Appeal from the Superior Court in Yavapai County. The Honorable Celé Hancock, Judge. No. CR 20061557. Memorandum Decision of the Court of Appeals, Division Two. No. 2 CA-CR 2015-0071-PR. Filed April 8, 2015.
Appeal from the Superior Court in Yavapai County, AFFIRMED. Memorandum Decision of the Court of Appeals, Division Two, AFFIRMED.
Wendy F. White (argued), White Law Offices, PLLC, Flagstaff, Attorney for Knute Eckhard Kolmann.
Sheila Sullivan Polk, Yavapai County Attorney, Steven A. Young (argued), Deputy County Attorney, Prescott, Attorneys for State of Arizona.
CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL, TIMMER, and BOLICK joined.
BALES, CHIEF JUSTICE
[¶1] We affirm the trial court's summary dismissal of claims for post-conviction relief asserting that defense counsel was ineffective and juror misconduct occurred when the judge, without objection, replaced a juror who said she could not judge anybody's guilt or innocence.
[¶2] A jury in 2010 found Knute Kolmann guilty on ten counts of sexual exploitation of a minor and one count of conspiracy to commit sexual exploitation of a minor. On the sixth day of trial, after the jury had deliberated for several hours, the jury foreperson sent the trial judge a note stating that juror L.M. wanted to discuss a personal matter. The judge, in the presence of counsel, called L.M. back into the courtroom and asked, " What is your concern?" L.M. replied, " did you say [earlier] there were some things we could not talk to you about?" After cautioning L.M. not to discuss " what is going on in the jury room or anything having to do with the deliberations," the judge asked if she had some other personal matter concerning the jury's reconvening the next week. L.M. responded that she did not feel qualified to be a juror, stating " I feel like I can't judge anybody" and that she " was wrong" in not saying so earlier.
[¶3] Counsel declined to question L.M. further. The judge asked L.M. if there was " anything more that [she] wanted to say on this issue" and if it was " just a matter of not feeling like [she] can make a judgment in this particular case." She reaffirmed that she could not make a judgment for personal reasons but said nothing else. Without objection by counsel, the judge excused L.M. from the jury and replaced her with an alternate juror.
[¶4] After excusing L.M., the judge instructed the remaining eleven jurors that when they were joined by the alternate juror, who had not " had the benefit of the discussions" that had occurred " already within the jury room," they " to some extent . . . are going to have to start over again and involve her in discussions with regard to any individual and all of the counts, generally." When the jury reconvened five days later with the alternate juror, it deliberated about seventy minutes and returned a verdict finding Kolmann guilty on all counts. The trial court imposed consecutive sentences of imprisonment totaling 155 years, and the court of appeals affirmed the convictions and sentences on appeal. State v. Kolmann,
No. 1 CA-CR 10-0378, at *1 ¶ 1 (Ariz. App. March 22, 2012) (mem. decision).
[¶5] In 2013, Kolmann filed a Rule 32 petition for post-conviction relief based on a 2013 affidavit by L.M., who stated she had asked to be dismissed in 2010 by telling the judge she " did not feel competent to be a juror or to judge anyone." Noting that this was true, L.M. added that she especially did not want to stay on the jury because she was the only one not convinced of Kolmann's guilt, did not want to cause a hung jury, and was overwhelmed by the grave task of determining someone's guilt. L.M. said that one reason she did not feel competent was that she did not " understand the law well enough" and another reason was that while she was not convinced the defendant was innocent, she also was not convinced he was ...