¶1specially concurring:
¶2I concur both with the result in this case and with the test applied by the majority. In determining whether the defendant received a fair ferial from an independent jury whose members “were free from intimidation or undue pressure,” we must consider the “totality of the circumstances.” At 9, 881 P.2d at 341.
¶3I do not entirely agree, however, with the majority’s analysis of the specific circumstances present in this case. I am concerned by the emphasis that the majority places on the “coercive” effect of sending the jury back for further deliberations after polling them regarding their vote. The majority suggests that the polling process itself made an unpressured verdict no longer possible. At *1211, 881 P.2d at 343. The majority’s emphasis on the coercive nature of this process may make judges wary of using this mandated procedure in other situations, even when it may be appropriate. See rule 23.4, Arizona Rules of Criminal Procedure.
¶4As Justice Martone points out in his dissent, the judge in this case complied with the procedures established by the Arizona Rules of Criminal Procedure; the process of polling the jurors and directing them to return to the jury room for further deliberations is expressly prescribed in the rules. At 12, 881 P.2d at 344 (Martone, J., dissenting); Rule 23.4. Unlike Justice Martone, however, I do not agree that mere compliance with this procedure is sufficient to overcome the majority’s conclusion that an impermissible level of pressure was present in this case.
¶5One of the circumstances that concerns me is juror number l’s (“Juror 1”) demonstrated susceptibility to influence, a factor not considered in the majority’s opinion. I am bothered by the majority’s reference to checking Juror 1 for bruises; not only is this reference totally unwarranted by the facts presented to us in this case, but the reference tends to obscure one of the important factors that we should consider: Juror .l’s demonstrated willingness to allow the jury to attempt to return a verdict with which she did not agree.
¶6I, like the majority of the court, am particularly concerned by the timing of the deliberations. See at 10, 881 P.2d at 342. The possibility for undue influence is inherently present when the jury is sent to deliberate in a DUI case late in the afternoon on New Year’s Eve. Given the special circumstances of this case, a better procedure would have been to recess the jury after the polling process and reconvene the jury for further deliberations after the holiday.
¶7When the timing of the deliberations is combined with the potential influence of the juror polling process and Juror l’s susceptibility to influence from other jury members, I cannot say that the defendant received “a fair trial from an independent jury.”
¶8. Although we cannot know with certainty what Juror 1 believed at the time the jury attempted to return its first verdict, the circumstances suggest a strong possibility that Juror 1 allowed the jury to return a verdict that was not supported by her independent judgment and belief. The foreman’s negative reply when asked whether further deliberations would be helpful suggests that the foreman was not surprised by Juror l’s response. If Juror 1 had previously supported the guilty verdict, or had even shown a tendency to waiver back and forth, we would have expected the foreman to want to deliberate further regarding the change before concluding that further deliberations would be pointless.