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State v. Prasertphong9/2/2003
at Joint Trial of Multiple Defendants in State Criminal Prosecution, 41 A.L.R. 4th 1189, 1190 (1985); Am Jur. 2d Trial ยง 162 (1991); see also Bruton v. United States, 391 U.S. 123, 137 (1968). The procedure also helps eliminate some of the general problems of duplication of effort, expense, and time that might occur in separate trials. 41 A.L.R. 4th at 1190-91.
Use of dual juries is acceptable when the result avoids the "spectacle" of antagonistic defenses. People v. Brooks, 285 N.W.2d 307, 308 (Mich. 1979). This court has generally approved the use of dual juries, recognizing that trial judges have broad discretion to employ particular trial techniques to meet a specific problem in a single case. Hedlund, 173 Ariz. at 146, 840 P.2d at 1011. However, we warned that although the dual jury procedure was not unconstitutional or prejudicial per se, a judge should consider the nature of the offense in determining whether to employ a dual jury in a capital case. Id.
Here, Prasertphong and Huerstel were charged with the same crimes but presented antagonistic defenses. After granting a motion to sever the trials, the trial judge determined that a dual jury procedure would be more efficient than separate trials. The juries were instructed that the procedure was being used because "while most of the evidence is admissible against both defendants, some of the evidence is only admissible against one of the defendants."
In this case, the charges against both co-defendants were read in the presence of both juries. As in Hedlund, the judge here anticipated that outside of the co-defendant's statements to police, virtually all of the evidence would be admissible against both defendants. Furthermore, following the lead of Hedlund, the opening and closing statements, as well as jury instructions, were given to each jury separately.
Contrary to Prasertphong's argument, Hedlund did not hold that dual juries are only appropriate when "virtually all" of the evidence is admissible against both defendants. Rather, as here, the court noted that the procedure was employed because it "appeared" to the trial judge that virtually all of the evidence would be admissible against both defendants. See Hedlund, 173 Ariz. at 144, 840 P.2d at 1009. Although more separation of the juries than initially expected occurred, that circumstance does not render use of the dual jury procedure prejudicial to Prasertphong. Because use of dual juries is permissible and not per se prejudicial, and because there is no evidence of prejudice in this case, the trial court did not abuse its discretion in using dual juries.
Although we find no prejudice in this particular case, we reiterate the admonition from Hedlund that a judge should seriously consider the nature of the offense in determining whether to employ a dual jury. 173 Ariz. at 146, 840 P.2d at 1011. Only rarely will dual juries be appropriate in a capital case. Nevertheless, Prasertphong has not demonstrated prejudicial error justifying reversal in this case.
XI.
In compliance with Jones, 203 Ariz. at 12, 43, 49 P.3d at 284, and the June 27, 2002 consolidation order issued by this court as a result of Ring v. Arizona, 536 U.S. 584 (2002), sentencing issues related to the death penalty were not addressed by the parties but will be addressed in supplemental briefing as ordered by this court.
XII.
For the reasons discussed, the convictions are affirmed. The sentences for the armed robberies and the life sentence for the death of Curry are affirmed. The death sentences for the murders of Moniz and Bloxham will be addressed in a supplemental opinion.
Michael D. R
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