State v. Platero

STATE OF ARIZONA, Appellee, v. PAUL RANDOLPH PLATERO, JR., Appellant.

No. 1 CA-CR 19-0556

ARIZONA COURT OF APPEALS DIVISION ONE

December 3, 2020

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

No. CR2018-141031-001

The Honorable William R. Wingard, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Michael O'Toole

Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix

By Thomas K. Baird

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.

MORSE, Judge:

¶1 Paul Randolph Platero Jr. ("Platero") appeals his convictions and sentences for six counts of sexual conduct with a minor. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Dennis¹ and his siblings moved with their mother, Melanie, to Arizona in July 2017. Before moving into their own apartment, Dennis and his family stayed approximately four weeks in a Phoenix home with various men, including Platero.

¶3 In 2018, Platero was indicted on various charges, including six counts of sexual conduct with a minor under fifteen years of age ("counts one through six"). See A.R.S. § 13-1405. The offenses were charged as a "class 2 felony" and "dangerous crime against children." See A.R.S. §§ 13-1405(B), -705(Q)(1)(e).

¶4 Platero was tried in the summer of 2019. Dennis testified that Platero engaged him in a series of sexual encounters while staying in the same home in 2017. Dennis also testified at trial that he was eleven years old, was born in January 2008, and was nine when he and his family were staying in a home with Platero in the summer of 2017. Neither party contested Dennis's age.

¶5 A jury found Platero guilty of sexual conduct with Dennis, a minor, and further found that Dennis was under fifteen for counts one through six. The trial court's minute entry reflects that the jury rendered its verdicts at 3:15 p.m., which were then read aloud by a clerk. The trial judgethen polled the jury members. Upon conclusion of the poll, the trial judge discharged the jury, stating:

Folks, that concludes your service as jurors on this case, and I very much appreciate all the time and effort you put into this. It means a whole lot to our system of justice, and all of the parties appreciate it. You will be released from the admonition now. Feel free to talk about the case, not talk about the case, however you wish to handle it. But in any event, I truly do, on behalf of all the parties, wish to thank you for all of your time and effort that you've put into this.

¶6 The trial judge finished by noting that the jurors, if they so desired, were free to stick around to provide feedback to the attorneys. After the jury exited the courtroom, and the court began discussing sentencing dates, the prosecution indicated that the verdict forms for counts one through six should have included the option of finding that Dennis was under the age of twelve. The prosecution asked the court to recall the jury so it could make this further determination, and the court sent a clerk to gather the jurors back into the courtroom. Platero's defense did not object to the recall and consented to amend the verdict forms to allow the jury to find whether Dennis was under twelve years of age, "without going through the guilty/not guilty part again[.]" The jury returned and was present in the courtroom at 3:26 p.m. Addressing the jury, the trial judge explained:

Folks, after you left—and I apologize for bringing you back. But after you left, we realized I had an error on the jury form. The finding as to the age of the child is not [fifteen]. It should be [twelve]. Okay? So . . . I'm going to ask you to take forms [one] through [six] back and to talk amongst yoursel[ves], just like you did for deliberations, to determine whether or not you find the child was under the age of [twelve] at the time of the offenses. And if you could just write that on these forms, I'd very much appreciate it.

¶7 After deliberating, the jury further found that Dennis was under twelve for counts one through six.

¶8 Platero timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A).

DISCUSSION

¶9 Platero argues the trial court violated the Fifth Amendment of the United States Constitution and committed fundamental error when it recalled the jury to determine whether Dennis was under twelve for counts one through six. He also argues that the trial court violated Article 6, Section 27, of the Arizona Constitution by commenting on evidence when addressing the jury.

I. Recalling the Jury.

¶10 Platero argues the trial court erred in recalling the jury after it had been discharged. Because Platero consented to recalling the jury and amending the jury verdict forms, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). "[T]he first step in fundamental error review is determining whether trial error exists." State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). If we find error, we "must decide whether the error is fundamental." Id. An error is fundamental if "(1) the error went to the foundation of the case, (2) the error took from the defendant a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial." Id. A defendant who establishes fundamental error under the first or second prong "must make a separate showing of prejudice," while a defendant who establishes fundamental error under the third prong has ipso facto shown prejudice. Id. "The defendant bears the burden of persuasion at each step." Id.

¶11 Platero argues that recalling the jury to deliberate on Dennis's age was fundamental error. However, because it was undisputed that Dennis was only eleven years old when he testified at trial, it is beyond implausible that any jury could have failed to find that he was under twelve at the time of the alleged offenses. See Henderson, 210 Ariz. at 570, ¶ 33 (finding no reasonable jury could have failed to find the existence of a statutory aggravator where it was undisputed that victim's age was over sixty-five). Therefore, even assuming that recalling the jury constituted error, Platero is unable to make the necessary showing that that the error caused him prejudice. Id. at 569, ¶ 28 ("We review for fundamental error to determine whether a reasonable jury, applying the correct standard of proof, could have failed to find the existence of [the] aggravator."). Because Platero cannot show prejudice, recalling the jury was not so egregious an error "that [Platero] could not possibly have received a fair trial." Escalante, 245 Ariz. at 142, ¶ 21.¶12 Platero cites to State v. Crumley, in which a trial court recalled a discharged jury after realizing the issue of the defendant's prior convictions had been overlooked. 128 Ariz. 302 (1981). The trial court attempted to recall the jury but some of the jurors had already left the courthouse and returned home. Id. at 305. The entire jury did not reconvene until the following morning to consider the defendant's prior convictions. Id. The Arizona Supreme Court set aside the sentence on appeal, holding:

Once discharged, we think this jury could not be properly recalled to further decide an issue of this case. It is simply too dangerous a practice to discharge the individual jurors from the duties and obligations of their oath, send them back into the community without admonitions or instructions, and then recall those same jurors to make a fair and impartial determination of any remaining issue connected with the case.

Id. at 306; see also Dietz v. Bouldin, 136 S. Ct. 1885, 1894 (2016) (stating that federal district courts should "determine whether any juror has been directly tainted" when considering whether to recall a jury in a civil case).²

¶13 While the Court in Crumley expressed concern with recalling jurors who had been "sen[t] . . . back into the community without admonitions or instructions," it limited its decision to "an ad hoc determination based on the narrow factual situation of this case," and, thus, did not establish a rule barring courts from ever reconvening a discharged jury for further deliberation. Id. Precedent from other jurisdictions "falls within two camps on whether a jury may be recalled after discharge . . . ." Wagner v. Jones, 758 F.3d 1030, 1034-35 (8th Cir. 2014) (collecting cases), abrogated by Dietz, 136 S. Ct. at 1891. Some courts have declined to find that a jury can never be recalled in a criminal case. E.g., United States v. Figueroa, 683 F.3d 69, 73 (3rd Cir. 2012) (finding the jury's release does not preclude recall if the "jurors did not disperse and interact with any outside individuals, ideas, or coverage of the proceedings"); United States v. Rojas, 617 F.3d 669, 678 (2d Cir. 2010) ("It is significant that, although the jury had technically been declared discharged by the court, it had not dispersed. Thejurors were therefore not exposed to outside factors . . . ." (internal quotation marks omitted)); Summers v. United States, 11 F.2d 583, 586 (4th Cir. 1926) ("[T]he mere announcement of [the jury's] discharge does not, before they have dispersed and mingled with the bystanders, preclude recalling them.") (citation omitted); State v. Clements, 423 P.3d 253, 261-62, ¶¶ 40-46 (Wash. App. 2018) (affirming recall where verdicts had been read at 2:26 p.m. and jury reassembled in courtroom at 2:42 p.m.); People v. McNeeley, 575 N.E. 2d 926, 929 (Ill. App. 1991) (affirming recall where the judge "could have properly concluded that the [discharged] jurors were subjected to no improper outside influences"); Masters v. State, 344 So.2d 616, 620 (Fla. App. 1977) (...