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State v. Prasertphong9/2/2003
instruction does not improperly shift the burden of proof, the trial court did not commit fundamental error when it gave the Portillo instruction.
IX.
Next, Prasertphong contends that it was fundamental error for the indictment and verdict forms to allege that Prasertphong robbed each victim "and/or Pizza Hut." Under A.R.S. section 13-1902, robbery must be a taking by force or threat of force against a person, not a business. Therefore, according to Prasertphong, the portion of the indictment alleging a taking by force against the Pizza Hut, and the verdict forms tracking that language, were erroneous. Because the verdict forms were not objected to at trial, we review only for fundamental error. State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991).
Citing State v. Van Vliet, 108 Ariz. 162, 163, 494 P.2d 34, 35 (1972), the State argues that the sufficiency of a robbery charge is unaffected by who is named as the victim when the defendant had notice of the basic facts of the crime alleged. However, in Van Vliet the indictment was amended before trial. Id. Nevertheless, so long as the defendant has notice of the essential facts of the crime alleged, any error in the indictment is harmless. Id.; see also State v. James, 305 So. 2d 514, 516-17 (La. 1974) (holding that although charged with armed robbery of a gas company, the defendant received adequate notice of the charge against him and was not prejudiced by the indictment).
There is little question that Prasertphong understood the charges against him. And the error was cured by the instructions to the jury. For example, the trial court instructed the jury that " he indictment is not evidence against the defendant," that robbery required proof that the defendant took another person's property "from the other person's person or immediate presence," and also required the taking to be against "the person's" will and that force was used against "any person." (Emphasis added.) Given these instructions, the jury doubtlessly understood that for a robbery to occur, the property had to be taken from and the force had to be used against the employees of the Pizza Hut, rather than the Pizza Hut itself. As a whole, the jury instructions sufficiently explained the crime of robbery to the jury to assure Prasertphong a fair trial.
X.
Prasertphong finally argues that the use of dual juries requires reversal because the procedure violated his constitutional right to have a trial free from the antagonistic defense of his co defendant. At trial, Prasertphong objected to the use of the dual jury procedure, arguing that there were few witnesses in common and that most of the evidence would not be jointly presented because of the antagonistic defenses of the co-defendants. Despite the objection, the trial court employed the dual jury procedure. Because Prasertphong did not suffer actual prejudice, the State argues that reversal is not required. See State v. Lambright, 138 Ariz. 63, 69-70, 673 P.2d 1, 7-8 (1983), overruled on other grounds by Hedlund v. Sheldon, 173 Ariz. 143, 146, 840 P.2d 1008, 1011 (1992). We review a trial judge's decision to employ a dual jury procedure for abuse of discretion. Hedlund, 173 Ariz. at 143, 840 P.2d at 1008.
Dual jury trials permit co-defendants to be tried simultaneously by different juries, with each jury hearing only the evidence admissible against the particular defendant whose case it must decide. The procedure often provides a solution to problems of co-defendant statements under the Bruton rule, and of the resulting prejudice when co-defendants assert antagonistic defenses during a joint trial. Annotation, Propriety of Use of Multiple Juries
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