State v. Escobedo
| Decision Date | 11 August 2009 |
| Docket Number | No. 1 CA-CR 08-0295.,1 CA-CR 08-0295. |
| Citation | 213 P.3d 689,222 Ariz. 252 |
| Parties | STATE of Arizona, Appellee, v. Xavier Garcia ESCOBEDO, Appellant. |
| Court | Arizona Court of Appeals |
Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Sarah E. Heckathorne, Assistant Attorney General, Phoenix, Attorneys for Appellee.
Bruce F. Peterson, Office of the Legal Advocate By Consuelo M. Ohanesian, Deputy Legal Advocate, Phoenix, Attorneys for Appellant.
¶ 1 The question presented in this case is whether the failure to impanel a required twelve-person jury is structural error or trial error. If such an error is structural, automatic reversal is required. State v. Hickman, 205 Ariz. 192, 199 n. 7, ¶ 29, 68 P.3d 418, 425 n. 7 (2003). ("[S]tructural errors require automatic reversal."). If it is trial error, it is subject to fundamental error analysis, as Defendant did not object to the failure to impanel twelve jurors. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error analysis places the burden of proving prejudice on the defendant. Id. at ¶ 20. Additionally, fundamental error, but not structural error, may be waived via the invited error doctrine. State v. Logan, 200 Ariz. 564, 565-66, ¶ 9, 30 P.3d 631, 632-33 (2001) ( ). Thus, the determination as to whether the error in this case is structural or fundamental becomes critical.
¶ 2 For the reasons that follow, we determine that the failure to impanel a twelve-person jury when required is fundamental, but not structural, error. As the error was invited, it is not reversible. Accordingly, we affirm.
¶ 3 On April 12, 2007, a grand jury indicted Defendant on four counts, summarized as follows: count 1, forgery based on attempting to cash a fraudulent check made out to "Albert Ruiz"; count 2, forgery for presenting a counterfeit driver's license bearing the name "Albert Ruiz" when attempting to cash the check; count 3, taking the identity of "Albert Ruiz" by identifying himself, independent of the two documents in counts 1 and 2, to a police officer as "Albert Ruiz"; and count 4, possession of burglary tools for carrying multiple jiggle keys in his wallet. Defendant declined the State's plea offer and proceeded to trial.
¶ 4 A jury composed of eight jurors found Defendant guilty on all four counts. Based on Defendant's admissions during his testimony, the trial court found that Defendant had two historical prior felony convictions. The trial court sentenced Defendant to the presumptive term of imprisonment for each count—ten years' imprisonment for each count of forgery, ten years' imprisonment for taking the identity of another, and 3.75 years' imprisonment for possession of burglary tools—with the terms of imprisonment to run concurrently.
¶ 5 Defendant timely filed a notice of appeal on April 11, 2008. Defendant's counsel determined that there were no arguable issues that she could present to us and asked us to review this matter for reversible error pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). After reviewing the record, we asked the parties to brief whether Defendant was entitled to a twelve-person jury and, if so, to specify any relief to which Defendant was entitled. The parties subsequently filed supplemental briefs on this issue.
¶ 6 We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A)(1) (Supp.2008).
¶ 7 Defendant argues that his convictions must be vacated because he was entitled to a twelve-person jury and did not personally waive this constitutional guarantee. The State argues that Defendant cannot show fundamental prejudicial error, or, alternatively, that any error is invited error and therefore precluded from review.1 The critical issue, however, as we indicate at the outset, is whether the failure to impanel a twelve-person jury when constitutionally required is structural error.
¶ 8 If the error is structural, then we need not consider whether the error was invited or whether Defendant has met his burden of showing prejudice. Accordingly, it is to the question of structural error that we first turn.
¶ 9 Article 2, Section 23, of the Arizona Constitution dictates the number of jurors required in criminal cases:
The right of trial by jury shall remain inviolate. Juries in criminal cases in which a sentence of death or imprisonment for thirty years or more is authorized by law shall consist of twelve persons. In all criminal cases the unanimous consent of the jurors shall be necessary to render a verdict. In all other cases, the number of jurors, not less than six, and the number required to render a verdict, shall be specified by law.
Ariz. Const. art. 2, § 23. As can be seen, Arizona's constitution requires a twelve-person jury when a sentence of thirty years or more is authorized. By statute, Arizona uses the same thirty-year marker to require either twelve- or eight-person juries in criminal cases:
A. A jury for trial of a criminal case in which a sentence of death or imprisonment for thirty years or more is authorized by law shall consist of twelve persons, and the concurrence of all shall be necessary to render a verdict.
B. A jury for trial in any court of record of any other criminal case shall consist of eight persons, and the concurrence of all shall be necessary to render a verdict.
¶ 10 There is no federal constitutional analog to Arizona's right to a twelve-person jury when a sentence of thirty years or more is authorized. In fact, the United States Supreme Court has made it clear that a criminal trial, regardless of the severity of the authorized sanction, comports with federal constitutional standards without having twelve persons in the jury. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). In ruling on the constitutionality of Florida's statute permitting a six-person jury, the Court stated:
The question in this case then is whether the constitutional guarantee of a trial by "jury" necessarily requires trial by exactly twelve persons, rather than some lesser number—in this case six. We hold that the 12-man panel is not a necessary ingredient of "trial by jury," and that respondent's refusal to impanel more than the six members provided for by Florida law did not violate petitioner's Sixth Amendment rights as applied to the States through the Fourteenth.
Id. at 86, 90 S.Ct. 1893. Thus, the basis for our determination of whether an error that leads to a violation of the twelve-person jury requirement constitutes structural error must be grounded in Arizona law.
¶ 11 Arizona cases have not referred to the error in failing to provide a twelve-person jury in a uniform fashion. Our cases have referred to this error both as "fundamental error," State v. Henley, 141 Ariz. 465, 469, 687 P.2d 1220, 1224 (1984); State v. Smith, 197 Ariz. 333, 340, ¶ 21, 4 P.3d 388, 395 (App.1999); State v. Luque, 171 Ariz. 198, 201, 829 P.2d 1244, 1247 (App.1992); State v. Price, 218 Ariz. 311, 314, ¶ 10, 183 P.3d 1279, 1282 (App.2008); and as "structural error," State v. Anderson, 197 Ariz. 314, 323, ¶¶ 21-22, 4 P.3d 369, 378 (2000); State v. Ring (Ring III), 204 Ariz. 534, 565-66, ¶¶ 106-07, 65 P.3d 915, 946-47 (2003) (Feldman, J., concurring in part and dissenting in part).
¶ 12 There are substantial arguments that can be made on each side of this issue. We present first those authorities that support a holding that the error is fundamental. Next we set forth those arguments in favor of a conclusion that the error is structural.
¶ 13 First, the core of the argument that an error in failing to provide a required twelve-person jury is subject to fundamental error analysis is that the only Arizona Supreme Court decision to decide the issue expressly designated it "fundamental" and then reviewed the error to see if it was "harmful." Henley, 141 Ariz. at 469, 687 P.2d at 1224.2 In Henley, the Arizona Supreme Court agreed with the defendant that a twelve-person jury was required yet not provided. Id. Henley recognized the Williams case as approving as a federal constitutional matter juries of only six and based its analysis on our separate state constitutional requirement of a jury of twelve when "imprisonment for thirty years or more is authorized." Id. at 468, 687 P.2d at 1223 (quoting Ariz. Const, art. 2, § 23).
¶ 14 The court noted that the defendant failed to object to the eight-person jury. Id. Instead of proceeding to a structural error or automatic reversal mode of analysis, the court applied a traditional fundamental error analysis. Id. It expressly stated that "[f]undamental error need not be reversible when there is substantial evidence in the record to support the verdict and it can be said that the error did not, beyond a reasonable doubt, contribute significantly to the verdict." Id. (emphasis added). The court expressly found that "[t]he harmless error doctrine is an appellate court doctrine to be applied when fundamental error has been committed in the trial court, and the error, though fundamental, is harmless beyond a reasonable doubt." Id. (emphasis added) (quoting State v. Sorrell, 132 Ariz. 328, 330, 645 P.2d 1242, 1244 (1982)). The supreme court then continued its analysis and held:
Because we cannot say beyond a reasonable doubt that the error did not significantly contribute to the defendant's conviction, the...
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...(court would not apply invited error doctrine when it could not tell which party proposed the stipulation). But cf. State v. Escobedo, 222 Ariz. 252, 266, ¶ ¶ 49-50, 213 P.3d 689, 703 (App. 2009) (when twelve-person jury is required by law, defendant invites erroneous jury size by submittin......