State v. Rocco

In State v. Rocco, 119 Ariz. 27, 579 P.2d 65 (Ariz. App. 1978), the bailiff noticed that the alternate had entered the jury room for about a minute, but "no group action of any sort had been taken by the jury prior to or during this intrusion." Id. at 67. The trial court asked the defendant if he wanted to move for a mistrial, noting that "it was possible fundamental error to allow the jury to continue its deliberations. . . .", id., but the defendant did not do so. On appeal, the court stated, id.: "The appellant will not be permitted to wait until after an unfavorable verdict is returned and then complain. Having chosen not to move for a mistrial when the matter first became known and when it appeared the trial judge was favorably disposed to the motion, and having elected to let the jury continue its deliberations in the hope of a verdict of acquittal, appellant cannot now take advantage of this alleged error without showing a strong probability of prejudice."