State v. Mekeel

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ROXANNE MEKEEL, Appellant.

No. 1 CA-CR 23-0102
FILED 12-05-2024

Appeal from the Superior Court in Maricopa County
No. CR2021-140057-001
The Honorable Michael S. Mandell, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Law Office of Stephen M. Johnson, Phoenix
By Stephen M. Johnson
Counsel for Appellant
 STATE v. MEKEEL
Opinion of the Court

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jennifer B. Campbell joined.

B R O W N, Judge:

¶1 Defendant Roxanne Mekeel appeals her convictions for
aggravated assault, resisting arrest, and criminal trespass. The issue
presented is whether fundamental, prejudicial error occurred when the trial
court failed to take appropriate action after discovering that an unadmitted
exhibit was inadvertently provided to the jury. Although fundamental
error occurred, we affirm because Mekeel has not shown she was
prejudiced.

BACKGROUND

¶2 In October 2021, a City of Phoenix employee was approached
by patrons at a city park. They informed the employee that a woman was
causing a water fountain at the park to overflow. The employee
approached the woman, who was later identified as Mekeel, and asked her
to “please quit running the water.” He then asked what she was doing, to
which she replied she was “waiting for cigarettes to come out of the water
fountain.” After asking her to leave, which she refused, the employee called
the police.

¶3 About 30 minutes later, police officers G.A. and J.H. arrived
at the scene. Officer G.A. approached Mekeel, informed her she was
trespassing, and asked her to leave or she would be arrested. Mekeel
refused and started to walk away but as Officer G.A. approached her, she
turned around and raised a bag she was carrying as if she were going to hit
him. Officer G.A. was eventually able to force Mekeel to the ground where
she continued to resist and kicked Officer J.H. The officers managed to
place handcuffs on Mekeel and as they were rolling her onto her side she
reached into the back of her pants, grabbed her own feces, and smeared it
on Officer G.A.’s pants. The incident was captured on video by each of the
officers’ body cameras.

¶4 A grand jury later indicted Mekeel for resisting arrest, a class
six felony, criminal trespass in the third degree, a class three misdemeanor,

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Opinion of the Court

and two counts of aggravated assault, each a class five felony. After
competency evaluations and written reports were completed, the trial court
found that Mekeel “understands the proceedings[,] is able to assist with
[her] defense,” and is therefore “competent pursuant to A.R.S.
[§] 13-4510(B).”

¶5 At trial, the City employee and both officers testified, and the
jury watched two body camera recordings, which were admitted as
evidence. Mekeel testified briefly and admitted having two prior felony
convictions, but no evidence was presented about the details of those
crimes. She remembered being at the park for “maybe four days,” admitted
she refused the City employee’s request to leave, and briefly recounted
what she remembered about her interaction with the officers. The only
other exhibit admitted in evidence was a redacted booking photo of Mekeel.

¶6 Before the jury started its deliberations, a court clerk
inadvertently placed State’s Exhibit 1 (a 62-page binder which had not been
admitted in evidence) in the jury room along with the three admitted
exhibits. Exhibit 1 included police reports (with narratives from each
officer), an evidence item report, a release questionnaire, an unredacted
booking photo of Mekeel, a police department response to resistance report,
an Arizona Department of Corrections summary report with a photo of
Mekeel along with her fingerprint card, and the sentencing minute entries
of Mekeel’s two prior felony convictions (2014 theft and 2015 possession of
dangerous drugs). After the court learned about the error, the following
exchange occurred between the judge and the attorneys:

COURT: [W]e called you back because we had a little bit of a
situation arise, and I wanted to appraise you all of that. When
the jury went back to the jury room, our clerk accidentally
included Exhibit 1, which is the binder. It has the police
report, the – I believe the Form 4 and some other stuff as part
of that binder.

[A]nd so it went back to the jury room for about a half an
hour, maybe a little less in time. We – I did have [the
courtroom assistant] go back and ask the jurors whether or
not anyone had actually reviewed the exhibit. He stated one
of the jurors had reviewed the exhibit but kinda thumbed
through it and didn’t really spend any time on it. But I
wanted to bring it to your attention so that we could address
the issue if necessary.

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Opinion of the Court

[DEFENSE]: They are saying they didn’t read anything?

COURT: She said – according to what [the courtroom
assistant] had – what she said to [him] that he conveyed to me
was that she had reviewed – or basically thumbed through it,
as I understand it, but she said it wasn’t anything that she was
going to consider.

[STATE]: Do we know if anything was discussed with the
others? . . . I guess we can’t get into deliberations. I take the
jurors at their word. I provided Defense an identical copy of
the binder. I can’t think of anything in those reports that
would be prejudicial. I know it’s not evidence, but I don’t
think there is anything that would contaminate the case that
they weren’t supposed [to] hear.

I don’t think there’s any mention of prior convictions in there.
I think, if anything, it would just be more descriptive of the
initial conversation with the State’s first witness.

[DEFENSE]: My copy, I do have a prior conviction on Page
58.

[STATE]: That is true.

[DEFENSE]: The prior convictions are in the binder.

[STATE]: There’s more than the police report. It’s additional
discovery.

[DEFENSE]: I mean, did she discuss the binder with any of
the other jurors?

COURTROOM ASSISTANT: What she – what she relayed to
me was that she thumbed through the binder. She informed
the jurors of what was in the binder. She said that they all
thought it was past stuff and it didn’t pertain to what they
needed to discuss right now, then she sat the book down.

[STATE]: The State’s view, Judge, is there is an instruction –
because when the Defendant took the stand, Defense
withdrew the thing on the priors, and [the jurors] were given
an instruction that they are not to consider the priors for

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Opinion of the Court

anything other than her credibility. I think the only other
thing that would be in there is the booking photo.

And in the State’s view, the booking photo is not prejudicial
because they know that she was arrested, processed for
booking. The entire reason [the jurors] are here is to
determine whether or not the State proved she did anything
wrong.

[DEFENSE]: I mean, we do have two alternates. I don’t know
how long that would prolong things if we just removed her.

COURT: That is a possible solution. From my standpoint –
and if you made a motion for mistrial or something along
those lines, it doesn’t sound to me like in this case whatever
was in that binder is going to make a great bit of difference.
And so I mean, having everything on bodycam, being the
entirety of the case is really on video and [the jurors] were
able to see the entirety of the case on video to make a
determination with regarding the counts, I mean, certainly it
shouldn’t have happened. And, you know, on behalf of the
Court, you know, obviously we apologize for it happening.
But I don’t know that it would rise to the level of
contaminating the jury.

[STATE]: What I think we might do, Judge, is admit that
binder for appellate purposes in case they do return a guilty
verdict and it goes up on automatic appeal. That way, the
Court of Appeals can render whatever decision they deem
appropriate.

[DEFENSE]: I mean, that’s fine.

COURT: Okay. If – if that was a motion to remove this juror
and then pick an alternate – is that what –

[STATE]: I don’t know how much difference it would make if
they said they weren’t going to consider it because it was past
stuff. Removing just one doesn’t make a difference, but I
won’t oppose the motion. I just don’t know that it makes a
difference.

[DEFENSE]: Obviously, we can’t gauge what difference it
makes. We don’t know.

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Opinion of the Court

COURT: Right. I didn’t know if you were making a motion
or if you were not.

[DEFENSE]: Well, I mean, I don’t want to hold everybody up,
but I guess, you know, that’s fine. I’ll leave it to the discretion
of the Court.

COURT: Okay. From what – from the description that I had
heard, I don’t think that it rises to the level of needing to
replace the juror. But certainly from the standpoint for
appellate purposes if there is an appeal, then Exhibit 1 will be
admitted for appellate purposes.

¶7 Shortly thereafter the jury found Mekeel guilty of aggravated
assault of a police officer, resisting arrest, and criminal trespass, but not
guilty on the second count of aggravated assault of a police officer. The
superior court suspended the sentence and, instead, placed Mekeel on two
years of supervised probation, with 30 days of jail time. Mekeel timely
appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1),
13-4031, and -4033(A)(1).

DISCUSSION

¶8 Mekeel argues the superior court should have ordered a new
trial because “the jury received extrinsic evidence not properly admitted
during the trial.” She also argues the court erred in failing to take additional
corrective action as result of the error, such as questioning the jurors
individually about their exposure to the unadmitted exhibit and
conducting an evidentiary hearing.1 Although defense counsel offered
various options about how the error could be handled, he did not request
that the superior court take any specific action. Because Mekeel did not
object to how the court ultimately handled the matter, she has failed to
preserve these claims for appeal. That means we review her arguments for
fundamental error resulting in prejudice, the applicable standard Mekeel
acknowledges in her opening brief. See State v. Escalante, 245 Ariz. 135, 138,

1 Mekeel also points out her trial attorney’s failure to seek a mistrial
or ask that the jurors be further questioned. Claims based on deficient
performance of trial counsel, however, cannot be reviewed on direct appeal.
See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002) (explaining that “ineffective
assistance of counsel claims are to be brought in Rule 32 proceedings,” and
will not be addressed on direct appeal regardless of merit).

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Opinion of the Court

¶1 (2018) (“When a defendant fails to object to trial error, he forfeits
appellate relief absent a showing of fundamental error.”); accord Ariz. R.
Evid. 103(e).

A. Fundamental Error

¶9 To show fundamental error, Mekeel must establish (1) error
going to the foundation of her case, (2) error that deprived her of a right
essential to her defense, or (3) error of such magnitude that she could not
possibly have received a fair trial. Escalante, 245 Ariz. at 142, ¶ 21. If she
establishes fundamental error under the first or second prong, she must
then show resulting prejudice, a fact-intensive inquiry. Id. If the third
prong is established, “[s]he has shown both fundamental error and
prejudice, and a new trial must be granted.” Id. Mekeel “bears the burden
of persuasion at each step.” Id.

¶10 The jury should not have seen Exhibit 1, which had not been
admitted in evidence, and thus trial error occurred. See Ariz. R. Evid. 103(d)
(“[T]he court must conduct a jury trial so that inadmissible evidence is not
suggested to the jury by any means.”); State v. Turrentine, 122 Ariz. 39, 41
(App. 1979) (“The jury may consider only matter that has been received in
evidence . . . .”); see also Ariz. R. Crim. P. 22.2(a) (“Upon retiring for
deliberations, jurors must take into the jury room: (1) forms of verdict
approved by the court; (2) jurors’ copies of the court’s instructions; (3)
jurors’ notes; and (4) tangible evidence as the court directs.”).

¶11 This error was fundamental because it deprived Mekeel of a
right essential to her defense. 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.” State v. Miller, 178 Ariz. 555, 557 (1994) (internal quotation and
citations omitted) (emphasis added).

¶12 A juror “receiving evidence not admitted during the trial or
phase of trial” is grounds for a new trial. Ariz. R. Crim. P. 24.1(c)(3)(A).
And compounding the error in this case, the trial judge directed the
courtroom assistant to speak with jurors to inquire about who had reviewed
the binder, doing so outside the presence of the judge, and without giving
prior notice to the parties or their counsel. Cf. Ariz. R. Crim. P. 22.3(c)
(requiring notice to the parties “before testimony is repeated or before
giving additional instructions” to the jury). Simply stated, the jury should
not have been given Exhibit 1 and, when that error was discovered, it
should have been handled quite differently than what happened here.

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Opinion of the Court

¶13 For example, after the jury began its deliberations, all
communications between the trial judge and the jury should have been
made in writing, as stated in the jury instructions:

Should any of you or the jury as a whole have a question for
me during your deliberations or wish to communicate with
me on any other matter, please utilize the jury question form
that we will provide you. Your question or message must be
communicated to me in writing and must be signed by you or
the foreperson. I will consider your question or note and
consult with counsel before answering it in writing.

Because the communications between the courtroom assistant were verbal
only, and not recorded, the record lacks any meaningful details about how
Exhibit 1 was brought to the attention of the courtroom assistant or whether
any substantive discussion occurred at that time, given that everything was
off the record. The record before us is also unclear about the extent to which
the trial judge reviewed Exhibit 1, casting doubt on whether he understood
the seriousness of the error.

¶14 And as soon as the courtroom assistant alerted the trial judge
about Exhibit 1 being given to the jury in error, the trial judge should have
immediately notified the parties. Instead, the record before us shows that
the judge directed the courtroom assistant to ask the jurors about the extent
to which they had reviewed Exhibit 1. Thus, the parties were deprived of
the opportunity to learn of the problem and present their positions before
that investigation occurred. 2 See State v. Rich, 184 Ariz. 179, 181 (1995) (“[If]
a trial judge acts without notice, the litigants have no opportunity to object
or voice their concerns regarding the judge’s procedure until it is too late.
The damage is done.”) (quoting Perkins v. Komarnyckyj, 172 Ariz. 115, 118
(1992)). Generally, “reversible error occurs when a trial judge
communicates with jurors after they have retired to deliberate, unless

2 The discussion with counsel and the courtroom assistant occurred
without Mekeel being present or confirmation that she waived her right to
be present. See Ariz. R. Crim. P. 19.2 (stating that a defendant “has the right
to be present at every stage of the trial”). Defense counsel noted that
“[s]he’s outside, Judge, if you need her.” The judge replied that she
“doesn’t have to necessarily be in for this part” and then continued with the
discussion about Exhibit 1. Although Mekeel may have ultimately decided
not to attend, she had a right to be present and should have been given the
opportunity to exercise, or expressly waive, that right.

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Opinion of the Court

defendant and counsel have been notified and given an opportunity to be
present.” State v. Mata, 125 Ariz. 233, 240–41 (1980). And the same problem
exists if the judge directs court staff to communicate with jurors about
substantive matters relating to the case without notice to the parties. See id.
(concluding that court’s communication with a juror “through the bailiff”
was not “reversible” error).

¶15 As shown by the events that happened here, it is critical that
trial judges adhere to the principle that the parties be informed of any jury
issue brought to a judge’s attention before the judge (or court staff) engages
in any further communication with the jury about substantive matters
affecting the case. See, e.g., State v. Robin, 112 Ariz. 467, 467 (1975) (reversing
because the jury sent the judge factual questions about the case and the
judge answered from his notes “in the absence of the defendant and
counsel”); State v. Werring, 111 Ariz. 68, 69 (1974) (reversing because
although counsel were informed of a jury note, they were not allowed to
see the note or to make a record of the incident before the judge answered
the questions); State v. Burnetts, 80 Ariz. 208, 210 (1956) (reversing because
the judge responded to a jury question about the case without following
appropriate safeguards); State v. Corrales, 121 Ariz. 104, 105 (App. 1978)
(reversing because the jury’s note said they could not reach a decision and
the judge replied that they should continue their deliberations but made no
record of the exchange).

¶16 Accordingly, the better approach under these circumstances
would have been for the trial judge, upon learning of the error, to ensure
that Exhibit 1 was immediately removed from the deliberation room. The
judge then could provide the required notice to the parties and discuss,
with Mekeel and counsel present and on the record, the appropriate next
steps to take. Those next steps could involve a variety of inquiries,
including (1) questioning of the courtroom assistant under oath by the
judge and the parties; (2) determining whether any of the jurors reviewed
Exhibit 1 and, if they did, speaking with those juror(s) individually, with
Mekeel and counsel present and on the record; and (3) determining what
additional steps were warranted based on that information. Cf. State v.
Burns, 237 Ariz. 1, 26–27, ¶¶ 113–21 (2015) (recognizing that the trial court
investigated the matter and questioned the jurors after they received
extraneous information); State v. Aguilar, 224 Ariz. 299, 300, ¶ 3 (noting that
the trial court held evidentiary hearings during which the court and counsel
questioned each juror about their reliance on internet definitions); State v.
Meehan, 139 Ariz. 20, 22 (App. 1983) (explaining that after hearing testimony
from jurors about inadmissible evidence they received during

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Opinion of the Court

deliberations, the judge was in the best position to evaluate whether the
jury was improperly influenced).

¶17 Unfortunately, none of that happened and, instead, the
courtroom assistant questioned at least one of the jurors, off the record and
outside the presence of the court, Mekeel, and counsel. See Corrales, 121
Ariz. at 105 (“The danger that the judge may not remember the events
clearly, as demonstrated in the instant case, requires the making of a record
in the presence of all parties.”). The courtroom assistant informally
reporting back the result of those inquiries, not under oath, represented the
sole basis for the remaining exchange quoted above, which was also
fundamental error.

B. Prejudice

¶18 Because fundamental error occurred, we turn to prejudice,
which Mekeel must establish by “showing that without the error, a
reasonable jury could have plausibly and intelligently returned a different
verdict.” Escalante, 245 Ariz. at 144, ¶ 31. A reasonable jury is “composed
of persons of average intelligence and judgment” using “common sense in
considering the evidence presented in connection with the instructions
given by the court.” Id. (citation omitted). In applying the “could have”
standard, we must keep in mind that fundamental error is rare, is curable
only with a new trial, and thus the “’could have’ inquiry necessarily
excludes imaginative guesswork.” Id. In applying the standard, we
“examine the entire record, including the parties’ theories and arguments
as well as the trial evidence.” Id.

¶19 The jury’s review of physical evidence should have been
limited to the one-page redacted booking photo and the two CDs
containing the body camera recordings. Instead, the jury was given a 62-
page binder containing information that was not presented at trial,
including police reports, unredacted photos, inmate information, and
minute entries documenting her two prior convictions. While the substance
of the police reports was presented to the jury through testimony of the two
arresting officers and the body camera recordings, the reports contain
details that were not presented through trial testimony or the recordings.
And the only information that was properly conveyed to the jury during
the presentation of evidence was that Mekeel had two prior felony
convictions, but the last 10 pages of the binder included additional details
about those convictions.

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Opinion of the Court

¶20 Despite the gravity of the error, and given the limited inquiry
conducted by the court (which defense counsel did not oppose), the
information gleaned through the courtroom assistant revealed that one
juror “thumbed through the binder” and informed other jurors of what was
in it. The courtroom assistant then noted that all the jurors “thought it was
past stuff” that was not pertinent to what they needed to discuss. Thus,
because nothing in the record suggests that the jury relied on the contents
of Exhibit 1 in reaching its verdicts, she has not established prejudicial error.

¶21 Moreover, the evidence supporting the jury’s verdicts is
overwhelming. See Escalante, 245 Ariz. at 143, ¶ 26 (concluding that the
evidence was not overwhelming as part of fundamental error analysis);
State v. Trostle, 191 Ariz. 4, 16 (1997) (concluding that prosecutor’s improper
comment on defendant’s failure to testify did not contribute to the jury’s
verdict given the “overwhelming evidence of guilt and the context within
which it was made”); State v. Anderson, 110 Ariz. 238, 241 (1973) (applying
fundamental error review and affirming because the overwhelming
evidence of guilt did not require reversal, but cautioning that “fundamental
error is still error and is not turned into non-error by the overwhelming
evidence of guilt”). The entire encounter between the two officers and
Mekeel was recorded by two body cameras and shown to the jury. And
there was no evidence contradicting the City employee’s testimony that he
told Mekeel she needed to leave the park.

¶22 Finally, we are not persuaded by Mekeel’s reliance on Hall,
which recognized the principle that “[o]nce the defendant shows that the
jury has received and considered extrinsic evidence, prejudice must be
presumed.” 204 Ariz. at 447, ¶ 16. Hall did not involve fundamental error
review because defense counsel had preserved the extrinsic evidence issue
for review by moving for a mistrial and a new trial after it was discovered
that the bailiff told several jurors the defendant had tattoos on his wrists
that looked like bracelets. Id. at 446, ¶¶ 11–12. On appeal, given these
timely objections, our supreme court applied an abuse of discretion
standard. Id. at 446–47, ¶¶ 12, 16. Given that we are reviewing only for
fundamental, prejudicial error in this case, the analytical framework used
in Hall does not apply here.

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CONCLUSION

¶23 Based on our review of the entire record, Mekeel has not met
her burden of showing that, without the error of Exhibit 1 being given to
the jury, “a reasonable jury could have plausibly and intelligently returned
a different verdict.” Escalante, 245 Ariz. at 144, ¶ 31. Because Mekeel has
not shown that the impact of the exhibit on the jury’s deliberations was
prejudicial, her convictions and resulting probation grants are affirmed.

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

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