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State v. Dalton

Supreme Court of Arizona

December 22, 2016

State of Arizona, Appellee,
Donald Wayne Dalton, Appellant.

         Appeal from the Superior Court in Maricopa County The Honorable Michael W. Kemp, Judge No. CR2014-000938


         Opinion of the Court of Appeals, Division One 239 Ariz. 74, 366 P.3d 133 (App. 2016) VACATED

          Mark Brnovich, Attorney General, John R. Lopez IV, Solicitor General, Joseph T. Maziarz, Chief Counsel, Linley Wilson (argued), Assistant Attorney General, Criminal Appeal Section, Phoenix, Attorneys for State of Arizona

          James J. Haas, Maricopa County Public Defender, Paul J. Prato (argued), Deputy Public Defender, Phoenix, Attorneys for Donald Wayne Dalton

          VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES and JUSTICES BRUTINEL, TIMMER, and BOLICK joined.


         ¶1 Under Arizona Rule of Criminal Procedure 18.5(h), when a trial court permits the mid-deliberation substitution of a juror, the court must instruct all jurors, including the alternate, "to begin deliberations anew." When, as here, a defendant does not object to a trial court's failure to give that instruction and is then convicted, the defendant must establish on appeal that the omission constituted fundamental error. Because defendant Donald Wayne Dalton has not shown prejudice from the trial court's failure to give the "deliberate-anew" instruction, we affirm his conviction and sentence.


         ¶2 In May 2003, a 911 caller reported seeing a man, later identified as Brian Day, on a vacant home's roof attempting to remove a swamp cooler. The witness also reported seeing another man, who turned out to be Dalton, in an alley behind the home. The witness then informed the police that the two men were walking away from the home together. An officer arrived, stopped the pair, and, after questioning, arrested them. Dalton was charged with second degree burglary and criminal damage. The State alleged that he was an accomplice.

         ¶3 At the close of evidence after a two-day trial, the trial court's instructions to the jury included the following: 1) the verdict must be unanimous; 2) the jurors must discuss all of the evidence before taking a vote; and 3) they must carefully and impartially consider all evidence in the case. Just before deliberations, one juror was designated as an alternate in accordance with Rule 18.5(h). Before releasing the alternate juror, the court informed her that she was still bound by the admonitions the jury received two days earlier at the beginning of trial (including the admonition to form final opinions only after hearing the final instructions and discussing the case with the other jurors during deliberations). The jury then retired and deliberated for just over two hours before stopping for the day. Because one juror could not return the next day, the parties agreed to replace her with the alternate juror.

         ¶4 The jury reconvened the next morning with the alternate juror. The trial court did not instruct the jury to begin deliberations anew and neither party objected. After about forty-three minutes, the jury returned its verdict finding Dalton guilty of second degree burglary and not guilty of criminal damage. The trial court then polled the jurors individually and each confirmed that the verdict was his or her true verdict.

         ¶5 In a split decision, relying largely on State v. Guytan, 192 Ariz. 514, 968 P.2d 587 (App. 1998), the court of appeals vacated Dalton's conviction and sentence and remanded for a new trial. State v. Dalton, 239 Ariz. 74, 75-76 ¶ 1, 81 ¶ 27, 366 P.3d 133, 134-35, 140 (App. 2016). The majority concluded that the trial court's failure to instruct the jury to begin deliberations anew violated Dalton's right to a unanimous verdict under article 2, section 23 of the Arizona Constitution and thus was fundamental error. Id. at 77 ¶¶ 7-8, 366 P.3d at 136. The majority also found the error prejudicial because the court could not "say beyond a reasonable doubt that the jury would have reached the same result had the superior court properly instructed it to begin deliberations anew when the alternate joined it." Id. at 79 ¶ 14, 366 P.3d at 138.

         ¶6 The dissenting judge concluded that "the unobjected-to failure to instruct the jurors regarding deliberating anew did not rise to the level of fundamental, prejudicial error." Id. at 81 ¶ 28, 366 P.3d at 140. (Cattani, J., dissenting). Pointing to the simple facts underlying the case and the trial court's post-verdict polling of each juror, id. at 82 ¶ 33, 83 ¶ ¶ 36, 38, 366 P.3d at 141, 142, the dissent found "nothing in the record suggesting that issues were resolved prior to the dismissal of the excused juror, and the remaining jurors ...

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