Opposition Brief — Nalbandian v. Superior Court of Arizona

Supreme Court, U.S.

FILED

7 iOV g 1990

NO. 90-171 JOSEPH F. SPANIOL, JR.

CLERK

—————oo

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1990

: JAMES PETER NALBANDIAN,

Petitioner,

-YS-

STATE OF ARIZONA,

Respondent,

ON WRIT OF CERTIORARI TO THE

ARIZONA SUPREME COURT

RESPONSE TO PETITION FOR WRIT OF CERTIORARI

ROBERT K. CORBIN

Attorney General of

the State of Arizona

JESSICA GIFFORD FUNKHOUSER

Chief Counsel

Criminal Division

GEORGIA B. ELLEXSON*

Assistant Chief Counsel

DIANE M. RAMSEY

Assistant Attorney General

Department of Law

1275 W. Washington

Phoenix, Arizona 85007

Telephone: (602)542-4686

Attorneys for Respondent

*Counsel of Record

SES PS OPTRA RT My Cre

abies a

Question Presented

Does the unsolicited comment of one

juror constitute a verdict for the

purposes of double jeoardy analysis?

QUESTION PRESENTED

TABLE OF CASES AND AUTHORITIES

OPINION BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

ARGUMENT

THE RECORD SUPPORTS THE TRIAL

COURT'S DETERMINATION THAT THE

JURY WAS DEADLOCKED AND THERE

WAS NO DOUBLE JEOPARDY BAR TO

A RETRIAL OF PETITIONER.

CONCLUSION

a.

15

26

TABLE OF CASES AND AUTHORITIES

Case Page

Arizona v. Washington

434 U.S. 497

98 S. Ct. 824

54 L. Ed. 2d 717 (1978) AD, br oaesan

Burks v. United States

437 &.8. i

58 6. Ce. 2261

57 L. Ed. 2d 1 (1978) 24

Cobb v. State

246 Ga. 619

272 S.E. 2d 296 (1980) 2$

Fay v. McCotter

765 F.2d 475 (Sth Cir. 1985) 25

Illinois v. Gates

454 U.S. 1140

1a 6... Ge. S97

714L. Ed. 2d 291 (1983) 19

Menna v. New York

423 U.S. 61

96 S. Ct. 241

46 L. Ed. 2d 195 (1975) 16

Nalbandian v. Superior Court

163 Ariz. 126

786 P.2d 977 (Ct. App. 1989) L,at

Richardson v. United States

468 U.S. 317

104 S. Ct. 3081

82 L. Ed. 2d 242 (1982) 15,17,22,23,24

State v. Roberts

131 Ariz. 513

642 P.2d 858 (1982) 16

-iii-

State v. Sands

145 Ariz. 269

700 P.2d 1369 (Ct. App. 1985) 17

State v. Snowden

138 Ariz. 402

675 P.2d 289 (Ct. App. 1983) 17

United States v. Byrski

854 F.2d 955 (7th Cir. 1988) 23

United States v. Trotwell

896 F.2d 437 (10th Cir. 1990) 23

United States v. MacQueen

596 F.2d 76 (2d Cir. 1978) 25

United States v. Salvador

740 F.2d 752 (9th Cir. 1984) 23

United States v. Ustica

847 F.2d 42 (2d Cir. 1988) 24

Authorities

28 U.S.C.A.

§ 1257(a) 2

Arizona Rules of Criminal Procedure

Rule 23.1(a) 17

Rule 23.4 17

Rules of the United States Supreme Court

Rule 13.1 2

Rule 20.1

United States Constitution

Article III,§ 2; 2

Fifth Amendment 3

Fourteenth Amendment 3

-iv-

OPINION BELOW

On June 27, 1989, the Arizona Court of

Appeals affirmed the trial court's

granting of a new trial because the

jurors in the first trial had

deadlocked. Nalbandian v. Superior

Court, 163 Ariz. 126, 786 P.2d 977 (Ct.

App. 1989). The Arizona Supreme Court

denied review on February 26, 1990. Id.

STATEMENT OF JURISDICTION

The Arizona Supreme Court declined to

review petitioner's case on February 26,

1990. Petitioner filed his petition on

May 21, 1990, within the 90 days required

by Rule 13.1, Rules of the United States

Supreme Court. This Court has

jurisdiction pursuant to United States

Constitution, Article III, § 2;

28 U.S.C.A. § 1257(a); Rule 20.1, Rules

of the United States Supreme Court.

CONSTITUTIONAL PROVISIONS INVOLVED

Fifth Amendment to the United States

Constitution:

No person shall be held to

answer for a capital, or otherwise

infamous crime, unless on a

presentment or indictment of a

Grand Jury, except in cases

arising in the land or naval

forces, or in the Militia, when in

actual service in time of War or

public danger; nor shall any

person be subject for the same

offense to be twice put in

jeopardy of life or limb; nor

shall be compelled in any criminal

case to be a witness against

himself, nor be deprived of life,

liberty or property, without due

process of law; nor shall private

property be taken for public use,

without just compensation.

Fourteenth Amendment to the United

States Constitution:

§ 1. Citizenship rights not to

be abridged by states

Section 1. All persons born or

naturalized in the United States,

and subject to the jurisdiction

thereof, are citizens of the

United States and the State

——

wherein they reside. No State

shall make or enforce any law

which shall abridge the privileges

or immunities of citizens of the

United States; nor shall any State

deprive any person of life,

liberty, Or property, without due

process of law; nor deny to any

person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

Nalbandian was charged with aggravated

assault on a child under 15 years of

age. Trial began before a jury in this

matter on April 19, 1988. Following

trial, and during the jury deliberation

process, the trial court received

communications from members of the jury

indicating, inter alia, the following:

The jury requests a copy of the

transcript of the trial. Plus a

calendar from 1986. Signed,

T. Sandford 5/6/88, 9:20.

The trial court contacted the attorneys,

and after discussion, the trial court

returned the following response:

The entire trial was not

transc.ibed, only portions were.

Therefore, please rely on your

memories.

In addition, the trial court provided a

copy of a 1986 calendar for the jury.

-e next note received by the trial

court from the jury read:

The jury cannot make a decision

with the facts provided.

The trial court noted that this note came

after approximately 6 hours of

deliberation. The trial judge indicated

to trial counsel that he would follow

standard procedure by asking the jurors

if there was any reasonable probability

that they could reach a verdict within a

reasonable time, without asking that they

reveal how they were voting; he would

also ask if anyone believed additional

time would be helpful. If so, the trial

court would ask them to return to their

deliberations.

The state indicated that it would

prefer the jurors to continue

deliberating, but noted that, if they

were hopelessly deadlocked, the state

would rather retry the case. Defense

counsel, on the other hand, requested

that the trial court declare a mistrial

at that time. Defense counsel stated:

I think they have had adequate

time to deliberate and reach a

verdict and the Court should

declare a mistrial and I object to

the giving of the instruction from

the Bench book.

The trial court addressed Jury Foreman

Sandford, and asked him whether there was

a reasonable probability that the jury

could reach a verdict with additional

time. Jury Foreman Sandford replied that

additional time could assist them. Three

jurors raised their hands, indicating

that they disagreed with Mr. Sanford.

The trial court, after meeting with

counsel at sidebar, instructed the jurors

that they should continue deliberating

for another hour or so. The court stated:

I don‘t want you to feel pressured

to reach a verdict one way or the

other. If you can't reach a

verdict, so be it. We will give

it another hour and see where we

——EE

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are then. We will stand in recess

until about 4:40. Thank you.

Juror Margaret Kobert then addressed

the trial judge and asked him whether she

could ask a question without the presence

of the attorneys. The trial court

indicated that that was not the usual

procedure, and requested that she write

any questions down, so that the lawyers

and the trial court could formulate an

answer together. Prior to discussing

Mrs. Kobert's question, defense counsel

again requested that the trial court

grant a mistrial. Defense counsel made

the following argument:

MR. SCOTT: Yes, your Honor.

The Court querried [sic] the jury

foreman who indicated maybe some

additional time might be okay.

Then the court querried [sic]

further, and as I recall, there

were three people who raised their

hand, I can't remember their

names, one male and two females,

who said that additional time

would not be beneficial. We are

‘

talking about a five to three

Situation, your Honor. At the

Sidebar I ask the Court to declare

a mistrial. Number one, under the

facts of this case, the charges

are not that complicated.

Number two, we are dealing with

a mandatory sentencing situation

which the jury is not, obviously,

aware of.

Number three, I am afraid that

they feel pressured to make a

decision ultimately to the

Defendant's prejudice.

The fact the State doesn't want

to go to the expense, which is an

argument of the State, and put the

child through it again. There are

other remedies such as ‘dismissal.

So, it was for those reasons I

objected to the court sending the

jury back for additional

deliberation until 4:30.

The prosecutor argued that the trial

court's actions were appropriate, given

that five jurors indicated that, with

more time, they possibly could reach a

verdict. The trial court denied the

requested mistrial.

_

The trial judge then received two notes

in the following order:

All eight of us feel that the

state did not prove that Jim did

the abuse. But two people think

he probably did do it (a gut

feeling). They do not want him to

go free. /s/Mrs. Kobert.

If there is any additional

evidence, may we see it?

[unsigned]

Defense counsel then withdrew his motion

for a mistrial and an off-the-record

discussion ensued.

In response to Mrs. Kobert's note, the

trial court proposed the following

response:

There is no additional evidence

for you to see. Please continue

to deliberate until 4:30 p.m. or

until you reach a verdict. Please

keep in mind all of the previous

jury instructions.

At this point, defense counsel requested

the trial court to enter a verdict of not

guilty in response to the note signed by

Mrs. Kobert. The trial court indicated

tiie

that Mrs. Kobert's comment was not a

verdict, but defense counsel requested

that the trial court poll the jury to

determine whether, in fact, it was.

Defense counsel insisted that the trial

court read Mrs. Kobert's note to the

entire jury panel and ask them if they

all agreed with Mrs. Kobert that the

state failed to prove its case. If, in

fact, the other jurors agreed, defense

counsel requested that the trial court

direct them to return with a not guilty

verdict, signed in the appropriate

fashion.

The prosecutor noted that the jurors

should not be polled until a formal

verdict, signed by the foreman, was

received. Since no form of verdict had

been signed and received in court, the

prosecutor objected to the proposed

procedure by defense counsel. The

ntitin

prosecutor stated that such a poll would

put undue pressure on the jurors, and

suggested that they return to their

deliberations. The prosecutor noted

that, if the situation were reversed, the

trial court would be prevented from

making such an inquiry, since it would

amount to requesting a vote regarding the

deliberations.

The trial court indicated that it would

respond as follows:

There is no additional evidence

for you to see. Please continue

to deliberate until 4:30. Please

keep in mind all the previous

instructions. If you reach a

verdict before 4:30, let me know.

At 4:40 p.m., the trial court

reconvened the parties in open court.

The trial court inquired, through the

jury foreman, whether the jury had

reached a verdict. Jury Foreman Sandford

replied that they had not. The trial

~~

court inquired whether there was any

reasonable probability that the jury

would be able to reach a verdict, and

Mr. Sandford, the foreman, replied that

he did not believe that the jury would be

able to decide a verdict. Upon inquiry,

when none of the other jurors disagreed

with what Mr. Sandford said, the trial

court declared a mistrial because the

jury was deadlocked. The trial court

then set this matter for a retrial and

discharged the jurors.

When the parties reconvened in

chambers, defense counsel placed his

objection on the record to the trial

court discharging the jury, and insisted

that Mrs. Kobert's note constituted a

verdict of not guilty. Defense counsel

submitted that the trial court should

have inquired of the jury over the

state's objection, regarding the

="

consensus in Mrs. Kobert's opinion. The

trial court refused to change its

position.

Defense counsel then filed a motion for

entry of verdict of not guilty, which the

trial court denied on June 20, 1988. In

its minute entry, the trial court noted

that, after twice inquiring whether the

jurors had a verdict, and concluding that

they were hopelessly deadlocked, the

mistrial was the appropriate remedy. In

the words of Judge Silverman: “Calling

Mrs. Kobert'’s note a not guilty verdict

does not make it one.” The appellate

court agreed.

ARGUMENT

THE RECORD SUPPORTS THE TRIAL COURT'S

DETERMINATION THAT THE JURY WAS

DEADLOCKED AND THERE WAS NO DOUBLE

JEOPARDY BAR TO A RETRIAL OF PETITIONER.

Petitioner claims a double jeopardy

violation in the trial court's decision

to declare a mistrial due to a hung jury

and to set the matter for retrial.

Respondent believes that the trial

court's action was proper under this

Court's decisions in Richardson v. United

States, 468 U.S. 317, 104 S. Ct. 3081, 82

L. Ed. 2d 242 (1982), and Arizona v.

Washington, 434 U.S. 497, 98 S. Ct. 824,

54 L. Ed. 2d 717 (1978). The real

dispute in this case is the significance

of one juror’s unsolicited note giving

her opinion about the alleged opinions of

every other juror. Petitioner argued

below that the note was equivalent to an

acquittal. Respondent maintains that it

elfen

was one in a series of manifestations

that this was truly a deadlocked jury.?

The petition fails to mention some

pertinent Arizona procedural law. An

Arizona trial court is not permitted to

inquire into any numerical division

within a jury. State v. Roberts, 131

Ariz. 513, 642 P.2d 858 (1982). A trial

court is not permitted to consider any

inquiry into the subjective motives or

1. Before discussing the law

respondent wishes to point out that on

remand petitioner did not seek a stay but

entered a guilty plea to attempted

aggravated assault in this case. On

October 9, 1990, the trial court placed

him on 4-years probation with one year in

jail as stipulated in the plea

agreement. That case has not yet reached

the Arizona appellate court. Respondent

recognizes that a counseled plea of

guilty does not waive a claim of double

jeopardy. Menna v. New York, 423 U.S.

61, 96 S&S. Ct. 241, 46 L. Ed. 2d 195

(1975). However, the case presently

before this Court may be moot because

there is no relief this Court can grant

that would carry out the purpose of the

double jeopardy clause.

ateiin

mental processes of jurors. State v,

Sands, 145 Ariz. 269, 700 P.2d 1369 (Ct.

App. 1985); State v. Snowden, 138 Ariz.

402, 675 P.2d 289 (Ct. App. 1983). A

verdict must be in writing, signed by the

foreman and returned to the judge in open

court. Rule 23.1(a), Ariz. R. Crim. P.

Unless the trial court receives a signed

verdict it is under no obligation to poll

the jury. Rule 23.4, Ariz. R. Crim. P.

Before turning to the controlling

decisions in Richardson and Arizona v.,

Washington, respondent must disagree with

factual statements in the petition.

Petitioner has recast his argument

somewhat. In the Arizona courts he

argued only that the note from the single

juror was equivalent to a verdict.

Nalbandian, 163 Ariz. at 131, 786 P.2d at

982. He did not argue as he does to this

Court that the jurors were “going to

oiDen

acquit” or “about to acquit" and that the

trial court cut off deliberations quickly

and declared a mistrial without notice

and without attempting to instruct the

jury further to alleviate confusion.

Not only are these different arguments

than those raised in the state courts,

they have no support in the record in

this case. The indication was so strong

that this jury could not reach a verdict

before Mrs. Kobert volunteered her note,

that petitioner himself requested a

mistrial on the ground of deadlock. He

withdrew that request when the Kobert

note appeared, but the facts certainly

show that the trial court did not act

precipitiously and without notice to the

defense. In fact, the judge denied

petitioner's initial request and sent

them back to try again.

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Secondly, there was no request to

reinstruct the jury with respect to the

burden of proof. Nor was there any

indication they were confused about any

of the court's instructions. It is pure

fantasy to read into their requests for

more evidence any indication that they

were confused about the instructions.

And there was never a unanimous agreement

by the jurors on anything. Mrs. Kobert's

note is only an expression of her

personal opinion about what other jurors

were thinking. Petitioner did not allege

in the state courts that there was

judicial or prosecutorial impropriety in

rushing to a mistrial in order to avoid

an acquittal nor does the record suggest

anything of the sort. This Court does

not review federal claims that were not

raised in state court. [I]linois v.

att.

Gates, 454 U.S. 1140, 102 S. Ct. 997, 71

L. Ed. 2d 291 (1983).

Assuming that petitioner's claims were

raised in state court, they are

nonetheless without merit. This Court

discussed mistrial based upon a

deadlocked jury in Arizona v. Washington:

At the other extreme is the

mistrial premised upon the trial

judge's belief that the jury is

unable to reach a verdict, long

considered the classic basis for a

proper mistrial. The argument

that a jury's inability to agree

establishes reasonable doubt as to

the defendant's guilt, and

therefore requires acquittal, has

been uniformly rejected in this

country. Instead, without

exception, the courts have held

that the trial judge may discharge

a genuinely deadlocked jury and

require the defendant to submit to

a second trial. This rule accords

recognition to society's interest

in giving the prosecution one

complete opportunity to convict

those who have violated its laws.

Moreover, in this situation

there are especially compelling

reasons for allowing the trial

judge to exercise broad discretion

in deciding whether or not

athe

“manifest necessity” justifies a

discharge of the jury. On the one

hand, if he discharges the jury

when further deliberations may

produce a fair verdict, the

defendant is deprived of this

"valued right to have his trial

completed by a particular

tribunal.” But if he fails to

discharge a jury which is unable

to reach a verdict after

protracted and exhausting

deliberations, there exists a

significant risk that a verdict

may result from pressures

inherring in the situation rather

than the considered judgment of

all the jurors. If retrial of the

defendant were barred whenever an

appellate court views the

“necessity” for a mistrial

differently from the trial judge,

there would be a danger that the

latter, cognizant of the serious

societal consequences of an

erroneous ruling, would employ

coercive means to break the

apparent deadiock. Such a rule

would frustrate the public

; interest in just judgments. The

4 trial judge's decision to declare

a mistrial when he considers the

jury deadlocked is therefore

accorded great deference by the

reviewing court.

Arizona vy. Washington, 434 U.S. 509, 98

S. Ct. at 832, 54 L. Ed. 2d at 726

(footnotes omitted). This deference is

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based on such factors as the trial

judge's ability to observe the jurors and

what went on in the courtroom. 434 U.S.

at 510 n.28, 98 S. Ct. at 833 n.28, 54 L.

Ed. 2d at 727 n.28.

Petitioner claims at page 17 of the

petition that this Court's decision in

Richardson v. United States, 468 U.S.

317, 104 S. Ct. 3081, 82 L. Ed. 2d 242

(1982), casts doubt on the manifest

necessity requirement for declaration of

a mistrial in a hung jury case. The case

does no such thing. Richardson held that

the double jeopardy clause does not bar

retrial because of a hung jury regardless

of any claimed evidentiary insufficiency

at the first trial. The decision states

that it has been established since 1824

that a failure of the jury to agree on a

verdict was an instance of manifest

necessity which permitted a trial judge

o23=

to terminate the first trial and retry

the defendant. 468 U.S. at 324, 104 S.

Ct. at 3085, 82 L. Ed. 2d at 248. That

is how the circuit courts are

interpreting this decision. A mistrial

due to a hung jury is the paradigm

example of manifest necessity found on

the very highest end of the manifest

necessity continuum where the trial court

is afforded the most deference. See,

e.g,, United States v, Crotwell, 896 F.2d

437 (10th Cir. 1990); United States v.

Byrski, 854 F.2d 955 (7th Cir. 1988);

United States v. Salvador, 740 F.2d 752

(9th Cir. 1984), cert. denied, 469 U.S.

1196 (1985).

The dissent in Richardson did not

disagree on the basic precept that double

jeopardy did not preclude a retrial where

there was a jury deadlock. The dissent

was focusing on Richardson's claim that

y

itt.

a ates oa

eee dy me a

there had been insufficient evidence

presented in his multiple count case to

convict. That same claim, rejected by

the majority, is not even present in this

single-count case. With respect to the

Richardson's dissent's incongruity

referred to at page 17-18 of the

petition, one circuit court has stated

that there are no equities to be balanced

because the double jeopardy clause has

declared a constitutional policy based on

grounds which are not open to judicial

examination. United States v. Ustica,

847 F.2d 42, 50 (2d Cir. 1988), quoting

Burks v. United States, 437 U.S. 1, 98 S.

Ct. 2143, SS? & BG. 24 1 (1978).

Petitioner also claims that the trial

judge is required to consider other

alternatives before declaring a mistrial

due to the jurors’ inability to agree on

a verdict. A trial judge is not required

ats

to inquire behind an announced deadlock

on the assumption that jurors have

misunderstood the court's instructions.

United States v. MacQueen, 596 F.2d 76,

82 (2d Cir. 1978); see also Fay v.

McCotter, 765 F.2d 475 (5th Cir. 1985) (a

trial judge does not err for failing to

consider or adopt a specific alternative

for a mistrial). Furthermore, federal

law is consistent with Arizona law on the

probing of the jurors' mental processes.

It is not done to impeach a verdict or a

deadlock. MacQueen, 596 F.2d at 83.

Lastly, petitioner relies on a Georgia

state case called Cobb v. State, 246 Ga.

619, 272 S.E. 2d 296 (1980). Cobb was

not a jury deadlock case. Deliberations

were halted after only 13 minutes which

included the selection of the jury

foreman. Petitioner's jury deliberated 6

hours. They were sent back to try again.

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They came back again after another hour

and the foreman announced that a verdict

was impossible. When queried

collectively the other jurors did not

disagree with his assessment. The record

supports the Arizona trial court's

declaration of a hung jury and ordering

of a retrial.

CONCLUSION

The petitioner in this case

subsequently pled guilty while

Simultaneously seeking relief from this

Court on double jeopardy grounds. This

case involves a purely factual dispute

about the significance of an unsolicited

note from a single juror. The record

supports the Arizona trial court's

conclusion that the jury was deadlocked.

The law supports the trial court's

decision to set the matter for retrial.

«ite

‘

Respondent requests that this Court deny

the petition.

DATED this

Aw

day of November, 1990.

ROBERT K. CORBIN

Attorney General of

the State of Arizona

JESSICA GIFFORD FUNKHOUSER

pr Counsel

inal Ba

» ihe

peer aw Counsel

uane MNa wets

Assistant Attorney General

Department of Law

1275 W. Washington

Phoenix, Arizona 85007

Telephone: (602) 542-4686

Attorneys for Respondent

*Counsel of Record

~| =

THREE COPIES of this Brief were mailed

wd

this a” day of November, 1990, to:

THOMAS N. CROWE

MICHAEL B. SCOTT

1100 East Washington

Suite 200

Phoenix, Arizona 85034

Attorney for ia

. ELLEXSON

Chief Counsel

Counsel of Record

Department of Law

1275 W. Washington

Phoenix, Arizona 85007

Telephone: (602) 542-4686

Attorneys for Respondent