State of Arizona v. Donald Wayne Dalton (Arizona Supreme Court Case No. CR-16-0012-PR, filed 12/22/2016)

In this criminal appeal, the Arizona Supreme Court clarified the standard for determining whether a trial court’s failure to instruct a jury to begin deliberations anew after permitting the mid-deliberation substitution of a juror constitutes reversible error in cases where the defendant did not object to the trial court’s failure to give the “deliberate-anew” instruction. The Arizona Supreme Court held that when “a defendant does not object to the trial court’s failure to give that instruction and is then convicted, the defendant must establish on appeal that the omission constituted fundamental error.” Because the defendant in this case, Donald Dalton, did not show prejudice from the trial court’s failure to give the deliberate-anew instruction, the Court affirmed his conviction and sentence for second-degree burglary.


When, as here, a defendant does not object to a trial court’s failure to give [a deliberate-anew] instruction and is then convicted, the defendant must establish on appeal that the omission constituted fundamental error.

State v. Dalton, No. CR-16-0012-PR, slip op. at 2, ¶ 1 (Ariz. Dec. 22, 2016)


If the trial court allows the substitution of an alternate juror for a deliberating juror after jury deliberation has commenced, Arizona Rule of Criminal Procedure 18.5(h) requires the trial court to instruct all of the jurors, including the alternate, “to begin deliberations anew.” At the close of Dalton’s two-day criminal trial for second-degree burglary and criminal damage, the jury retired and deliberated for just over two hours before stopping for the day. One of the jurors could not return the next day, so the parties agreed to replace her with an alternate juror who had been released by the trial court prior to, and therefore did not participate in, the jury’s deliberations the day before. The trial court did not instruct the jury to being deliberations anew, and neither party objected. After about 43 minutes, the jury returned its verdict finding Dalton guilty of second-degree burglary and not guilty of criminal damage. The trial court polled the jurors individually, and each confirmed the verdict was his or her true verdict.

In a 2-1 split decision, the Arizona Court of Appeals reversed and vacated Dalton’s conviction and sentence and remanded the case for a new trial. The court of appeals held the trial court’s failure to give a deliberate-anew instruction constituted fundamental error because it violated Dalton’s right to a unanimous verdict under article 2, section 23 of the Arizona Constitution. The court of appeals further held the error was prejudicial to Dalton because the court could not “say beyond a reasonable doubt that the jury would have reached the same result had the superior court properly instructed it to begin deliberations anew when the alternate joined it.”

The Arizona Supreme Court disagreed with the court of appeals’ majority. Assuming without deciding the trial court fundamentally erred in failing to give the deliberate-anew instruction–an issue the supreme court labeled as “debatable”–the supreme court affirmed Dalton’s conviction and sentence because it determined Dalton failed to show the error caused him prejudice. [Fundamental error review requires a defendant to “establish both that fundamental error exists and that the error in his case caused him prejudice.” State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005).] The supreme court held that in order to establish prejudice under fundamental error review, a defendant who does not object to a trial court’s failure to instruct a reconstituted jury to being deliberations anew must show the trial court’s failure to give the deliberate-anew instruction “denied him a deliberative, impartial, unanimous jury verdict, not merely that the jury could have reached a different result had the instruction been given.” Applying this standard to Dalton’s case, the supreme court concluded Dalton failed to carry his burden of showing prejudice.

To support its conclusion, the supreme court pointed to other instructions the trial court did give that “ameliorated the failure to instruct the jury it was required to begin its deliberations anew when the alternate joined it”:

At the close of evidence, the trial court instructed all jurors, including the alternate, that their verdict “must be unanimous” and “[e]veryone must agree”; they were required to discuss their own personal views “as well as the views of other jurors”; and they were to “carefully and impartially consider all of the evidence in this case” while refraining from “tak[ing] a vote until [they had] discussed all the evidence in the case.” . . . And in its preliminary instructions just two days earlier, the trial court admonished the jurors to form their final opinions only after they had heard the final instructions and had “an opportunity to discuss the case with each other” in deliberations. Before dismissing the alternate juror at the end of trial, the court expressly reminded her that those “admonition[s] still appl[y] to you.”

The supreme court assumed, as it usually does, that the jurors followed these instructions, which required all of the jurors (including the alternate) to consider and discuss all of the relevant evidence and the other jurors’ views before reaching a verdict. “In light of these instructions, the presumption that the jurors followed them, and the short time span between the trial court’s instructions and the alternate juror’s returning for deliberations the next morning,” the supreme court concluded that “Dalton has not shown he was denied an impartial, deliberative, and unanimous verdict.” The supreme court noted the polling process, during which each of the jurors “unreservedly confirmed” the verdict was his or her true verdict, “also alleviated any concerns that the alternate juror might have simply acquiesced in a predetermined verdict as a result of coercion, unease, or incomplete deliberation. If the alternate juror or any other juror questioned the verdict, the polling allowed that juror to express disagreement or other concerns, which in turn would have prompted the court to take remedial action.”

The supreme court rejected the defendant’s argument that the discrepancy between the amount of time the jury spent deliberating before the alternate joined (about two hours, including time spent selecting a foreperson, submitting a question to the judge, and deliberating) and the time it spent after the alternate joined (about 43 minutes) demonstrated the alternate juror lacked sufficient time to meaningfully deliberate the issues. The court stated: “Although the comparative time a jury spends deliberating before and after a juror substitution is relevant in determining whether the jury in fact deliberated after the substitution, it is not dispositive.” Under the facts of this case, where the core issue the jury had to decide turned solely on Dalton’s credibility, the supreme court held the reconstituted jury (including the alternate) “could have readily and reasonably concluded in a short time that it did not believe Dalton’s testimony and that he was guilty as an accomplice to burglary.”

Although the defendant in this case failed to show prejudice from the failure to give a deliberate-anew jury instruction, the supreme court “strongly urge[d] trial courts to comply with Rule 18.5(h) by giving a deliberate-anew instruction, whether or not requested” because the instruction “helps to safeguard several constitutional rights.”

The takeaway for practitioners: If a substitution of jurors occurs after deliberations have begun in a criminal trial, be sure to request the trial court provide a deliberate-anew instruction as required by Rule 18.5(h), Ariz. R. Crim. P. The takeaway for trial judges: Give a deliberate-anew instruction whenever a mid-deliberation juror substitution occurs in a criminal trial, even if the parties do not request one.

To read the Arizona Supreme Court’s full published opinion in this case, click here.