Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2013-000414-001 The Honorable Jeanne M. Garcia, Judge
Arizona Attorney General's Office, Phoenix By Craig W. Soland Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix By Mikel Steinfeld Counsel for Appellant
Presiding Judge Maurice Portley delivered the decision of the Court, in which Judge John C. Gemmill and Judge Michael J. Brown joined.
¶1 Defendant Sergio David Rivera was indicted, tried, convicted, and sentenced on three counts of sexual abuse of a minor, two counts of molestation of a child, five counts of sexual conduct with a minor, two counts of furnishing obscene or harmful items to minors, all involving his conduct with an 11-year-old daughter, V., between June 2009 and December 2010; and ten counts of sexual exploitation of a minor, for knowingly possessing child pornography in December 2010. He argues that the trial court erred by denying his motion for mistrial based on juror misconduct, by instructing the jury on reasonable doubt pursuant to State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995), and he was deprived of a fair trial because of prosecutorial misconduct. For the following reasons, we affirm.
A. Motion for Mistrial
¶2 During his second trial on the charges,  the trial court notified the parties that Juror 14 had informed the bailiff that "during the lunchtime, . . . [Juror] number 9 told [Juror] number 14 that number 9's wife knows about this case, about the content of it and she described it as a horrible case." According to Juror 14, other jurors were present at the time, but she did not know if anyone else heard the comment from Juror 9. The bailiff reported that Juror 14 "wasn't sure" if Juror 9's wife worked at the court, if her friends worked there, or precisely how Juror 9's wife knew about the case.
¶3 At the next recess, the court and the parties spoke with Juror 14 separately and out of the presence of the other jurors. Juror 14 explained that several jurors had gone to lunch together the previous day, and the following conversation occurred with Juror 9:
[Juror 9] made a comment directly to me to say that his wife knew everything about the trial. I was surprised and said really, did you tell her anything about the trial and he said, no, that his wife, either his wife works for the court system or her friends work with the court system. When he told her the trial name she knew everything about the trial and said oh, that's a bad trial. I didn't ask him if they had discussions about evidence or anything like that. I assumed that they were having discussions, but obviously knowing that she knew about the trial and the content of it that there's an opportunity there that they could be discussing it and he may not be impartial if there's discussion.
Juror 14 also advised the court that the conversation was just between her and Juror 9, even though Jurors 2, 8, 5, and 15 were also at the table. She noted that there were people sitting next to them who "could have overheard." Upon further questioning by the court, Juror 14 avowed that she felt she could still be fair and impartial.
¶4 The court then called in Juror 9 and asked if he had heard anyone talk about the case or if he had talked about it. Juror 9 replied, "nothing factual about the case . . . no, not case related." When the trial court specifically asked, "[s]o you have not heard anyone else talk about the case and you haven't talked about the case either, " Juror 9 replied, "No, nothing having to do with the case."
¶5 The court and the parties then spoke individually with the other jurors who had been at the table. Jurors 5, 8, and 15 each informed the court that she or he had not heard anyone talking about the case at lunch. All three professed their ability to remain fair and impartial jurors. Only Juror 2 responded that she had heard that "somebody's wife works in the courthouse" and that "they said she knows the details of the case because her friends work in the courthouse and she works in the courthouse." Juror 2 stated, "I was taken aback but nothing else." In response to additional questions, she identified Juror 9 as the person she heard make the remark during lunch the day before. She also stated that Juror 9 made no comment that indicated that his wife's knowledge influenced him in any way, did not "express" that he talked to his wife about the case, and did not say anything about his wife "sharing information" with him or he sharing information with her. She also stated that nobody asked him about his comments "because we didn't want to know" and [Juror 9] "didn't say anything else." Juror 2 avowed that what she heard had not affected her judgment "in any way."
¶6 The court then recalled Juror 9 and confronted him with the information that several jurors had heard him comment at lunch "about your wife knowing something about this case." Juror 9 replied, "[t]hat's true." When the court asked Juror 9 to tell the court what he had said, Juror 9 stated:
Sure. I said that we've talked about not talking about the case and I said it's difficult for me not to talk about it because my wife knows about this case but we can't talk about it. That was the comment I made.
When the trial court asked him to explain how he learned that his wife knew about the case, Juror 9 replied:
All her friends work down here at the courthouse. When I brought the letter home that has the name of the case on it she said I know that case[, ] but we haven't discussed it.
Juror 9 informed the court he did not know "what" his wife knew about the case "because we haven't talked about it." When asked by the court if the fact that his wife had information about the case was "impacting [his] ability to sit as a fair and impartial juror, " he responded, ...