State v. Wilson

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) TYRONE WILSON, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 04/26/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CR 11-0629 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Coconino County Cause No. S0300CR201000928 The Honorable Mark R. Moran, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix H. Allen Gerhardt, Jr., Coconino County Public Defender By H. Allen Gerhardt, Jr. Attorneys for Appellant Flagstaff D O W N I E, Judge ¶1 Tyrone Wilson on an appeals alleged from defect his in convictions sentences based the process. 1 jury and selection For the following reasons, we affirm. DISCUSSION ¶2 Immediately trial, a before discussion jury selection occurred among began in defense Wilson s counsel ( Mr. Harvey ), the court, and the prosecutor ( Mr. Mosher ) regarding a member of the jury panel who had been summoned but excused by the court ( Potential Juror ): MR. HARVEY: . . . I was informed the Court excused [Potential Juror], and I d like to put on the record that the defense was not consulted about that. As far as the defense knows, [Potential Juror] is not incompetent to sit as a juror, and so we object and would argue it s a fundamental error and ask for a short continuance and new jury panel. THE COURT: Okay. Mr. Mosher. MR. MOSHER: If I may supplement the record as to [Potential Juror]. And this is not something that the Court is aware of but it s something I intended to bring up had [Potential Juror] been here . . . . I would have . . . asked that [Potential Juror] be excused because he . . . represent[ed] somebody in a position adversarial to me within the last few months. THE COURT: Mr. Mosher. All right. 1 Thank you, Because the facts relating to the convictions and sentences are not relevant to the one issue Wilson raises on appeal, we do not discuss them. 2 Court can put on the record its reason for excusing [Potential Juror]. [He] is related to my court reporter. If [he] is seated on the panel, I need to have a new court reporter. At this point in time, this late in the process, I don t even know if I could secure a court reporter for the next two weeks, which this trial is scheduled for. I did not find out about this issue or that he was on the panel until yesterday. To me it didn t make any sense to bring him in here and then send him back home because it would be a direct conflict with him serving on a jury that my court reporter is also performing her duties on. So that s the reason why I excused him, not because he was a lawyer. I don t know if we have other lawyers. We have nurses on the panel, et cetera. Other lawyers have been seated on panels and so forth. So that was the Court s reasoning. ¶3 new The trial court denied defense counsel s request for a jury panel. After timely appealed. Section 9, of his conviction and sentence, Wilson We have jurisdiction pursuant to Article 6, the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) and 13-4033(A)(1). DISCUSSION ¶4 Wilson constitutional asserts rights to violations an of impartial his jury state and federal and due process because the court unilaterally excused the Potential Juror for no legitimate reason. novo. We review constitutional challenges de State v. Gay, 214 Ariz. 214, 217, ¶ 4, 150 P.3d 787, 790 (App. 2007) (citation omitted). We also review de novo the interpretation of statutes and the rules of criminal procedure. 3 State v. Tillmon, 222 Ariz. 452, 454, ¶ 8, 216 P.3d 1198, 1200 (App. 2009) (citation omitted); State v. Barnett, 209 Ariz. 352, 354, ¶ 7, 101 P.3d 646, 648 (App. 2004) (citation omitted). ¶5 The Arizona Rules of Criminal Procedure require potential jurors to be sworn and then examined by the court to establish their qualifications ( Rule ) 18.5(a)-(c). to serve. Ariz. R. Crim. P. Here, the court excused the Potential Juror the day before trial began, without notice to or input from the parties. The State appears to concede that the Potential Juror did not fall within one of the categories for automatic dismissal set forth in A.R.S. § 21-211. ¶6 We agree with Wilson that the court erred in dismissing the juror as it did. Because Wilson raised a timely objection, we the harmless. See State v. Soliz, 223 Ariz. 116, 119, ¶ 10, 219 P.3d 1045, consider 1048 whether (2009) (citation trial omitted) court s error ( Harmless was error review applies when the defendant objects to the alleged error at trial. ). Error, be it constitutional or otherwise, is harmless if we can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict. State v. Anthony, 218 Ariz. 439, 446, ¶ 39, 189 P.3d 366, 373 (2008) (citations omitted). The State has the burden of convincing us that any error was harmless. Id. 4 ¶7 As have the State long held that particular juror or correctly a notes, defendant particular is our not appellate entitled composition of courts to jurors. any See, e.g., State v. Doerr, 193 Ariz. 56, 65, ¶ 40, 969 P.2d 1168, 1177 (1998) (citations omitted) ( The Sixth Amendment guarantees a fair and impartial jury, but not one having a specific makeup. ); State v. Arnett, 119 Ariz. 38, 50, 579 P.2d 542, 554 (1978) (defendant in a criminal case is not entitled to be tried by any particular jury ); Kinsey v. State, 49 Ariz. 201, 209-10, 65 P.2d 1141, 1145 (1937) ( The exclusion of a juror by the court, even though erroneous, is of itself never a ground for reversal, for the defendant is not entitled to have his case tried by any particular juror, but merely by twelve who are properly qualified and impartial. ). ¶8 Wilson does not contend the jurors who ultimately presided over his trial were not properly qualified or that they were anything but impartial. We also disagree with Wilson s assertion that the court dismissed the Potential Juror for no legitimate reason. was related trial. to the The trial judge explained that the juror court reporter assigned to the two-week Cf. Ariz. Rev. Stat. § 21-202(B)(2) (a potential juror may be excused from service if the judge determines service would substantially and materially affect the public interest or welfare in an adverse manner ). 5 ¶9 No cause shall be reversed for technical error in pleadings or proceedings when upon the whole appear that substantial justice has been done. case it shall Ariz. Const. art. 6, § 27. Under the circumstances presented here, where Wilson a received fair trial before an impartial jury, court s procedural error does not mandate reversal. the State v. Griswold, 105 Ariz. 1, 3, 457 P.2d 331, 333 (1969) ( We do not view every procedural error as automatically giving rise to such prejudice that a reversal is required. ). CONCLUSION ¶10 Wilson s convictions and sentences are affirmed. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ PATRICIA K. NORRIS, Presiding Judge /s/ MICHAEL J. BROWN, Judge 6

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