Appeal from the Superior Court in Maricopa County No. CR 2014-000938-001 The Honorable Michael W. Kemp, Judge
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz, Linley Wilson Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix By Paul J. Prato Counsel for Appellant
Donald Wayne Dalton, Safford Appellant
Presiding Judge Patricia K. Norris delivered the opinion of the Court, in which Judge Patricia A. Orozco joined.
¶1 Donald Wayne Dalton appeals from his conviction and sentence for one count of burglary in the second degree, a class 3 felony. After searching the record on appeal and finding no arguable question of law that was not frivolous, Dalton's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), and asked this court to search the record for fundamental error. This court also granted counsel's motion to allow Dalton to file a supplemental brief in propria persona. After reviewing both briefs and the record, we determined the record failed to demonstrate whether the superior court had complied with its obligation under Arizona Rule of Criminal Procedure 18.5(h) to instruct the jury it needed to begin its deliberations anew when it replaced a deliberating juror with the alternate. Accordingly, we requested counsel for the parties to brief whether the court committed fundamental, prejudicial error by apparently failing to comply with Rule 18.5(h). Having reviewed that briefing and given the State's acknowledgment that the superior court did not instruct the jury to begin its deliberations anew when the alternate joined it, we agree with Dalton the court's non-compliance with Rule 18.5(h) constituted fundamental, prejudicial error. Accordingly, we vacate Dalton's conviction and sentence for burglary in the second degree and remand for a new trial.
FACTS AND PROCEDURAL BACKGROUND
¶2 On May 2, 2013, police responded to a 911 caller who reported a man was removing a swamp cooler from the roof of a vacant house. The caller told dispatch he saw the man who had been on the roof along with a second man, who turned out to be Dalton, walking away from the house and down the alley. Dalton and the man who had been on the roof, Brian Day, matched the descriptions given by the caller. An officer arrived at the scene and saw that the swamp cooler had been removed from the roof. The officer detained the two men and questioned them.
¶3 In the questioning recorded by the police at the scene, Dalton first denied being inside the house. After further questioning, however, he admitted he had been inside. He denied any wrongdoing and told the officer Day was acting "stupid, " and he was trying to "get Brian to leave the premises and [to] stop doing what he was doing because [he] didn't want to see him being an idiot and getting in trouble." Day did not tell the police Dalton was helping him with the swamp cooler.
¶4 On January 21, 2014, a grand jury indicted Dalton for burglary in the second degree and criminal damage. At trial, Dalton testified he had been "living homelessly, " and had occasionally slept in the house. He explained that on the day police arrested him, he had been inside the house sleeping when he heard a banging noise. He went outside through a back window and saw the swamp cooler hanging "over [his] head." He saw Day, who appeared "not very coherent, " mumbling and talking to himself. Dalton testified he tried to get Day to leave the house with him so Day would not hurt himself, and he had first lied to police about being in the house because he did not want to get "wrapped up with Brian Day's stupidity."
¶5 After final instructions and closing argument, the court designated the alternate juror by lot and advised the jury the alternate could be called back if "something happens overnight." The court then excused the alternate. The jurors retired to consider their verdicts at 2:15 p.m., and the court recessed. At 3:22 p.m., the court reconvened with counsel present telephonically and Dalton's presence waived to consider a question from the jury. The court provided a written response to the question and recessed again at 3:23 p.m. At 4:21 p.m., the court reconvened with counsel present telephonically, and it advised counsel the jury had decided to "quit for the day, " but that one of the jurors had informed the bailiff she could not return the next day. The court told counsel its solution was to "bring the alternate back and have them start over at 11:00 tomorrow." The court and counsel then agreed the court would telephone the alternate and inform her that she had to return the next day at 11:00 a.m. to begin deliberations with the other jurors.
¶6 At 11:00 a.m. the next day, the jury reconvened. Although the day before the court had told counsel it would have the jury "start over" when the alternate joined it, the record contains no indication-and the parties do not argue otherwise-that the court actually instructed the jury to "start over." Neither Dalton nor the State brought the court's failure to comply with Rule 18.5(h) to its attention. The jury returned to the courtroom to announce its verdict 43 minutes later, at 11:43 a.m. The trial transcript, however, reflects the jury actually deliberated less than 43 minutes as the court apologized for making the jury wait before it could return its verdicts. The jury found Dalton guilty of burglary in the second degree, but not guilty of criminal damage. The court polled the jury, and the individual members of the jury confirmed the verdicts.
I. Non-Compliance with Rule 18.5(h)
¶7 In his supplemental brief filed at our request, Dalton argues the court failed to comply with its obligation under Rule 18.5(h) and, therefore, committed fundamental, prejudicial error entitling him to a new trial. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-21, 115 P.3d 601, 607-08 (2005). We agree.
¶8 In State v. Guytan, 192 Ariz. 514, 968 P.2d 587 (App. 1998), this court explained the inherent problems when a new juror joins deliberations that have already begun:
Where an alternate juror is inserted into a deliberative process in which some jurors may have formed opinions regarding the defendant's guilt or innocence, there is a real danger that the new juror will not have a realistic opportunity to express his views and to persuade others. Moreover, the new juror will not have been part of the dynamics of the prior deliberations, including the interplay of influences among and between jurors, that advanced the other jurors along their paths to a decision. Nor will the new juror have had the benefit of the unavailable juror's views. Finally, a lone juror ...