# Opposition Brief — Nalbandian v. Superior Court of Arizona

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 997

## Text

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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CC —_—

— |

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

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itt.

a ates oa
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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

---

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