State v. Dalton

241 Ariz. 182

385 P.3d 412

754 Ariz. Adv. Rep. 4

STATE of Arizona, Appellee,

v.Donald Wayne DALTON, Appellant.

No. CR-16-0012-PR

Supreme Court of Arizona.

Filed December 22, 2016

Mark Brnovich, Attorney General, John R. Lopez IV, Solicitor General, Joseph T. Maziarz, Chief Counsel, Linley Wilson (argued), Assistant Attorney General, Criminal Appeal Section, Phoenix, Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender, Paul J. Prato (argued), Deputy Public Defender, Phoenix, Attorneys for Donald Wayne Dalton

VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES and JUSTICES BRUTINEL, TIMMER, and BOLICK joined.

VICE CHIEF JUSTICE PELANDER, opinion of the Court:

¶ 1 Under Arizona Rule of Criminal Procedure 18.5(h), when a trial court permits the mid-deliberation substitution of a juror, the court must instruct all jurors, including the alternate, "to begin deliberations anew." When, as here, a defendant does not object to a trial court's failure to give that instruction and is then convicted, the defendant must establish on appeal that the omission constituted fundamental error. Because defendant Donald Wayne Dalton has not shown prejudice from the trial court's failure to give the "deliberate-anew" instruction, we affirm his conviction and sentence.

I.

¶ 2 In May 2003, a 911 caller reported seeing a man, later identified as Brian Day, on a vacant home's roof attempting to remove a swamp cooler. The witness also reported seeing another man, who turned out to be Dalton, in an alley behind the home. The witness then informed the police that the two men were walking away from the home together. An officer arrived, stopped the pair, and, after questioning, arrested them. Dalton was charged with second degree burglary and criminal damage. The State alleged that he was an accomplice.

¶ 3 At the close of evidence after a two-day trial, the trial court's instructions to the jury included the following: 1) the verdict must be unanimous; 2) the jurors must discuss all of the evidence before taking a vote; and 3) they must carefully and impartially consider all evidence in the case. Just before deliberations, one juror was designated as an alternate in accordance with Rule 18.5(h). Before releasing the alternate juror, the court informed her that she was still bound by the admonitions the jury received two days earlier at the beginning of trial (including the admonition to form final opinions only after hearing the final instructions and discussing the case with the other jurors during deliberations). The jury then retired and deliberated for just over two hours before stopping for the day. Because one juror could not return the next day, the parties agreed to replace her with the alternate juror.

¶ 4 The jury reconvened the next morning with the alternate juror. The trial court did not instruct the jury to begin deliberations anew and neither party objected. After about forty-three minutes, the jury returned its verdict finding Dalton guilty of second degree burglary and not guilty of criminal damage. The trial court then polled the jurors individually and each confirmed that the verdict was his or her true verdict.

¶ 5 In a split decision, relying largely on State v. Guytan , 192 Ariz. 514, 968 P.2d 587 (App. 1998), the court of appeals vacated Dalton's conviction and sentence and remanded for a new trial. State v. Dalton , 239 Ariz. 74, 75–76 ¶ 1, 81 ¶ 27, 366 P.3d 133, 134–35, 140 (App. 2016). The majority concluded that the trial court's failure to instruct the jury to begin deliberations anew violated Dalton's right to a unanimous verdict under article 2, section 23 of the Arizona Constitution and thus was fundamental error. Id. at 77 ¶¶ 7–8, 366 P.3d at 136. The majority also found the error prejudicial because the court could not "say beyond a reasonable doubt that the jury would have reached the same result had the superior court properly instructed it to begin deliberations anew when the alternate joined it." Id. at 79 ¶ 14, 366 P.3d at 138.

¶ 6 The dissenting judge concluded that "the unobjected-to failure to instruct the jurors regarding deliberating anew did not rise to the level of fundamental, prejudicial error." Id. at 81 ¶ 28, 366 P.3d at 140. (Cattani, J., dissenting). Pointing to the simple facts underlying the case and the trial court's post-verdict polling of each juror, id. at 82 ¶ 33, 83 ¶¶ 36, 38, 366 P.3d at 141, 142, the dissent found "nothing in the record suggesting that issues were resolved prior to the dismissal of the excused juror, and the remaining jurors and the substitute juror were adequately instructed regarding their duty to reach a unanimous verdict." Id . at 83 ¶ 40, 366 P.3d at 142.

¶ 7 We granted review to clarify the standard for evaluating prejudice when a trial court, without objection, fails to give a "deliberate-anew" instruction under Rule 18.5(h). We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24.

II.

¶ 8 Preliminarily, we reject Dalton's belated argument, first made in his supplemental brief in this Court, that the trial court's failure to give a deliberate-anew instruction constitutes structural error that automatically requires reversal. See State v. Valverde , 220 Ariz. 582, 585 ¶ 10, 208 P.3d 233, 236 (2009) ("If an appellate court finds structural error, reversal is mandated regardless of whether an objection is made below or prejudice is found. If error is structural, prejudice is presumed."). As we recently stated, "the omission of [the deliberate-anew instruction] does not always require reversal of a conviction." State v. Kolmann , 239 Ariz. 157, 162 ¶ 19, 367 P.3d 61, 66 (2016).

¶ 9 Structural errors "deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence." State v. Ring (Ring III ), 204 Ariz. 534, 552 ¶ 45, 65 P.3d 915, 933 (2003) (internal quotation marks omitted) (quoting Neder v. United States , 527 U.S. 1, 8–9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) ). Such errors are very limited in nature and number inasmuch as they "affect the entire conduct of the trial from beginning to end, and thus taint the framework within which the trial proceeds." State v. Henderson , 210 Ariz. 561, 565 ¶ 12, 115 P.3d 601, 605 (2005) (internal quotation marks omitted) (quoting State v. Anderson , 197 Ariz. 314, 323 ¶ 22, 4 P.3d 369, 378 (2000) ).

¶ 10 We recognize that a trial court's failure to give a deliberate-anew instruction to a reconstituted jury, as Rule 18.5(h) requires, is different from evidentiary, trial, or other types of instructional error. And proving that noncompliance with Rule 18.5(h) prejudiced a defendant might be difficult given the confidentiality of jury deliberations and the constraints on probing the motives or mental processes of jurors. See Ariz. R. Crim. P. 24.1(d) ; see also Kolmann , 239 Ariz. at 161 ¶ 15, 367 P.3d at 65 (stating that courts generally prohibit inquiry into how a jury or individual juror deliberated or reached a decision). Despite the potential challenges in proving prejudice, a trial court's failure to give a deliberate-anew instruction does not fall within the very limited category of errors that are structural. See Ring III , 204 Ariz. at 552 ¶ 46, 65 P.3d at 933 ("The Supreme Court has defined relatively few instances in which we should regard error as structural.").

III.

¶ 11 Because Dalton did not object to the trial court's failure to instruct the reconstituted jury to begin deliberations anew, he must show fundamental error. Henderson , 210 Ariz. at 567 ¶ 19, 115 P.3d at 607. To establish fundamental error, Dalton of course must first show error. Id. at 568 ¶ 23, 115 P.3d at 608. He has done so here, as the State correctly concedes that the trial court erred in not giving the deliberate-anew instruction once the alternate joined the reconstituted jury. See Kolmann , 239 Ariz. at 162 ¶ 19, 367 P.3d at 66 ("After the alternate juror joined the deliberations, the trial court should have instructed the entire jury to begin deliberations anew" under Rule 18.5(h), despite neither side requesting that instruction.).

¶ 12 To carry his burden of showing fundamental error, Dalton must establish that the nature of the error 1) "goes to the foundation of [the] case," 2) "takes away a right that is essential to his defense," and 3) "is of such magnitude that he could not have received a fair trial." Henderson , 210 Ariz. at 568 ¶ 24, 115 P.3d at 608 ; see also Valverde , 220 Ariz. at 585 ¶ 12, 208 P.3d at 236. The burden of persuasion remains on the defendant in order "to discourage a defendant from tak[ing] his chances on a favorable verdict, reserving the hole card of a later appeal on [a] matter that was curable at trial, and then seek[ing] appellate reversal." Henderson , 210 Ariz. at 567 ¶ 19, 115 P.3d at 607 (internal quotation marks omitted).

¶ 13 Although the issue is debatable, we assume, without deciding, that the trial court fundamentally erred in failing to give the deliberate-anew instruction. See Valverde , 220 Ariz. at 586 ¶ 15, 208 P.3d at 237 (assuming without deciding that trial court's instructional omission was fundamental error but finding no prejudice). To prevail under fundamental-error review, however, "a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Henderson , 210 Ariz. at 567 ¶ 20, 115 P.3d at 607 ; see also Valverde , 220 Ariz. at 585 ¶ 12, 208 P.3d at 236. This is "a fact-intensive inquiry," and "[t]he showing a defendant must make varies, depending upon the type of error that occurred and the facts of a particular case." Henderson , 210 Ariz. at 568 ¶ 26, 115 P.3d at 608.

¶ 14 The error in Henderson "exist[ed] on two levels"—"[f]irst, the aggravating facts used to enhance Henderson's sentence were found by a judge instead of a jury,...