STATE v. DEALS

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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. ) ) ROBERT DEALS, ) ) Appellant. ) __________________________________) DIVISION ONE FILED: 10/29/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0628 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-142391-006 The Honorable Karen L. O Connor, Judge AFFIRMED Thomas C. Horne, Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section And Adriana M. Zick, Assistant Attorney General Attorneys for Appellee Phoenix Law Office of Nicole Farnum By Nicole T. Farnum Attorneys for Appellant Phoenix G O U L D, Judge ¶1 Robert Deals ( Appellant ) appeals the trial court s denial of a motion to strike a juror for cause. Appellant argues that because the court denied his motion, he was forced to use a peremptory juror strike remained and, on the as a result, jury. For another the allegedly following biased reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Appellant was charged with one count of conspiracy, one count of illegally conducting an enterprise, one count of possession of marijuana for sale, one count of transportation of marijuana for sale, and one count of money laundering. He was tried in absentia. ¶3 During voir dire, the court questioned the prospective jury panel about whether they would be influenced by Appellant s absence during the trial. Juror 9 indicated that she thought Appellant s absence kind of shows that he s guilty. The court attempted to rehabilitate Juror 9, and she ultimately stated that she would try really hard to determine the facts only from the evidence presented, even though she already kind of [had her] own opinion on it. Appellant moved to strike Juror 9 for cause. The court denied Appellant s motion, and Appellant subsequently used a peremptory strike to remove Juror 9 from the panel. Appellant thereafter passed the panel for cause. ¶4 After Following trial Appellant was found guilty as charged. Appellant appeal. was sentenced, he filed a timely notice of This Court has jurisdiction under Arizona Constitution 2 Article VI, Section 9, and Arizona Revised Statutes ( A.R.S. ) §§ 12-120.21(A)(1), 13-4031, and 13-4033(A). DISCUSSION ¶5 Appellant argues the court erred in refusing to strike Juror 9 for cause. Appellant contends that he was prejudiced by this error because he was forced to peremptorily strike Juror 9; as a result, he was unable to strike Juror 39, another allegedly biased juror. ¶6 The curative use of a peremptory challenge is subject to harmless error review. State v. Hickman, 205 Ariz. 192, 198, ¶ 28, 68 P.3d 418, 424 (2003). Even if a court errs in refusing to strike a biased juror, a defendant must still show he suffered prejudice. consists defendant Id. of had If the trial jury that is ultimately impaneled fair and impartial to use a jurors, peremptory the challenge fact to that the achieve [an impartial jury] does not mean the Sixth Amendment was violated. United States v. Martinez-Salazar, 528 U.S. 304, 313, (2000); State v. Rubio, 219 Ariz. 177, 179, ¶ 5, 195 P.3d 214, 216 (App. 2008) ( [A] defendant s curative use of a peremptory strike to remove a prospective juror who should have been stricken for cause is subject to harmless error review. ). ¶7 Thus, to determine whether Appellant was prejudiced by the court s refusal to strike Juror 9 for cause, we must examine whether Juror 39 was biased. Rubio, 219 Ariz. at 179, ¶ 6, 195 3 P.3d at 216 (stating that a defendant must show that the remaining juror was biased and subject to a challenge for cause). ¶8 Appellant has waived any claim of prejudice because he did not move to strike Juror 39 for cause. See Rubio, 219 Ariz. at 180, ¶ 8, 195 P.3d at 217 ( [E]ven if a prospective juror s answers show he or she cannot be fair and impartial, the defendant waives any error by failing to timely challenge that juror. ); State v. Bravo, 131 Ariz. 168, 171, 639 P.2d 358, 361 (App. 1981) ( Even though the answers of a venireman demonstrate that he cannot waived. ). be fair and impartial, the challenge may be While Appellant objected to Juror 9, he passed the rest of the panel for cause, including Juror 39. ¶9 Furthermore, the record does not indicate that Juror 39 was biased. that he Juror 39 s statements throughout voir dire indicate would be fair and impartial. When he was told to disregard the fact Appellant would be absent during trial, he responded, I m okay with it. When asked whether his father s experience having been arrested would affect his ability to be fair and impartial in this case, he answered No. Juror 39 did state that he had a bad opinion of those kind of people when telling the court that he had suspected of being a drug dealer. worked with an individual he However, when the court stated that he would have to lay those [opinions] aside and just judge this case based upon the evidence presented in this courtroom, 4 Juror 39 responded that he could do so. Lavers, 168 Ariz. 376, 390 91, 814 See, e.g., State v. P.2d 333, 347 48 (1991) (upholding trial court s refusal to strike juror who said news reports would haunt his memory but he could decide case based solely on evidence admitted at trial); State v. Comer, 165 Ariz. 413, 423 26, 799 P.2d 333, 343 46 (1990) (finding no error in refusing to strike juror who said defendant was probably guilty, but later stated he could try to form a final opinion based on evidence). ¶10 not On the record before us, we conclude that Juror 39 was biased. court s Therefore, refusal Appellant to received Appellant strike a trial Juror by was 9 a for fair not prejudiced cause. and We by the conclude impartial jury. Martinez-Salazar, 528 U.S. at 313, ( So long as the jury that sits is impartial . . . the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated. ). 5 CONCLUSION ¶11 For the foregoing reasons, Appellant s convictions and sentences are affirmed. /S/_____________________________ ANDREW W. GOULD, Presiding Judge CONCURRING: /S/_________________________________ MICHAEL J. BROWN, Judge /S/__________________________________ DONN KESSLER, Judge 6

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