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State v. Green

Court of Appeals of Arizona, Second Division, Department A

September 30, 2013

THE STATE OF ARIZONA, Appellee,
v.
HERMAN GREEN SR., Appellant.

Not for Publication Rule 111, Rules of the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY Cause No. S1100CR201101869 Honorable Joseph R. Georgini, Judge

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Kathryn A. Damstra Tucson Attorneys for Appellee

Riggs Law PLC By Lyle D. Riggs Casa Grande Attorney for Appellant

MEMORANDUM DECISION

GARYE L. VÁSQUEZ, Presiding Judge

ΒΆ1 After a jury trial, Herman Green Sr. was convicted of forty-one felony offenses involving acts of sexual and physical abuse. The trial court sentenced him to consecutive prison terms, including six life sentences. On appeal, Green argues the court erred by denying his motion for a mistrial based on juror misconduct. He further contends the court erred by denying his request for a court-appointed mental health expert to assist him in preparing a defense of guilty except insane. For the reasons stated below, we affirm.

Factual Background and Procedural History

¶2 We view the facts and the inferences drawn from them in the light most favorable to sustaining the jury's verdicts. State v. Miles, 211 Ariz. 475, ¶ 2, 123 P.3d 669, 670 (App. 2005). In September 2010, then fourteen-year-old S.G. called 9-1-1 and reported that her father, Green, had been "having sex with [her] for over nine years" and "harm[ed her and her siblings] a lot." After an investigation, Green was charged by indictment with three counts of child molestation, fifteen counts of sexual conduct with a minor, two counts of aggravated assault, twenty-two counts of child abuse, three counts of sexual abuse, and one count of indecent exposure. Twenty-two of those counts related to S.G., and the remaining counts related to her three siblings.

¶3 At the state's request, the trial court dismissed the indecent exposure count, two counts of child abuse, and one count each of child molestation and sexual conduct. The jury found Green guilty of the remaining charges, and the court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Discussion Juror Misconduct

¶4 Green argues the trial court erred by denying his motion for a mistrial based on juror misconduct. We review a trial court's ruling on a motion for a mistrial based on juror misconduct for an abuse of discretion. State v. Payne, Ariz., ¶ 96, 306 P.3d 17, 38 (2013). A declaration of mistrial is "the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983).

¶5 While cross-examining S.G., Green suggested she had fabricated her story or otherwise had been "encourag[ed]" by the forensic interviewer and detective investigating the case. During redirect examination, the state played the first forty-five minutes of S.G.'s seventy-eight-minute video recording of the forensic interview to show that she was not "encouraged during the interview." The jury was given a transcript of the interview as a demonstrative aid while the recording played in court. The recording and transcript were not admitted into evidence.[1] However, the recording was mistakenly sent in with the jury during its deliberations along with the exhibits that had been admitted during the trial.

¶6 Upon learning the jurors had been provided a computer to play the recording, the trial court decided "it would be prudent . . . to individually voir dire the jurors to determine how much, if at all, of [the recording] they had an opportunity to watch." Both parties agreed with the court's decision. The jurors all stated that a portion of the recording had been played during their deliberations, but not all of them had watched or heard it. Most of the jurors stated they had played approximately ten minutes of the recording. One juror specifically noted that the last time stamp on the video was at nine minutes and twenty-nine seconds, although a few jurors estimated that it had played twenty minutes.

¶7 After all the jurors had been questioned, Green moved for a mistrial on the ground that "[t]he jury, during its deliberations, . . . had access to evidence not admitted in the court." The state responded that "[e]ach of the jurors said that they had seen less of the interview than was played in open court" and suggested that a limiting instruction would be sufficient to address the issue. The trial court denied Green's motion for a mistrial, explaining: "The court is very confident that based on the responses of the individual jurors that they did not see more than the [portion of the recording which] was played for their benefit [at trial]." The court then brought the jury back into the courtroom and explained that the recording was not admitted into evidence, ...


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