0668. . . . . . ..State v. Sanchez

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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. ALBERT CISNEROS SANCHEZ, Appellant. ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 10-0656 1 CA-CR 10-0668 (Consolidated) DIVISION ONE FILED: 05/26/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause Nos. CR2007-173556-001 DT and CR2010-103388-001 DT The Honorable Julie P. Newell, Judge Pro Tempore AFFIRMED Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Myles A. Braccio, Assistant Attorney General Attorneys for Appellee Phoenix Bruce Peterson, Office of the Legal Advocate by Frances J. Gray, Deputy Legal Advocate Attorneys for Appellant Phoenix B A R K E R, Judge ¶1 Albert Cisneros Sanchez appeals his convictions and sentences for burglary in the second degree and possession of burglary tools, and the resulting revocation of the probation he was serving on a prior offense, on the ground the trial court committed structural error in excusing two jurors for cause. Sanchez asserts he should have received the opportunity rehabilitate them through additional voir dire. that the trial court further violated excusing these same two jurors. his to He contends Batson 1 rights in For the reasons that follow we find no reversible error and affirm. Facts and Procedural History ¶2 The evidence at trial, viewed in the light most favorable to conviction, showed that the owner of a vacant house in southwest Phoenix saw Sanchez leave the side door of the house and attempt to leap the fence. A police officer in the neighborhood located Sanchez in an alley behind the house and detained him. After the owner reported that copper pipes had been removed, wires had been cut, and walls had been torn out, another officer arrested him. The officers searched Sanchez and found a pair of wire cutters and a flashlight. The arresting officer testified that Sanchez told her he had seen a lot of clothing in the backyard, and [he] just wanted to see if there was anything good [he] [could] take. 1 Sanchez told the officer Batson v. Kentucky, 476 U.S. 79, 89 (1986). 2 he had gone inside the house and a shed on the property. Sanchez had white powder in his hair and white dust on his clothes and his hands. Outside the side entry door, police found a bag with copper piping and wiring that had been cut. A jury convicted Sanchez of the charged offenses. ¶3 The judge subsequently found the existence of a prior historical felony conviction, and that the instant offense was committed while Sanchez was on probation. She sentenced Sanchez to a presumptive term of six and one-half years on the burglary conviction, and one and three-quarter years on the possession conviction, probation, to be served designated the concurrently. undesignated She offense revoked felony, a his and sentenced Sanchez to serve one year in prison with credit for 366 days of pre-sentence incarceration. Sanchez filed a timely notice of appeal in both cases, and this court consolidated the cases on appeal. We have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 134031, and 13-4033(A)(1) (2010). ¶4 follows. The background on the issues raised on appeal is as Before voir dire, each of the prospective jurors had completed a brief written biographical form. The form asked for the juror s name, place of employment, and race. requested information as to whether the juror The form also had ever been convicted of a felony, and, if so, where and when, and whether 3 the juror s civil rights had been restored. By the juror s signature on the form, each prospective juror declared under penalty of law that the foregoing is true and correct. ¶5 One juror, subsequently identified by the prosecutor as Juror No. 11, marked yes to the question whether he had ever been convicted of a felony, but did not detail where and when, and did not mark yes in response to the question whether his civil rights had been restored. was Black/African American. He checked that his race Another juror, subsequently identified as Juror No. 20, marked yes both to the question whether he had ever been convicted of a felony, and whether his civil rights had been restored, but did not detail where and when he had been convicted of the felony. He checked that his race was American Indian/Alaska Native. ¶6 At the start of voir dire, the trial judge advised the venire panel that, to be qualified for jury service, a person must be eighteen years or older, a citizen, a resident of Maricopa County, and must not have been convicted of a felony unless your civil rights have been restored. She advised the panel that she would be happy to discuss the matter in private if the lack of qualifications involved a confidential or sensitive matter, but asked any person [who] does not have all of these qualifications, [to] please raise your hand now. then noted, I take it by your silence the answer is no. 4 She ¶7 After the judge had completed voir dire, she invited counsel to ask any follow-up questions. ask any follow-up brief follow-up. questions; defense The prosecutor did not counsel conducted only The judge concluded voir dire and ordered a recess to allow her and counsel to consider strikes for cause and peremptory strikes, and directed the panel to return to the courtroom in thirty-five minutes. ¶8 After the judge had identified a number of prospective jurors she planned to excuse for cause, the prosecutor outlined his concerns with respect to the jurors mentioned by the judge, and then commented: I would also note, Juror Number 11 indicated on his biographical information that he had been previously convicted of a felony. He left the boxes as to whether he thinks his rights have been restored blank. The prosecutor challenged Juror No. 11 s qualifications to be a juror. was The prosecutor also mentioned that another juror, who later identified as Juror No. 20, had indicated on the written form that he had been convicted of a felony but noted that his civil rights had been restored. ¶9 Sanchez asked to question Juror No. 11 to make sure he had not mistakenly checked the wrong box. attempted to locate Juror No. 11. However, the panel was on break and the bailiff was not successful. 5 The bailiff twice The judge accordingly denied this request for additional questioning. The judge instead struck both Juror No. 11 and Juror No. 20 for cause over Sanchez s objection, explaining that the failure of these two prospective jurors to supply the requested details on the written form regarding their prior felony convictions, and the inconsistency between their written responses and their oral responses on whether they had ever been convicted of a felony caused her concern. ¶10 On further inquiry by the judge, Sanchez confirmed that he had an additional concern that Juror No. 11, in the judge s words, falls under a possible Batson challenge. The trial judge later noted that Juror No. 20 also falls into a Batson category. ¶11 Sanchez argues first that the trial judge committed structural error in excusing these two jurors for cause without allowing him to attempt to rehabilitate them, depriving him of his constitutional right to an impartial jury. We review a trial court s decision to excuse a juror for cause for abuse of discretion. State v. McGill, 213 Ariz. 147, 152, ¶ 14, 140 P.3d 930, 935 (2006); State v. Glassel, 211 Ariz. 33, 47, ¶ 46, 116 P.3d 1193, 1207 (2005). The scope and extent of voir dire is also left to the sound discretion of the trial court. State v. Walden, 183 Ariz. 595, 607, 905 P.2d 974, 986 (1995). We look to the entire voir dire to determine whether the trial court 6 abused its discretion, and we will not disturb the trial court s decision to limit voir dire or to excuse jurors for cause unless the defendant impartial. demonstrates that the jury was not fair and Id.; see also State v. Moody, 208 Ariz. 424, 451, ¶ 95, 94 P.3d 1119, 1146 (2004) (holding that to succeed on a claim regarding inadequate questioning of the jury panel, the defendant must demonstrate not only that the voir dire examination was inadequate, but also that, as a result of the inadequate questioning, the jury selected was not fair, unbiased, and impartial ). ¶12 these We find no abuse of discretion in the judge s excusing two jurors Arizona law from provides service that without convicted further felons may voir not dire. serve jurors, unless their civil rights have been restored. § 21-201(3) provides (2002). that a Arizona judge shall Criminal excuse Procedure a juror A.R.S. Rule when as 18.4(b) there is reasonable ground to believe that a juror cannot render a fair and impartial verdict. Among the reasons a judge may excuse a juror the for cause is if juror has been convicted of a felony. See Ariz. R. Crim. P. 18.4(b) cmt. ¶13 The judge had reasonable ground to believe that Juror No. 11 was simply not qualified to serve as a juror; he had stated on his biographical form that he had been convicted of a felony, and he had not noted that his civil rights had been 7 restored. See A.R.S. § 21-201(3). Moreover, the judge had reason to believe that Juror No. 11 had not been candid with the court, either on the original form, or in his repeated failure to acknowledge the conviction in oral voir dire. the judge abused her discretion in declining We cannot say to delay jury selection until the panel returned from recess to allow Sanchez to re-open voir dire to attempt to rehabilitate him. ¶14 Nor are we persuaded that the judge abused her discretion in excusing Juror No. 20 for cause without further voir dire. prior Based solely on his written responses regarding the felony conviction, this juror met the legal qualifications, as he stated on the form that his civil rights had been restored. But the judge found it troubling that Juror No. 20 did not supply the date and place of his conviction asked for on the written form and did not admit to the prior felony conviction when asked in oral voir dire. These discrepancies gave the judge reasonable grounds to believe that this juror also was not being candid with the court. Thus, reasonable grounds existed to excuse him for cause without re-opening voir dire. ¶15 The judge had given Sanchez a reasonable time to conduct a further oral examination of the prospective jurors, as required under Rule 18.5(d). Sanchez apparently simply had not noticed these jurors responses to the qualifying question 8 on their written forms before voir dire ended. On this record, we find no abuse of discretion in the judge s resolution of this issue. ¶16 Moreover, even if the trial court did abuse its discretion in striking these jurors for cause without allowing further voir dire, Sanchez has failed to present any evidence that the jury that ultimately convicted him was not fair or impartial, as necessary for reversal. See Walden, 183 Ariz. at 609, 905 P.2d at 988 (holding that judge s erroneous striking of juror for cause does not warrant reversal unless the record affirmatively shows that such a fair and impartial jury was not secured ); cf. State v. Hickman, 205 Ariz. 192, 199-200, ¶ 32, 68 P.3d 418, 425-26 (2003) (holding that trial court s error in refusing to strike juror for cause is subject to harmless error review). ¶17 197 Sanchez misplaces his reliance on State v. Anderson, Ariz. 314, 4 P.3d 369 (2000), a capital case, for the proposition that any error involving the composition of the jury is structural error, requiring reversal. In Anderson, our supreme court held that the denial of the defendant s request for oral voir dire that might have rehabilitated three jurors who had expressed general objections to capital punishment in a written questionnaire, and the judge s discharge of these jurors based on their unexamined views, constituted structural error, 9 requiring reversal. Id. at 317-24, ¶¶ 4-24, 4 P.3d at 372-79. The Anderson court narrowly held only that [h]armless error analysis is inapplicable to the erroneous grant of challenges for cause on Witherspoon-type issues, that is, issues involving a capital defendant s constitutional right not to be tried by a jury chosen by excluding persons who have a general objection to the death penalty. Id. at 318-24, ¶¶ 6-24, 4 P.3d at 373-79. We find nothing in Anderson to suggest that our supreme court intends its holding to apply outside the special circumstances of death penalty jurisprudence. and unique See id. at 322- 24, ¶¶ 20-24, 4 P.3d at 377-79. ¶18 Moreover, the facts in Anderson are distinguishable. The judge in this case did not deny appellant oral voir dire; she simply declined to re-open voir dire after the prosecutor challenged Juror No. 11 based on the felony conviction he reported in his written form, and noted that Juror No. 20 had also reported having been convicted of a felony. circumstances, Anderson does not apply. Under these See State v. Canez, 202 Ariz. 133, 147, ¶ 30, 42 P.3d 564, 578 (noting we need not address Anderson because here, oral voir dire was conducted ). Thus, the general rule that an error in striking a juror is not cause for reversal unless the record affirmatively shows that a fair and impartial jury was not secured applies. See Walden, 183 Ariz. at 609, 905 P.2d at 988; see also State v. Morris, 215 10 Ariz. 324, 334, ¶ 40, 160 P.3d 203, 213 (2007) ( Although a defendant in a criminal case is entitled to a fair and impartial jury for the trial of his case, . . . he is not entitled to be tried by any particular jury. ) (quoting State v. Atwood, 171 Ariz. 576, 607, 832 P.2d 593, 624 (1992)). Here, the record fails to show any evidence demonstrating that the jury that tried Sanchez was not fair and impartial. Under these circumstances, any error in discharging these jurors for cause does not require reversal. See id. Batson Challenge ¶19 Sanchez next argues that the trial court committed structural error by excluding these same jurors after denying him the opportunity to rehabilitate them through additional voir dire, by knowingly permit[ing] the State to evade the scrutiny of a Batson inquiry. He argues that the State s delay in bringing Juror No. 11 s lack of qualifications to the court s attention supports an inference that the State s challenging Juror No. 11 for cause was racial. reason for We find no merit in this argument. ¶20 Amendment The Equal prevents Protection peremptory based solely upon race. (1986). Clause strikes of of the Fourteenth prospective jurors Batson v. Kentucky, 476 U.S. 79, 89 A Batson challenge proceeds in three steps: (1) the party challenging the strikes must make a prima facie showing of 11 discrimination; (2) the striking neutral for the strike; reason party and must (3) provide if a a race- race-neutral explanation is provided, the trial court must determine whether the challenger has carried racial discrimination. its burden of proving purposeful State v. Roque, 213 Ariz. 193, 203, ¶ 13, 141 P.3d 368, 378 (2006) (citations omitted). We review a trial court s decision regarding the State s motives for a peremptory strike for clear error. Id. at ¶ 13. We give great deference to the trial court s ruling, based, as it is, largely upon an assessment of the prosecutor s credibility. Canez, 202 Ariz. at 147, ¶ 28, 42 P.3d at 578. ¶21 In this case, the judge herself determined to excuse these two because minority of their jurors, prior not felony because convictions candor with the court regarding same. judge had basis. reasonable grounds of to their and race, their but lack of We have found that the excuse these jurors on this Our review of the record gives us no cause to believe that the prosecutor deliberately delayed his challenge of Juror No. 11 until after the close of voir dire for discriminatory purposes, or that the judge struck these two minority jurors for the purpose inquiry. of allowing the prosecutor to evade a Batson The prosecutor did not, in fact, seek to have Juror No. 20 for cause; it was the judge who determined that the lack of details provided on his prior conviction on the written form 12 and his lack of candor with the court in oral voir dire provided cause to excuse him as well. Accordingly, we find no merit in Sanchez s claim that these jurors were excused based on their race. The Batson challenge has no merit. Conclusion ¶22 For the foregoing reasons, we affirm Sanchez s convictions, the revocation of his probation, and his sentences. /s/ ____________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ PETER B. SWANN, Presiding Judge /s/ ____________________________________ PATRICIA K. NORRIS, Judge 13

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