State v. Streyar , 119 Ariz. 607 ( 1978 )

OPINION

RICHMOND, Chief Judge.

After appellant was arrested in Acton, Mass., for a violation of Massachusetts firearms laws, he confessed to the commission of armed robberies in Tucson and was returned to Arizona for prosecution. The Pima County Grand Jury returned an indictment for four counts of armed robbery, one of which was dismissed with prejudice at trial prior to the commencement of testimony because of the state’s inability to proceed on that charge. Although the propriety of admitting the confessions in evidence is not disputed, their voluntariness was in issue and the jury was properly instructed in that regard. He was found guilty on two counts, not guilty of the other, and received two concurrent prison sentences of five to 12 years.¹

The jurors deliberated approximately one hour on the afternoon the case was submitted to them and then were sent home. They returned the following morning but had not rendered verdicts at 4 p. m. At that time, without the assistance of counsel or notice to appellant, the trial judge drafted and sent into the jury room the following note:

“MR. FOREMAN WOULD YOU PLEASE SEND ME A NOTE STATING THE NUMBER OF BALLOTS YOU HAVE TAKEN AND THE VOTE ON THE LAST ONE. DO NOT SAY WHETHER THE VOTE IS GUILTY OR NOT GUILTY.

“NUMBER OF BALLOTS_

“VOTE ON LAST BALLOT _

“/s/ W. E. DRUKE”

The note was returned with information reflecting that two ballots had been taken and the vote was 9 to 3. Ninety minutes later the jury returned its verdicts.

The propriety of a communication to the jury requesting a numerical division is a question of first impression in Arizona. We believe that such communication, in the absence of the defendant and without notice to him, should not be condoned.

Such an inquiry was held by the Supreme Court to be reversible error per se in Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926):

“We deem it essential to the fair and impartial conduct of the trial that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious, although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.”

47 S.Ct. at 135-136.

The federal rule has been adopted as one of constitutional proportion in New Mexico. See State v. Aragon, 89 N.M. 91, 547 P.2d 574, 580 (App.1976). Various other states, however, have not regarded the Brasfield rule as mandated by due process, and have refused to follow it in the absence of additional conduct or comments by the trial judge suggesting coercion. For a discussion of cases dealing with the question, see An-not., Inquiry as to Numerical Division of Jury, 77 ALR3d 769.

Potentially prejudicial communications between the trial judge and jury, other than in open court in the presence of the defendant and counsel, have mandated reversal in Arizona. See State v. Burnetts, 80 Ariz. 208, 295 P.2d 377 (1956); State v. Werring, 111 Ariz. 68, 523 P.2d 499 (1974); State v. Robin, 112 Ariz. 467, 543 P.2d 779 (1975); cf. State v. Davis, 117 Ariz. 5, 570 P.2d 776 (App.1977). The possibility of coercive effect in the query at issue brings it within that rule.

Because of a possible re-trial, an analysis of appellant’s other contentions is appropriate.

1. Circumstances justified appellant’s detention by the Acton police, which led to discovery of the bank bag and pistol admitted in evidence, and the trial court properly refused to suppress them. See State v. Rhodes, 19 Ariz.App. 505, 508 P.2d 764 (1973); State v. Ruiz, 19 Ariz.App. 84, 504 P.2d 1307 (1973). An officer on patrol at about 11 p. m. saw motor vehicle headlights at the rear of a parking lot near two banks that had been closed since noon. There were no open businesses in the immediate area. On investigating, he found a car with out-of-state license plates, with appellant lying in the back seat. Appellant produced registration papers in the name of Les Martin, but said he had no driver’s license because it had been stolen. While a check was being made on the vehicle’s registration, the officer continued to shine his flashlight around the car “because it seemed the vehicle was in the wrong place at that time of night.” He then saw a blue bank bag that appellant apparently was trying to conceal with his feet, opened the car door and observed what appeared to be a pistol protruding from the bag.

2. The trial court did not abuse its discretion in denying appellant’s motion to sever the various counts for trial. 17 A.R.S. Rules of Criminal Procedure, Rule 13.-3(a)(3); State v. Henderson, 116 Ariz. 310, 569 P.2d 252 (App.1977). In his statement to an Acton detective, appellant described a modus operandi common to each of the robberies. Further, the fact that appellant was acquitted on one count establishes that severance was unnecessary under Rule 13.-4(a).

3. The trial court did not err in determining that appellant’s spring-operated BB pistol was a gun for the purposes of A.R.S. § 13-643(B).² We decline to equate “gun” with “firearm” where the legislature has not done so. Moreover, as noted in State v. Alexander, 108 Ariz. 556, 567, 503 P.2d 777, 788 (1972), the statute in question “is written in the disjunctive: ‘ * * * gun or deadly weapon * * *.’ Although a gun can be a deadly weapon, the statute requires only a gun and there is no requirement that it be loaded.”

The judgments of guilt on counts one and four of the indictment are reversed and the sentences thereon vacated; the case is remanded for a new trial on those counts.

HATHAWAY, J., concurring.

1 . At the time of sentencing, appellant also pled guilty to a separate charge of armed robbery, waived time for sentencing, and received an additional concurrent prison term of five to 12 years, which is not challenged on this appeal.

2 . § 13-643(B) provides in part: “Robbery committed by a person armed with a gun or deadly weapon is punishable by imprisonment in the state prison . . .