State v. Platero ( 2020 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    PAUL RANDOLPH PLATERO, JR.,
    Appellant.
    No. 1 CA-CR 19-0556
    FILED 12-3-2020
    Appeal from the Superior Court in Maricopa County
    No. CR2018-141031-001
    The Honorable William R. Wingard, Judge Pro Tempore
    AFFIRMED
    COUNSEL
    Arizona Attorney General's Office, Phoenix
    By Michael O'Toole
    Counsel for Appellee
    Maricopa County Public Defender's Office, Phoenix
    By Thomas K. Baird
    Counsel for Appellant
    STATE v. PLATERO
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
    which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.
    M O R S E, Judge:
    ¶1           Paul Randolph Platero Jr. ("Platero") appeals his convictions
    and sentences for six counts of sexual conduct with a minor. For the
    following reasons, we affirm.
    FACTS AND PROCEDURAL BACKGROUND
    ¶2           Dennis1 and his siblings moved with their mother, Melanie,
    to Arizona in July 2017. Before moving into their own apartment, Dennis
    and his family stayed approximately four weeks in a Phoenix home with
    various men, including Platero.
    ¶3            In 2018, Platero was indicted on various charges, including six
    counts of sexual conduct with a minor under fifteen years of age ("counts
    one through six"). See A.R.S. § 13-1405. The offenses were charged as a
    "class 2 felony" and "dangerous crime against children." See A.R.S. §§ 13-
    1405(B), -705(Q)(1)(e).
    ¶4           Platero was tried in the summer of 2019. Dennis testified that
    Platero engaged him in a series of sexual encounters while staying in the
    same home in 2017. Dennis also testified at trial that he was eleven years
    old, was born in January 2008, and was nine when he and his family were
    staying in a home with Platero in the summer of 2017. Neither party
    contested Dennis's age.
    ¶5             A jury found Platero guilty of sexual conduct with Dennis, a
    minor, and further found that Dennis was under fifteen for counts one
    through six. The trial court's minute entry reflects that the jury rendered its
    verdicts at 3:15 p.m., which were then read aloud by a clerk. The trial judge
    1       We adopt the pseudonym provided in the State's answering brief to
    refer to the victim. See Ariz. R. Crim. P. 31.10(f).
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    STATE v. PLATERO
    Decision of the Court
    then polled the jury members. Upon conclusion of the poll, the trial judge
    discharged the jury, stating:
    Folks, that concludes your service as jurors on this case, and I
    very much appreciate all the time and effort you put into this.
    It means a whole lot to our system of justice, and all of the
    parties appreciate it. You will be released from the
    admonition now. Feel free to talk about the case, not talk
    about the case, however you wish to handle it. But in any
    event, I truly do, on behalf of all the parties, wish to thank you
    for all of your time and effort that you've put into this.
    ¶6             The trial judge finished by noting that the jurors, if they so
    desired, were free to stick around to provide feedback to the attorneys.
    After the jury exited the courtroom, and the court began discussing
    sentencing dates, the prosecution indicated that the verdict forms for counts
    one through six should have included the option of finding that Dennis was
    under the age of twelve. The prosecution asked the court to recall the jury
    so it could make this further determination, and the court sent a clerk to
    gather the jurors back into the courtroom. Platero's defense did not object
    to the recall and consented to amend the verdict forms to allow the jury to
    find whether Dennis was under twelve years of age, "without going
    through the guilty/not guilty part again[.]" The jury returned and was
    present in the courtroom at 3:26 p.m. Addressing the jury, the trial judge
    explained:
    Folks, after you left—and I apologize for bringing you back.
    But after you left, we realized I had an error on the jury form.
    The finding as to the age of the child is not [fifteen]. It should
    be [twelve]. Okay? So . . . I'm going to ask you to take forms
    [one] through [six] back and to talk amongst yoursel[ves], just
    like you did for deliberations, to determine whether or not
    you find the child was under the age of [twelve] at the time of
    the offenses. And if you could just write that on these forms,
    I'd very much appreciate it.
    ¶7          After deliberating, the jury further found that Dennis was
    under twelve for counts one through six.
    ¶8             Platero timely appealed. We have jurisdiction under Article
    6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-
    4031, and -4033(A).
    3
    STATE v. PLATERO
    Decision of the Court
    DISCUSSION
    ¶9             Platero argues the trial court violated the Fifth Amendment
    of the United States Constitution and committed fundamental error when
    it recalled the jury to determine whether Dennis was under twelve for
    counts one through six. He also argues that the trial court violated Article
    6, Section 27, of the Arizona Constitution by commenting on evidence when
    addressing the jury.
    I.     Recalling the Jury.
    ¶10            Platero argues the trial court erred in recalling the jury after it
    had been discharged. Because Platero consented to recalling the jury and
    amending the jury verdict forms, we review for fundamental error. State v.
    Henderson, 
    210 Ariz. 561
    , 567, ¶ 19 (2005). "[T]he first step in fundamental
    error review is determining whether trial error exists." State v. Escalante,
    
    245 Ariz. 135
    , 142, ¶ 21 (2018). If we find error, we "must decide whether
    the error is fundamental." 
    Id.
     An error is fundamental if "(1) the error went
    to the foundation of the case, (2) the error took from the defendant a right
    essential to his defense, or (3) the error was so egregious that he could not
    possibly have received a fair trial." 
    Id.
     A defendant who establishes
    fundamental error under the first or second prong "must make a separate
    showing of prejudice," while a defendant who establishes fundamental
    error under the third prong has ipso facto shown prejudice. 
    Id.
     "The
    defendant bears the burden of persuasion at each step." 
    Id.
    ¶11            Platero argues that recalling the jury to deliberate on Dennis's
    age was fundamental error. However, because it was undisputed that
    Dennis was only eleven years old when he testified at trial, it is beyond
    implausible that any jury could have failed to find that he was under twelve
    at the time of the alleged offenses. See Henderson, 210 Ariz. at 570, ¶ 33
    (finding no reasonable jury could have failed to find the existence of a
    statutory aggravator where it was undisputed that victim's age was over
    sixty-five). Therefore, even assuming that recalling the jury constituted
    error, Platero is unable to make the necessary showing that that the error
    caused him prejudice. Id. at 569, ¶ 28 ("We review for fundamental error to
    determine whether a reasonable jury, applying the correct standard of
    proof, could have failed to find the existence of [the] aggravator."). Because
    Platero cannot show prejudice, recalling the jury was not so egregious an
    error "that [Platero] could not possibly have received a fair trial." Escalante,
    245 Ariz. at 142, ¶ 21.
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    STATE v. PLATERO
    Decision of the Court
    ¶12           Platero cites to State v. Crumley, in which a trial court recalled
    a discharged jury after realizing the issue of the defendant's prior
    convictions had been overlooked. 
    128 Ariz. 302
     (1981). The trial court
    attempted to recall the jury but some of the jurors had already left the
    courthouse and returned home. 
    Id. at 305
    . The entire jury did not
    reconvene until the following morning to consider the defendant's prior
    convictions. 
    Id.
     The Arizona Supreme Court set aside the sentence on
    appeal, holding:
    Once discharged, we think this jury could not be properly
    recalled to further decide an issue of this case. It is simply too
    dangerous a practice to discharge the individual jurors from
    the duties and obligations of their oath, send them back into
    the community without admonitions or instructions, and then
    recall those same jurors to make a fair and impartial
    determination of any remaining issue connected with the
    case.
    
    Id. at 306
    ; see also Dietz v. Bouldin, 
    136 S. Ct. 1885
    , 1894 (2016) (stating that
    federal district courts should "determine whether any juror has been
    directly tainted" when considering whether to recall a jury in a civil case).2
    ¶13           While the Court in Crumley expressed concern with recalling
    jurors who had been "sen[t] . . . back into the community without
    admonitions or instructions," it limited its decision to "an ad hoc
    determination based on the narrow factual situation of this case," and, thus,
    did not establish a rule barring courts from ever reconvening a discharged
    jury for further deliberation. 
    Id.
     Precedent from other jurisdictions "falls
    within two camps on whether a jury may be recalled after discharge . . . ."
    Wagner v. Jones, 
    758 F.3d 1030
    , 1034-35 (8th Cir. 2014) (collecting cases),
    abrogated by Dietz, 136 S. Ct. at 1891. Some courts have declined to find that
    a jury can never be recalled in a criminal case. E.g., United States v. Figueroa,
    
    683 F.3d 69
    , 73 (3rd Cir. 2012) (finding the jury's release does not preclude
    recall if the "jurors did not disperse and interact with any outside
    individuals, ideas, or coverage of the proceedings"); United States v. Rojas,
    
    617 F.3d 669
    , 678 (2d Cir. 2010) ("It is significant that, although the jury had
    technically been declared discharged by the court, it had not dispersed. The
    2      The holding in Dietz is limited "to civil cases only." 136 S. Ct. at 1895.
    The Supreme Court noted the "additional concerns in criminal cases, such
    as attachment of the double jeopardy bar," and expressly declined to
    address "whether it would be appropriate to recall a jury after discharge in
    a criminal case." Id.
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    STATE v. PLATERO
    Decision of the Court
    jurors were therefore not exposed to outside factors . . . ." (internal quotation
    marks omitted)); Summers v. United States, 
    11 F.2d 583
    , 586 (4th Cir. 1926)
    ("[T]he mere announcement of [the jury's] discharge does not, before they
    have dispersed and mingled with the bystanders, preclude recalling them.")
    (citation omitted); State v. Clements, 
    423 P.3d 253
    , 261-62, ¶¶ 40-46 (Wash.
    App. 2018) (affirming recall where verdicts had been read at 2:26 p.m. and
    jury reassembled in courtroom at 2:42 p.m.); People v. McNeeley, 
    575 N.E. 2d 926
    , 929 (Ill. App. 1991) (affirming recall where the judge "could have
    properly concluded that the [discharged] jurors were subjected to no
    improper outside influences"); Masters v. State, 
    344 So.2d 616
    , 620 (Fla. App.
    1977) (placing the burden on the defendant to prove outside influence on a
    jury during the period of discharge). But other courts have applied a bright-
    line rule against jury recall following discharge. E.g., State v. Green, 
    995 S.W.2d 591
    , 614 (Tenn. Crim. App. 1998) ("[O]nce a jury in a felony case has
    been discharged and outside contacts may have occurred, the jury may not
    be reconvened for the purpose of taking further action involving the
    accused") (internal quotation marks omitted); Blevins v. State, 
    591 N.E.2d 562
    , 563 (Ind. App. 1992) ("Any action of the jury after its discharge is null
    and void."); People v. Rushin, 
    194 N.W.2d 718
    , 721-22 (Mich. App. 1971)
    (finding error where jury reconvened after leaving the courtroom, "be it for
    two minutes or two days"); Melton v. Commonwealth, 
    111 S.E. 291
    , 293 (Va.
    1922) ("When the court announces their discharge, and they leave the
    presence of the court, their functions as jurors have ended, and neither with
    nor with without the consent of the court can they amend or alter their
    verdict.").
    ¶14           This case does not present the "narrow factual situation" that
    was present in Crumley. 
    128 Ariz. at 306
    . There, when the court tried to
    recall the jury, two of the jurors had already returned home and at least
    some of the jurors did not return to the courtroom until the following
    morning. 
    Id. at 305
    . In contrast, each of the jurors in this case returned to
    the courtroom only minutes after discharge, and there is no indication that
    the jurors had left the courthouse. Indeed, the jury was present in the
    courtroom at 3:15 p.m. before returning their initial verdicts, which were
    then read aloud by the clerk. After discharge, the jurors were gathered back
    to the courtroom by 3:26 p.m. and had been gone for less than ten minutes
    before returning for further deliberation.
    ¶15          Platero points out that we have no record of the emotions to
    which the jurors may have been exposed, whether they had discussions
    with non-jurors, or what phone calls or text messages they may have made
    to family and friends during the brief period between their discharge and
    recall. See Dietz, 136 S. Ct. at 1894-95 (stating that federal district courts
    6
    STATE v. PLATERO
    Decision of the Court
    should consider "whether the jurors have spoken to anyone about the case
    after discharge[,]" "the reaction to the verdict[,]" and the "extent just-
    dismissed jurors accessed their smartphones or the internet"). Although the
    best practice would have been for the trial court to conduct an inquiry to
    "determine whether any juror ha[d] been directly tainted," id. at 1894,
    Platero consented to re-empaneling the jury and did not ask the court to
    make such an inquiry, see Dietz v. Bouldin, 
    794 F.3d 1093
    , 1099 n.6 (9th Cir.
    2015) (stating that an inquiry into whether jurors were exposed to
    compromising influences "may not be necessary where the parties have
    explicitly stipulated to the recall procedure"), aff'd, 
    136 S. Ct. 1885
     (2016); see
    also Clements, 423 P.3d at 262, ¶ 43 (noting that when the jury reconvened
    within sixteen minutes after verdict had been read that "[t]he time was so
    short that neither a cautious court nor counsel expressed a need to question
    the jurors about what they had been doing in those few minutes").
    ¶16           Because he did not object below, the burden is on Platero to
    establish that any fundamental error caused him prejudice, Escalante, 245
    Ariz. at 142, ¶ 21, and mere speculation about what the jurors may have
    been exposed to in the minutes between discharge and recall is insufficient
    to carry that burden, see State v. Riley, 
    248 Ariz. 154
    , 180, ¶ 88 (2020)
    (affirming convictions where defendant pointed to no evidence that he was
    prejudiced by an allegedly erroneous trial instruction and merely asked the
    court "to speculate that the jurors were misled or confused"); cf. also Dietz,
    136 S.Ct. at 1896 ("There is no benefit to imposing a rule that says that as
    soon as a jury is free to go a judge cannot rescind that order to correct an
    easily identified and fixable mistake, even as the jurors are still in the
    courtroom collecting their things.").
    ¶17           The lack of any potential prejudice and the immediate return
    of the jury only minutes after discharge persuade us that the trial court did
    not commit fundamental, prejudicial error. See Escalante, 245 Ariz. at 138,
    ¶ 1.
    II.    Double Jeopardy.
    ¶18            Platero also argues that the trial court placed him in double
    jeopardy and violated his due process rights when it recalled the jury to
    determine whether Dennis was under twelve for counts one through six.
    See U.S. Const. amend. V ("[N]or shall any person be subject for the same
    offense to be twice put in jeopardy of life or limb; . . . nor be deprived of life,
    liberty, or property, without due process of law . . . .").
    7
    STATE v. PLATERO
    Decision of the Court
    ¶19            We fail to find that the trial court ever subjected Platero to
    double jeopardy or deprived him of due process. The state indicted Platero
    on charges of committing sexual conduct with a minor under fifteen years
    of age, a "class 2 felony" and "dangerous crime against children," in
    violation of A.R.S. § 13-1405 and -705. When the jury returned its initial
    verdicts finding Platero guilty as charged, he became subject to an
    enhanced sentence under A.R.S. § 13-705. See A.R.S. § 13-1405(B) ("Sexual
    conduct with a minor who is under fifteen years of age is a class 2 felony
    and is punishable pursuant to § 13-705."). Section 13-705 imposes enhanced
    sentencing for persons convicted of sexual conduct with a minor under
    twelve years of age. See A.R.S. § 13-705(A) (providing that an adult
    convicted of a dangerous crime against children in the first degree
    involving sexual conduct with a minor who is twelve or younger shall be
    sentenced to life imprisonment); see also A.R.S. § 13–705(B) (providing that
    the same may be sentenced to life imprisonment, or alternatively, to a term
    between thirteen and twenty-seven years). Thus, when the jury was
    recalled, it determined whether Platero would be subject to an enhanced
    sentence, not whether Platero was guilty of any new offense. See Rev. Ariz.
    Jury Instr. ("RAJI") Statutory Crim. 7.05 (jury instructions) (5th ed. 2019)
    ("The sentence under A.R.S. § 13-705 differs depending on the age of the
    victim. Therefore, the jury will still have to find the age of the child as part
    of its aggravation verdict.").
    ¶20          Because the jury was recalled only to determine whether a
    sentence-enhancing aggravator existed—whether Dennis was under
    twelve at the time of the alleged offenses—the trial court did not subject
    Platero to double jeopardy. See State v. Anderson, 
    210 Ariz. 327
    , 348, ¶ 87
    (2005) (holding that "use of a second jury during the aggravation and
    penalty phases does not constitute double jeopardy"); State v. Ring, 
    204 Ariz. 534
    , 548, ¶ 27 (2003) (noting that, except for in capital sentencing
    proceedings, "[d]ouble jeopardy principles generally do not apply to
    sentencing proceedings") (citing United States v. DiFrancesco, 
    449 U.S. 117
    ,
    132 (1980)).
    III.   Commenting on Evidence.
    ¶21          Platero claims the trial court coerced a guilty verdict by
    commenting on evidence in violation of Article 6, Section 27, of the Arizona
    Constitution, which provides that "[j]udges shall not charge juries with
    respect to matters of fact, nor comment thereon, but shall declare the law."
    Because Platero did not object to the trial court's statements, we review for
    fundamental error. See Henderson, 
    210 Ariz. at 567, ¶ 19
    . "A judge violates
    Arizona's constitutional prohibition against commenting on evidence by
    8
    STATE v. PLATERO
    Decision of the Court
    expressing an opinion as to what the evidence proves, in a way that
    interferes with the jury's independent evaluation of that evidence." Riley,
    248 Ariz. at 179, ¶ 85 (internal quotation marks omitted). "An abstract
    instruction may amount to a comment on the evidence if the instruction
    indicates the trial judge's opinion regarding some evidence of the case." Id.
    We will not reverse for technical error in pleadings or proceedings "when
    upon the whole case it shall appear that substantial justice has been done."
    Ariz. Const. art. 6, § 27.
    ¶22            Platero argues that the trial judge's statement that "[t]he
    finding as to the age of the child is not [fifteen] . . . [i]t should be [twelve]"
    was a "comment" on evidence which the jury may have misunderstood as
    a directive to find that Dennis was under twelve. However, the court
    prefaced this statement by explaining that it had made an error on the jury
    verdict forms and followed it up by instructing the jury "to talk amongst
    yoursel[ves], just like you did for deliberations, to determine whether or
    not you find the child was under the age of [twelve] at the time of the
    offenses." Read together, we do not see these statements as indicating to
    the jury that the judge had formed an opinion about Dennis's age. Riley,
    248 Ariz. at 179, ¶ 85. Instead, it is apparent the trial judge was clarifying
    an earlier error with the verdict forms and explaining that the jury needed
    to determine, for themselves, whether Dennis was under twelve for charges
    one through six, rather than whether he was under fifteen.
    ¶23            Moreover, even were we to assume that the trial judge's
    statements were an impermissible "comment" on the evidence, Platero fails
    to show how the error caused him prejudice. See State v. Diaz, 
    110 Ariz. 32
    ,
    35 (1973) (noting that a judge's comment on evidence is error where
    prejudicial). Mere speculation about how a jury may have confused an
    instruction is insufficient to prove prejudice. See Riley, 248 Ariz. at 180, ¶
    88. Moreover, because it was undisputed that Dennis was eleven years old
    at the time of trial, no reasonable jury could have possibly failed to find that
    Dennis was under twelve for counts one through six. See Henderson, 
    210 Ariz. at 570, ¶ 33
    . Any theoretical error with the judge's instructions did
    not prejudice Platero. See Escalante, 245 Ariz. at 142, ¶ 21.
    9
    STATE v. PLATERO
    Decision of the Court
    CONCLUSION
    ¶24   We affirm Platero's convictions and sentences.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    10