State v. Robin

112 Ariz. 467 (1975) 543 P.2d 779

STATE of Arizona, Appellee,
v.
Robert Gonzales ROBIN, Appellant.

No. 3009.

Supreme Court of Arizona, En Banc.

December 17, 1975.

Bruce E. Babbitt, Atty. Gen., Moise Berger, Maricopa County Atty. by Joseph P. Shaw, and Lyle O. Reinsch, Deputy County Attys., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Anne Kappes, Deputy Public Defender, Phoenix, for appellant.

HAYS, Justice.

Robert Gonzales Robin was found guilty of first degree murder and was sentenced to life imprisonment. He now appeals and we have jurisdiction pursuant to Article 2, § 24 and Article 6, § 5 of the Arizona Constitution and A.R.S. § 12-120.21.

We need only discuss one issue presented on appeal: whether it was error for the trial judge to have communicated with the jury in the absence of the defendant and counsel. We find that it was.

The jury sent the judge questions which dealt with issues of fact and the judge answered from his notes and his recollection of the relevant testimony. It is improper for a trial judge in a criminal case to communicate with the jurors after they have retired to deliberate unless the defendant and counsel have been notified and given an opportunity to be present. State v. Werring, 111 Ariz. 68, 523 P.2d 499 (1974); State v. Burnetts, 80 Ariz. 208, 295 P.2d 377 (1956). Where the communication concerns the case and particularly issues of fact, the defendant is not required to show actual prejudice. State v. Burnetts, supra.

The judgment is reversed and the case remanded for a new trial.

CAMERON, C.J., STRUCKMEYER, V.C.J., and SANDRA D. O'CONNOR, Superior Court Judge, Maricopa County, and WILLIAM W. NABOURS, Superior Court Judge, Yuma County, concur.

Note: Justice LOCKWOOD, retired, and Justice HOLOHAN did not participate in the determination of this matter. SANDRA D. O'CONNOR, Judge of the Superior Court of Maricopa County, and WILLIAM W. NABOURS, Judge of the Superior Court of Yuma County, sat in their stead.