State v. Beatte

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JAY DEE BEATTE, JR., Appellant.

No. 1 CA-CR 19-0503
FILED 10-8-2020

Appeal from the Superior Court in Mohave County
No. S8015CR201600440
The Honorable Billy K. Sipe, Jr., Judge Pro Tempore

VACATED AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Casey Ball
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
 STATE v. BEATTE
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Kent E. Cattani joined.

B A I L E Y, Judge:

¶1 Jay Dee Beatte, Jr., appeals his conviction and sentence for
molestation of a child, a Class 2 dangerous felony and dangerous crime
against children (“DCAC”). Under very unusual circumstances resulting
when a juror stated that he disagreed with his previously announced
verdict, the trial court erred in its follow-up discussion with the juror by
going beyond what was appropriate to determine if further deliberations
were warranted. Accordingly, we vacate Beatte’s conviction and resulting
sentence.

FACTS AND PROCEDURAL HISTORY

¶2 After a one-day trial, Beatte’s case was submitted to the jury
for deliberations. The jury deliberated for just under two hours before
informing the court it had reached a verdict. According to the verdict form,
the jury found Beatte guilty of one count of molestation of a child and
further found the offense was a DCAC. 1 The court polled the jury at
Beatte’s request.

¶3 Eleven of the twelve jurors affirmed that their true verdict
was guilty. However, when the court asked Juror 13, who was the
presiding juror, whether the verdict was his true verdict, Juror 13 said “no.”
The court then engaged Juror 13 while the parties and the rest of the jury
panel were present:

The court: It is not your true verdict?
The presiding juror: No.
The court: And can you explain that to me.
The presiding juror: I didn’t believe part of the
evidence.

1The jury was given two verdict forms, one for a not guilty verdict and the
other for guilty. The guilty verdict form asked the jury to determine
whether the DCAC allegation was “proven” or “not proven.”

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The court: Okay. Well, you signed the verdict
form “guilty,” and the defendant can be found
guilty only if the jury is unanimous. So you now
disagree with the verdict that’s been announced
here in court?
The presiding juror: Well, everybody else said
yes, and so that — that was — you asked for the
truth and I told you.
The court: I’m sorry?
The presiding juror: I said you asked us to be
truthful when — when we asked (sic), and I
said, “No.”
The court: All right. And — and you do have
to be truthful. And, again, if you disagree with
the verdict — you’ve already told me you
disagreed with the verdict. So you voted for the
guilty verdict. Was not your true vote? Your
true verdict, individually?
The presiding juror: Well, I — I — I agreed with
a lot of stuff, but there was something that I was
hung up on that I believe was — just wasn’t
right. It wasn’t — that’s the way I — that’s the
way I feel. That’s — I — I can live with my
decision.

¶4 The court explained to Juror 13 that the verdict in a criminal
trial must be unanimous. The court attempted to verify Juror 13’s true
verdict, stating “if you disagree with your original vote and you are
changing your vote, now is the time to tell me.” The court then advised the
panel that jurors should hold on to their honest convictions and their beliefs
as to what the evidence shows. After the court’s advisement, Juror 13
stated, “I’ll go with what I signed here.”

¶5 At this point, the court asked whether further deliberations
would assist the jury. As presiding juror, Juror 13 explained “[w]e would
come up with the same,” before the court interrupted, interjecting that “it
might be only [Juror 13] would need to answer this question.” The court
continued:

In other words, I’m getting the impression that
you don’t want to find the defendant guilty, you
have other concerns or other issues that perhaps
should have been addressed further by the jury

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Decision of the Court

collectively, and you — you think it will be
beneficial to go back and rediscuss (sic) these
issues — or perhaps even come back tomorrow
— you can certainly do so.

¶6 Juror 13 elaborated that he “agreed with the jurors” but was
struggling with the last line of the verdict form, which used the word
“proven.” The court confirmed Juror 13’s statement that he agreed with the
guilty verdict but didn’t agree it was a DCAC. The court continued to speak
with Juror 13 in the presence of the parties and the rest of the panel:

The court: Okay, so you agree with the guilty
verdict, but the concern you had is whether this
is a [DCAC]?
The presiding juror: Yes.
The court: And a [DCAC] has a very specific
definition, which is included in your
instructions. So do you think it would help if
you go back, collectively, as the jury as a whole,
and go back and rediscuss that issue and
perhaps reread the definition?

¶7 Juror 13 explained he agreed the DCAC definition applied,
but “by [his] own conviction, [he didn’t] believe it was.” Juror 13 agreed
the jury would still arrive at a guilty verdict. The court explained, “I’m
getting the impression you agree with the guilty verdict, but you perhaps
disagreed with whether it’s a [DCAC]. And, again, that has a very specific
definition that is in your instruction packet.” The court asked if additional
argument limited to only the DCAC finding would be helpful, to which
Juror 13 agreed it would. Neither attorney objected to presenting
additional argument.

¶8 After the supplemental arguments, the court instructed the
jury to return for deliberations, advising them to “re-deliberate this
particular issue.” He further advised the jury to hold to their strong
convictions, but “you do have to follow the law and the evidence in the
case.” The jury was excused for further deliberations at 5:52 p.m. The jury
deliberated for four minutes before returning to court to announce it
unanimously found the DCAC allegation proven. While the jury was
redeliberating, Beatte’s counsel raised whether a mistrial was appropriate
but did not formally move for one. The court declined to declare a mistrial
and accepted the verdict.

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Decision of the Court

¶9 Following trial and the aggravation hearing, Beatte filed a
motion for a new trial arguing the trial court had coerced the verdict. The
trial judge reassigned the motion for a new trial to another judge. After oral
argument, the court denied the motion for new trial.

¶10 The trial court sentenced Beatte to twenty-eight years in the
Department of Corrections, followed by four years of probation with 414
days of presentence incarceration credit. This court has jurisdiction over
Beatte’s timely appeal pursuant to Article 6, Section 9, of the Arizona
Constitution and Arizona Revised Statutes §§ 12-120.21(A)(1), 13-4031, and
-4033(A)(1).

DISCUSSION

¶11 On appeal, Beatte challenges his conviction by arguing the
court coerced the verdict and erred by denying his motion for a new trial.
We review the denial of a motion for new trial for abuse of discretion. State
v. Hoskins, 199 Ariz. 127, 142, ¶ 52 (2000). “[W]henever a judge improperly
influences or coerces a verdict, the defendant is denied ‘a right essential to
his case.’” State v. Lautzenheiser, 180 Ariz. 7, 10 (1994). At the outset, we
agree that “the use of the word ‘coercion’ in circumstances such as these is
both unfortunate and unnecessary, as nothing so strong need be shown to
justify relief.” Id. at 11.

¶12 Arizona Rule of Criminal Procedure (“Rule”) 23.3(a) provides
a clear process for the polling of juries:

After the jury returns a verdict and before the
court dismisses the jury, the court must poll the
jury at the request of any party or on the court’s
own initiative. If the jurors’ responses to the
poll do not support the verdict, the court may
direct them to deliberate further or the court
may dismiss the jury.

¶13 The court thus had two options after hearing Juror 13’s
negative response to the poll question: order further deliberations or
dismiss the jury. See State v. Rodriguez-Rosario, 219 Ariz. 113, 115, ¶ 8 (App.
2008) (discussing the court’s options when polling reveals a juror does not
agree with the verdict). In the absence of ambiguity in the polled juror’s
response, an inquiry into the juror’s unexpected polling answer is not
permitted. See State v. Hernandez, 147 Ariz. 312, 313 (App. 1985). Though
the court ultimately directed further deliberations, the intermediate

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colloquy between the court and Juror 13 gave rise to Beatte’s juror coercion
claim.

¶14 Jury coercion constitutes reversible error. State v. Cruz, 218
Ariz. 149, 167, ¶ 112 (2008). It “exists when the trial court’s actions or
remarks, viewed in the totality of the circumstances, displaced the
independent judgment of the jurors. . . . What conduct amounts to coercion
is particularly dependent upon the facts of each case.” Rodriguez-Rosario,
219 Ariz. at 115, ¶ 10 (omission in original) (quoting State v. Fernandez, 216
Ariz. 545, 548 (App. 2007)). When determining whether jury coercion
occurred, we look at the following factors: the circumstances surrounding
the deliberations, if and how the court learned of the numerical division of
the jury, whether any cautionary instructions were given, whether any
jurors were singled out, whether the jury agreed additional deliberations
would be useful, and the length of the secondary deliberations.
Lautzenheiser, 180 Ariz. at 9–11; State v. McCutcheon, 150 Ariz. 317, 319–21
(1986) (“McCutcheon I”). We address each factor in turn.

Circumstances of Deliberations

¶15 In some cases, the circumstances surrounding deliberations
should cause “a high degree of caution and suspicion.” Lautzenheiser, 180
Ariz. at 9. In Lautzenheiser, for example, the court concluded the
circumstances contributed to an atmosphere of coercion when the jury
began deliberations late in the day on New Year’s Eve in a criminal Driving
Under the Influence case. Id.

¶16 In this case, neither party on appeal suggests the backdrop
against which the verdict was reached was coercive, and we conclude this
factor does not weigh heavily in favor of finding jury coercion. Although
the case was submitted to the jury late in the afternoon, merely submitting
a case to the jury at that time does not amount to coercion. See State v. Sabala, 189 Ariz. 416, 420 (App. 1997) (concluding giving jury additional
instructions at the end of the afternoon did not suggest coercion).

Knowledge of Numerical Division

¶17 “Disclosing the numerical division will not always indicate a
coerced verdict.” State v. McCrimmon, 187 Ariz. 169, 172 (1996). However,
“the fact that the numerical division of the jury was revealed can be
important when considering the totality of the circumstances.” Id. In
Lautzenheiser, as in this case, the trial court inadvertently learned of the lone
dissenting juror while polling the jury after a verdict was returned. 180
Ariz. at 8–9.

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¶18 This factor weighs in favor of finding jury coercion. As in
Lautzenheizer, once the lone dissenter was identified, the potential harm
should have been immediately apparent. See id. at 10. “[F]rom a pragmatic
standpoint, when such a division is announced and eleven . . . pairs of eyes
turn to look at the single holdout, it is impossible to conclude that the juror
was not subjected to pressure after the jury had returned to the jury room.”
Id. (quoting State v. Roberts, 131 Ariz. 513, 517 (1982) (Feldman, J.,
dissenting)). Although the inherent pressure of being the lone dissenter
without more does not amount to coercion, in this case, the revelation
allowed the court to focus repeated questions on Juror 13 while the entire
panel was present. This affected the next factor: whether Juror 13 was
singled out.

Singling Out a Juror

¶19 Trial courts have been repeatedly cautioned against “any
contact between a judge and any member of a deliberating jury.”
McCrimmon, 187 Ariz. at 173; see, e.g., State v. Huerstel, 206 Ariz. 93, 101, ¶ 23
(2003); Rodriguez-Rosario, 219 Ariz. at 116, ¶ 14. Our supreme court has
found coercion where a juror was singled out only twice as part of the
polling process. See, e.g., Lautzenheiser, 180 Ariz. at 9–10; Huerstel, 206 Ariz.
at 101, ¶ 24.

¶20 This factor weighs in favor of finding coercion because the
court’s questioning exceeded what was necessary to determine if additional
deliberations were warranted. The court’s initial follow-up to Juror 13’s
revelation that the guilty verdict was not his true verdict was appropriate
and even benefitted Beatte in that the court did not accept the verdict after
Juror 13 commented that “I can live with my decision” and “I’ll go with
what I signed here.” However, once the court confirmed that Juror 13 did
not agree with the entirety of the verdict, it should have ceased questioning
Juror 13 and either directed the jury to deliberate further or dismissed the
jury. See Ariz. R. Crim. P. 22.4, 23.3; see also Rodriguez-Rosario, 219 Ariz. at
115, ¶ 9. The court’s failure to allow Juror 13’s “no” to stand arguably
suggested to both Juror 13 and the entire panel that Juror 13’s answer was
not acceptable. See McCutcheon I, 150 Ariz. at 320 (finding the judge’s
repeated questioning sent implicit message the jurors should change their
votes). “[W]hen a trial judge knows how many jurors stand on each side of
the ultimate issue and urges the jury to return a verdict, it ‘creates in the
jury the impression that the court, which has also heard the testimony in
the case, agrees with the majority of [the] jurors.’” Id. (quoting People v.
Carter, 68 Cal.2d 810, 814 (1968), abrogated on different grounds by People v.
Gainer, 19 Cal.2d 835 (1977)).

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Decision of the Court

¶21 The State argues that Juror 13’s status as presiding juror
requires us to give the trial court greater latitude regarding its questioning
of Juror 13. It asserts the court needed to ensure that Juror 13 understood
his role, the jury understood and followed the instructions, and the signed
verdict represented the jury’s true verdict. In support of its argument, the
State relies on Hernandez, 147 Ariz. 312 (App. 1985), and State v. Hansen, 237
Ariz. 61 (App. 2015). But although both cases recognize that “there is a duty
upon the court to ascertain that the verdict was reached unanimously,” they
both reaffirm that “if there is doubt, it is the court’s duty to return the jury
for further deliberations or dismiss the jury and declare a mistrial.”
Hernandez, 147 Ariz. at 313; see Hansen, 237 Ariz. at 66, ¶ 14. Both Hernandez
and Hansen therefore support Rule 23.3(a)’s requirement that “[i]f the
jurors’ responses to the poll do not support the verdict, the court may direct
them to deliberate further or . . . dismiss the jury.” See Ariz. R. Crim. P.
23.3(a). Considering this, this factor weighs in favor of finding coercion.

Ordering Further Deliberations

¶22 Remanding the jury for additional deliberations when the
jury denies that additional considerations would help can contribute to a
finding of coercion. See Lautzenheiser, 180 Ariz. at 10; McCutcheon I, 150
Ariz. at 319–20.

¶23 This factor weighs in favor of finding coercion. After the trial
court repeatedly asked Juror 13 if he agreed with the verdict, it asked if
more deliberations would be helpful. Juror 13 began to explain “we would
come up with the same,” before the court interrupted him. The court asked
Juror 13 a second time if additional deliberations would be useful, and the
response was similar—that the jury would still reach a guilty verdict.
Despite Juror 13’s statement that he did not think additional deliberations
would be helpful, the court still offered and ordered supplemental
argument (which Juror 13 agreed would be helpful) on the DCAC finding,
then remanded the jury for additional deliberations.

¶24 The court’s summary of Juror 13’s issue with the DCAC
portion of the verdict was one logical explanation of the juror’s changed
mind, but because the court’s questioning was so prolonged, it is unclear
from the record whether Juror 13 volunteered the DCAC explanation or
simply acquiesced to the court’s repeated questioning. Compounding the
issue is that the elements of the crime mirrored the elements of a DCAC.
When combined with Juror 13’s initial statements that he did not believe
some of the evidence, the court’s assumptions and narrowing of the issues
was even more problematic.

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¶25 Remanding the jurors for additional deliberations was akin to
the courts’ actions in Lautzenheiser and McCutcheon I. In both cases, the trial
court remanded the jury for additional deliberations, despite the jury’s
indication that additional deliberations would not be helpful. Lautzenheiser,
180 Ariz. at 10; McCutcheon I, 150 Ariz. at 319–20. In both cases, the Arizona
Supreme Court found these actions supported a finding that the verdict
was coerced. Lautzenheiser, 180 Ariz. at 11; McCutcheon I, 150 Ariz. at 320–
21. We conclude this factor supports a finding of coercion.

Instructing the Jury

¶26 When a trial court knows of the numerical division of the jury,
it must exercise caution when instructing the jury. Cruz, 218 Ariz. at 167,
¶ 114. After the court singled out Juror 13, it gave the cautionary instruction
that the jurors must hold onto their honest convictions. However, by the
time the court gave this instruction, it had already questioned Juror 13
multiple times about his disagreement with the verdict. The court’s
questions suggested to Juror 13 that the court did not agree with his true
verdict of not guilty. See McCrimmon, 187 Ariz. at 173 (finding the court’s
actions sent the lone dissenting juror a clear message that being undecided
was unacceptable).

¶27 We must evaluate whether any of the court’s actions or
remarks “displace[d] the independent judgment of the jurors.” Rodriguez-
Rosario, 219 Ariz. at 115, ¶ 10. When Juror 13 indicated he disagreed with
the DCAC finding, the court told Juror 13 that DCAC “has a very specific
definition, which is included in your instructions.” Juror 13 explained the
definition as read applied, but by his own conviction, he did not agree the
crime was a DCAC. Juries “have the power to ignore the law in their
verdicts.” State v. Paredes-Solano, 223 Ariz. 284, 293, ¶ 26 (App. 2009). The
record indicates Juror 13 did not want to apply the DCAC definition to this
crime. Although it was Juror 13’s prerogative to ignore the definition, the
court twice reminded Juror 13 a DCAC has a specific definition and asked
whether it would be helpful for the entire jury to go back and reread the
definition. By repeatedly reminding Juror 13 of a DCAC’s specific
definition and directing the jury to reread only that definition during their
second deliberations, the court displaced Juror 13’s independent judgment.
See Rodriguez-Rosario, 219 Ariz. at 115, ¶ 10. We conclude this factor also
weighs in favor of a finding of coercion.

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Length of Second Deliberations

¶28 The State argues the length of the second deliberations
supports a verdict based on overwhelming guilt. We disagree. The jury
deliberated for less than four minutes. The State cites two cases in support
of its argument, neither of which furthers the State’s position. In State v.
Dalton, after the alternate juror was substituted in, the jury deliberated for
forty-three minutes. 241 Ariz. 182, 184, ¶ 4 (2016), abrogated on other grounds
by State v. Escalante, 245 Ariz. 135 (2018). The Dalton court did not find any
evidence of jury coercion or acquiescence by the alternate juror to the
majority. Id. at 187–88, ¶¶ 21–23.

¶29 In Lautzenheiser, the jury deliberated for twenty to twenty-five
minutes before returning a guilty verdict. 180 Ariz. at 9. The appellate
court, in finding the deliberation period to be too short, stated, “[u]nder
these circumstances, and in the absence of any cautionary instructions, it is
hard not to imagine the discussion that ensued when the jury retired to
deliberate for the second time, nor is it surprising that a guilty verdict was
reached so quickly thereafter.” Id. at 10.

¶30 The State argues Beatte’s failure to object suggests a lack of
coercion or that a coercive environment was not immediately apparent.
Considering the circumstances, even if an objection had been made sooner,
we do not agree the situation would be so easily remedied. See id. at 11
(finding overwhelming evidence of coercion would not have been cured by
a timely objection).

¶31 Based on the factors above and the totality of the
circumstances, we conclude that the court’s discussion with Juror 13
constituted jury coercion. Although the circumstances of the deliberations
alone were not coercive, and the court gave a cautionary instruction, the
court’s knowledge of the numerical division, the singling out of Juror 13,
the order to continue deliberating when the jury did not agree it would be
helpful, and the length of the secondary deliberations all weigh in favor of
a finding of coercion. We again note that the term “coercion” is unfortunate
in this context. The superior court faced very unusual circumstances and
was clearly trying to craft a remedy without necessarily dictating how the
jurors should vote. Nevertheless, because the court’s discussion went
beyond what was appropriate to determine whether further deliberations
were warranted, we vacate Beatte’s conviction and sentence and remand
for a new trial.

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Decision of the Court

¶32 Finally, given our decision to remand, we address an
additional issue that may arise if this matter is re-tried. At oral argument,
both Beatte and the State agreed the jury was not required to find whether
the molestation conviction constituted a DCAC. Both parties
acknowledged that the jury necessarily made the DCAC finding when it
convicted Beatte of molestation. See A.R.S. § 13-1410 (“A person commits
molestation of a child by intentionally or knowingly engaging in . . . sexual
contact . . . with a child who is under fifteen years of age.”); A.R.S. § 13-
705(Q)(1)(d) (“[DCAC] means any of the following that is committed
against a minor who is under fifteen years of age: . . . molestation of a
child.”). Because the DCAC finding is inherent in the crime of molestation,
the jury was not required to make any additional DCAC findings. See State
v. Larin, 233 Ariz. 202, 212, ¶ 38 (App. 2013) (“[A] jury need not make a
finding of dangerousness where it is ‘inherent in the crime.’”) (quoting State
v. Gatliff, 209 Ariz. 362, 366, ¶ 18 (App. 2004)); see also State v. Fernandez, 216
Ariz. 545, 553, ¶ 27 (App. 2007) (concluding the DCAC finding was inherent
in guilty verdict of “intentional, premeditated, attempted murder of each
of the four victims under the age of fifteen years”). Consequently, on
remand, should the jury convict Beatte of molestation, it need not be
instructed to determine whether the conviction constitutes a DCAC.

CONCLUSION

¶33 We vacate Beatte’s conviction and sentence and remand for
proceedings consistent with this decision.

AMY M. WOOD • Clerk of the Court
FILED: AA

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