State v. Laguna

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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. REYNALDO MIGUEL LAGUNA, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 04-22-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0071 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-158672-002 DT The Honorable Joseph C. Welty, Judge AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Sarah E. Heckathorne, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Louise Stark, Deputy Public Defender Attorney for Appellant Phoenix J O H N S E N, Judge ¶1 Reynaldo Miguel Laguna appeals his conviction on one count of armed robbery. He argues the superior court committed fundamental error by delaying inquiry into a juror s response to post-verdict polling. For the following reasons, we affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 The superior court sentenced Laguna to 14 years in prison.1 to Laguna timely appealed. Article 6, Section 9, of We have jurisdiction pursuant the Arizona Constitution, and Arizona Revised Statutes sections 12-120.21(A)(1) (2003), 134031 (2010) and -4033 (2010). DISCUSSION ¶3 On the first informed the court that day it of was jury deliberations, unable to reach a the jury unanimous verdict and that there were strong convictions on both sides that individuals will not be able to change their votes. asked the court how it should proceed. It The parties agreed the court should read the jury the impasse instruction, and the court called the jury into open court and did so. The jury then retired and continued to deliberate until after 5:00 p.m. 1 It We view the facts in the light most favorable to sustaining the jury s verdict and resolve all reasonable inferences against Laguna. State v. Vandever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005). 2 met again three days later and, after further deliberation, rendered its guilty verdict. ¶4 When the jurors were polled concerning whether their guilty verdict was their true verdict, Juror Six replied, Um, yes. I guess. proceeded After directly aggravation to phase. completing instruct The the the polling, jury prosecutor the court concerning interrupted instructions and requested a sidebar conference. the these During the sidebar conference, Laguna s attorney stated, While we are up here, Juror Number 6, I believe in the back row she said, yes, I guess. I don t know how . . . . The court interjected that it had heard yes as the last word but that it also had noted hesitation. The prosecutor response as um, yes. stated that he had heard the The court then stated, The record will be what the record is, but the last thing she said is um, yes. All right? The court then resumed instructing the jury on the aggravation phase. ¶5 Once the jurors had retired to deliberate again, defense counsel asked the court to check the record with the court reporter to see if Juror Six had said, yes, I guess? After the court heard the actual answer, it apologized to defense counsel and acknowledged that it had not heard the I guess portion of the answer. While the court agreed that additional action was necessary, it was reluctant to interrupt 3 the jurors deliberations on the aggravating factors. It reasoned that because no new evidence had been presented to the jury as part of the aggravation phase, there was additional prejudice at this point [in] time. not any The court, therefore, suggested it poll the jurors anew concerning their guilty verdict before aggravating factors. they for the their decision on the Defense counsel stated, I agree, too. I m happy with that. asking rendered The court then proposed that, prior to verdict on aggravation, it would inform the jurors there was a concern amongst the parties as to the result of the poll on the initial verdict and the clerk would repoll on that the verdicts, issue. court If jurors would then the take affirmed the their results guilty of their deliberations on aggravation; if, instead, Juror Six expressed the same hesitation that apparently was registered in the record last time, the court would take up that issue again. ¶6 the Defense counsel informed the court he preferred that court question Juror Six separately and that he was concerned that the presence of the other jurors might exert undue influence. The court, however, was concerned about singling out Juror Six for questioning lest the court appear to be inquiring Defense into counsel the mind ultimately set did proposed course of action. 4 of not an individual object to the juror. court s ¶7 Accordingly, rendered its when aggravation the jury verdict, returned the court and before addressed it it as follows: Before I ask you whether you have reached a verdict with respect to the aggravation stage in this case, there has been some discussion with the Court amongst counsel with respect to the prior polling of the jury on the question of the substantive offense. In other words, your initial verdict in the matter. As a result of that discussion, I m going to ask the Clerk to poll the jury again. This question is with respect to your verdict, not the aggravation stage, but on your verdict as to guilt or innocence, or guilt or not guilt, on the question of your initial verdict. The clerk next asked each juror, Is this your true verdict? Each of the jurors, including Juror Six, replied Yes. ¶8 committed On appeal, fundamental right to a fair trial.2 Laguna error argues and that thereby the superior deprived him court of his Laguna concedes he did not object to the court s proposed handling of the situation, so we review only for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005); see also State v. Lopez, 217 Ariz. 433, 435, ¶ 4, 175 P.3d 682, 684 (App. 2008). 2 The state argues Laguna invited the asserted error. We do not accept the State s argument under the facts of this case. See State v. Lucero, 223 Ariz. 129, 138, ¶ 31, 220 P.3d 249, 258 (App. 2009) (when party merely acquiesced in the error proposed by another, the appropriate sanction should be to limit appellate review to fundamental error ). 5 ¶9 In order to prevail on appeal, Laguna must establish not only that fundamental error occurred, but also that the error caused him prejudice. 115 P.3d at 607. Henderson, 210 Ariz. at 567, ¶ 20, We conclude the superior court committed no error. ¶10 At trial, defense counsel suggested that the question Juror Six separately about her response. court But that course of action would have run the risk of singling her out as the source of some problem. The record shows the superior court was aware of our recent case law on the issue, see State v. Rodriguez-Rosario, 219 Ariz. 113, 193 P.3d 807 (App. 2008), and desired to refrain from doing anything that might inadvertently communicate inquiry. that the juror was the cause of any additional In Rodriguez-Rosario, we noted that focusing on an individual juror might give rise to a finding of coercion and therefore is pregnant with possibilities for error. 219 Ariz. at 116, ¶ 14, 193 P.3d at 810 (internal quotation and citations omitted). ¶11 In Rodriquez-Rosario relied heavily on the reasoning of our supreme court in State v. McCrimmon, 187 Ariz. 169, 927 P.2d 1298 (1996). That case established that the superior court has discretion to make discreet inquiries of the jury as a whole to decide whether the jury is deadlocked or whether further deliberations might be useful to avoid the appearance 6 of coercion. Id. at 174, 927 P.2d at 1303. what the court did in this case. That is precisely By simply informing the jury that a discussion with the Court amongst counsel prompted the re-polling, out, the thereby response or superior minimizing that of any court the properly avoided possibility other juror. It her influencing of singling her also avoided the pitfall of improperly creating a potentially coercive numerical division among the jurors based merely on Juror Six s ambiguous aside. Id. at 172, 927 P.2d at 1301. ¶12 Laguna nonetheless argues that, based on Juror Six s I guess, without more, the superior court should have found the verdict was not unanimous. Laguna argues declare a further. 193 P.3d mistrial). the court mistrial or was send Relying on Rodriguez-Rosario, obligated the either jurors back to to sua sponte deliberate See Rodriguez-Rosario, 219 Ariz. at 116-17, ¶¶ 14, 19, at 810-11 (court should have granted motion for He contends that forcing Juror Six to restate her vote in front of the other jurors with whom she had not really agreed effectively coerced her second guilty verdict. ¶13 Rosario.3 This case, however, is distinguishable from RodriguezWhen initially polled 3 in that case, the juror U.S. v McCoy, 429 F.2d 739 (D.C. Cir. 1970), and State v. Austin, 6 Wis. 205 (1858), on which Laguna relies, also are distinguishable. In McCoy, when initially polled, a juror replied Yes, with a question mark. 429 F.2d at 741. The 7 responded, No and that he just went along with the guilty verdict. Id. at 114, ¶ 3, 193 P.3d at 808. Here, Juror Six merely followed her initial yes reply with an ambivalent I guess, which is not a clear statement of disagreement with the verdict. ¶14 Id. at 115, ¶ 10, 193 P.3d at 809. Moreover, [w]hat conduct amounts to coercion particularly dependent upon the facts of each case. is State v. Fernandez, 216 Ariz. 545, 548, ¶ 8, 169 P.3d 641, 644 (App. 2007) (quoting State v. Roberts, 131 Ariz. 513, 515, 642 P.2d 858, 860 (1982)). Here the court re-polled all of the jurors without singling out any one of them or giving any indication of any division among them. The record indicates that neither the court nor the prosecutor initially heard the I guess portion of Juror Six s response. that other jurors heard There is no indication in the record it, let alone that the jurors court then instructed the juror to answer yes or no. Id. When the juror answered yes, the court accepted the verdict over defense counsel s objection without further inquiry. Id. The court of appeals reversed, holding the juror s response to the court s directive was insufficient to remove the uncertainty of her verdict. Id. at 742. Here, the superior court issued no directive but simply gave all of the jurors, including Juror Six, the opportunity to respond to the polling as they desired. In Austin, a juror stated that he subscribed the verdict, but upon further questioning responded that he had doubts about the defendant s guilt. 6 Wis. at 205. When the court told him he need not argue the question but simply answer yes or no, the juror replied [t]hen I will answer yes. Id. The court reprimanded the juror for answering argumentatively, and on repeat questioning, the juror finally answered, Yes. Id. Here, the superior court did not pressure Juror Six in any way. 8 interpreted it to suggest that Juror Six was not in agreement. Furthermore, Laguna does not hesitation during re-polling. argue Juror Six expressed any The record establishes that, upon re-polling, Juror Six unequivocally responded that the guilty verdict was her true verdict. ¶15 Given the particular circumstances of this case, the superior court committed no error by simply re-polling the entire jury to determine if their guilty verdict was indeed unanimous. The record contains no indication that Juror Six s verdict was the product of coercion that rendered the overall guilty verdict not unanimous. ¶16 For the foregoing reasons, we affirm Laguna s conviction and sentence. /s/__________________________ DIANE M. JOHNSEN, Judge CONCURRING: /s/________________________________ PATRICIA A. OROZCO, Presiding Judge /s/________________________________ JON W. THOMPSON, Judge 9

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