merely advised the jury what further information it could be given and instructed
it to consider whether such information would be helpful to its deliberations. Finally, a
trial court is not required to accept a jury’s claim that it is deadlocked. Kuhs, 223 Ariz.
376, ¶ 41, 224 P.3d at 200. We find no error.
¶10
Young’s conviction and sentence are affirmed.
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Philip
G. Espinosa
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