State v. Mekeel, No. 1 CA-CR 23-0102 (App. Div. I, December 5, 2024) (J. Brown) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2024/Mekeel%20-%201%20CA-CR%2023-0102%20-%20Opinion.pdf
PROVIDING JURY WITH EXHIBIT NOT ADMITTED INTO EVIDENCE CONSTITUTED FUNDAMENTAL ERROR BUT WHERE JURY GAVE LITTLE OR NO CONSIDERATION TO EXHIBIT THERE IS NO PREJUDICAL ERROR
Defendant was convicted of aggravated assault, resisting arrest and criminal trespass. She was found overflowing a water fountain at a park and was ordered to leave by police. She refused, resisted arrest and smeared feces on the arresting officer. The evidence admitted at trial consisted of footage from two police body cams the defendant's testimony where she admitted to two prior felony convictions and her redacted booking photo.
When the jury went to deliberate a court clerk inadvertently gave them exhibit 1 which was not in evidence. Exhibit 1 consisted of a 62-page binder which included the police report an unredacted booking photo, the sentencing minute entries on her prior felonies for possession of dangerous drugs and theft among other things. When the error was discovered, the judge had a courtroom assistant go back to the jury room and question the jurors. One juror told the assistant she had “thumbed through” the exhibit told the rest of the jurors what was in it but did not “consider it” telling other jurors it concerned stuff in the past. The jurors decided “it didn't pertain to what they needed to discuss” so they put it aside.
The judge called the lawyers in and told them what happened. Defense counsel was invited to move for a mistrial but did not and chose to let the court decide what to do. The trial court decided to do nothing. After the jury convicted the defendant, the defendant appealed the verdict, and the Arizona Court of Appeals affirmed.
The court of appeals found that the trial court had not handled this situation appropriately. Communications with jurors once they begin deliberation should be made in writing after the lawyers for each side are apprised, can make a record, and argue what to do next. Once the error was discovered, the trial court should have removed the exhibit from the jury room immediately, notified the parties, allowed questioning of the assistant under oath, determined if any jurors had looked at the exhibit and if so should have spoken to any jurors who had in the presence of the defendant and counsel on the record, and then determined what steps should be taken. Here there was fundamental error because a “jury's verdict ‘must be based upon the evidence developed at the trial,' a requirement that ‘goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury.'” This would be grounds for a new trial if the defendant had moved for one.
That said, because the evidence overwhelmingly supported the verdict and nothing actually in the record suggested the jury relied upon the content of Exhibit 1 defendant failed to establish “that, without the error of Exhibit 1 being given to the jury, ‘a reasonable jury could have plausibly and intelligently returned a different verdict'” the defendant failed to prove prejudicial error and the verdict stands.
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