State v. Hickman

CourtSupreme Court of Arizona
Citation68 P.3d 418,205 Ariz. 192
Docket NumberNo. CR-01-0424-PR.,CR-01-0424-PR.
PartiesSTATE of Arizona, Appellee, v. Robert Dwight HICKMAN, Appellant.
Decision Date19 May 2003

Reconsideration Denied June 30, 2003.1

Janet A. Napolitano, Arizona Attorney General, by Randall M. Howe, Chief Counsel, Criminal Appeals Section and Cari McConeghy-Harris, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender, by Louise Stark, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

RYAN, Justice.

¶ 1 State v. Huerta requires automatic reversal of a criminal trial when a defendant uses a peremptory strike to remove a prospective juror whom the trial court should have excused for cause. 175 Ariz. 262, 266, 855 P.2d 776, 780 (1993). We granted review to reexamine Huerta's automatic reversal rule in light of the United States Supreme Court's decision in United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000),2 and other recent developments with respect to this issue. We have jurisdiction under Article 6, Section 5(3), of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 13-4031 and -4032 (2001).

I.

¶ 2 A jury convicted Robert Dwight Hickman of three counts of sexual exploitation of a minor for downloading child pornography from the Internet. Hickman appealed raising several issues, including whether the trial court committed reversible error by failing to strike two potential jurors for cause, thereby forcing him to exercise two of his peremptory strikes to remove the venirepersons.

¶ 3 During voir dire, two venirepersons indicated that they had serious reservations about serving on a jury in this case. One venireperson stated, "I'm not quite sure I can be fair with the emotions involved." A second venireperson stated that she would not be able to render a fair verdict. Hickman asked the trial court to strike the potential venirepersons, but the court denied the request. Hickman subsequently used two peremptory challenges to remove both from the panel and was convicted by a fair and impartial jury.

¶ 4 On appeal, citing Huerta, Hickman argued that the trial court's erroneous failure to remove the prospective jurors constituted an abuse of discretion and required automatic reversal. The court of appeals held that "[i]n light of [the venireperson's] unambiguous responses indicating that she would be biased and therefore unable to render a fair verdict, the trial court erred in refusing to strike her for cause."3 State v. Hickman, 1 CA-CR-00-0215, 1 CA-CR-00-0542 (Consolidated), slip op. at ¶ 9 (Ariz.App. Oct. 25, 2001) (mem.decision). The court remanded the case for a new trial.

II.
A.

¶ 5 In Huerta, a majority of this court held that a defendant's substantial right to peremptory challenges is violated when a trial judge erroneously denies a challenge to a juror for cause, regardless of whether the defendant was actually prejudiced. 175 Ariz. at 266, 855 P.2d at 780. The majority reasoned that in most cases it is impossible for a party to show the effect of the trial judge's error upon the outcome of the trial. Id. It said the only certain thing is "the trial judge's error forces the party correctly challenging a juror for cause to waste a peremptory challenge, giving that party one less peremptory challenge than the other side." Id. Thus, the Huerta majority concluded that "[r]eversal is the only feasible way to vindicate a party's `substantial right' to peremptory challenges." Id. Two justices dissented, contending that reversal should not be required in the absence of a showing of prejudice. Id. at 269, 855 P.2d at 783 (Corcoran, J., dissenting); id. at 271, 855 P.2d at 785 (Martone, J., dissenting).

¶ 6 The question on review is whether we should continue to follow Huerta's automatic reversal rule. We conclude that in light of the Supreme Court's decision in Martinez-Salazar and the decisions of courts in other jurisdictions that overruled their similar automatic reversal rule, Huerta should be overruled. We begin our analysis by examining an earlier decision of the Court that foreshadowed the result reached in Martinez-Salazar.

B.

¶ 7 In Ross v. Oklahoma, the Court held that the Sixth and Fourteenth Amendments do not compel reversal when a state law requires a defendant to use a peremptory challenge to cure a trial court's erroneous denial of a challenge for cause. 487 U.S. 81, 88-89, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). The Oklahoma rule at issue in that case had been interpreted by the Oklahoma courts as requiring that a defendant use his peremptory challenges to cure the trial court's for-cause error. Id. at 89-90, 108 S.Ct. 2273. If the defendant did not exercise a peremptory challenge to remove an erroneously retained juror, the defendant waived the right to argue that reversible error occurred. Id. at 89, 108 S.Ct. 2273. The Court thus concluded Oklahoma intended that the number of peremptory challenges it chose to give a defendant included any peremptory challenges that a defendant might use to cure a trial court's error. Id. at 90-91, 108 S.Ct. 2273. Because the defendant "received all [the peremptory challenges] that Oklahoma law allowed him," no error occurred. Id. at 91, 108 S.Ct. 2273.4

¶ 8 After Ross, most jurisdictions that considered the issue either rejected the automatic reversal rule or reaffirmed their jurisdiction's prior opinions that the curative use of a peremptory challenge was not reversible error, absent prejudice to the defendant. See, e.g., Pickens v. State, 301 Ark. 244, 783 S.W.2d 341, 345 (1990)

; Dawson v. State, 581 A.2d 1078, 1093-94 (Del.1990),

vacated on other grounds by Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992); Trotter v. State, 576 So.2d 691, 693 (Fla.1990); State v. Graham, 70 Haw. 627, 780 P.2d 1103, 1108 n. 3 (1989); People v. Gleash, 209 Ill.App.3d 598, 154 Ill.Dec. 348, 568 N.E.2d 348, 353 (1991); Vaughn v. State, 559 N.E.2d 610, 614 (Ind.1990); State v. Neuendorf, 509 N.W.2d 743, 747 (Iowa 1993); Williams v. Commonwealth, 829 S.W.2d 942, 943 (Ky.Ct.App.1992); Hunt v. State, 321 Md. 387, 583 A.2d 218, 233 (1990); Mettetal v. State, 602 So.2d 864, 869 (Miss.1992); State v. DiFrisco, 137 N.J. 434, 645 A.2d 734, 751-53 (1994); State v. Tranby, 437 N.W.2d 817, 824 (N.D.1989); State v. Broom, 40 Ohio St.3d 277, 533 N.E.2d 682, 695 (1988); State v. Green, 301 S.C. 347, 392 S.E.2d 157, 160 (1990); State v. Middlebrooks, 840 S.W.2d 317, 329 (Tenn.1992); State v. Menzies, 889 P.2d 393, 398 (Utah 1994); State v. Traylor, 170 Wis.2d 393, 489 N.W.2d 626, 629 (Wis.Ct. App.1992).

¶ 9 The Huerta majority, however, concluded that Ross was not controlling because "[o]ur earlier cases ... are not bottomed on federal constitutional law, but upon state procedural law, which is established by a long line of Arizona authority." 175 Ariz. at 265, 855 P.2d at 779. In examining our prior cases, the court stated, "Arizona courts have long held that a litigant who is denied the full use of the allotted peremptory challenges is denied a substantial right, which requires reversal, even absent an independent showing of prejudice." Id. at 263, 855 P.2d at 777.

C.

¶ 10 In 2000, the Supreme Court in Martinez-Salazar, in examining Federal Rule of Criminal Procedure 24(b), held that an erroneous denial by the district court of a challenge for cause of a juror, followed by the defendant's use of a peremptory challenge to remove that juror, does not deprive the defendant of any "rule-based or constitutional right" if the defendant is subsequently convicted by an impartial jury. 528 U.S. at 307, 120 S.Ct. 774. Specifically, the Court held the following:

We ... hold that a defendant's exercise of peremptory challenges ... is not denied or impaired when the defendant chooses to use a peremptory challenge to remove a juror who should have been excused for cause. Martinez-Salazar and his co-defendant were accorded 11 peremptory challenges, the exact number ... allowed.

Id. at 317, 120 S.Ct. 774.

¶ 11 The Court acknowledged the important role peremptory challenges play in "reinforcing a defendant's right to trial by an impartial jury." Id. at 311, 120 S.Ct. 774. However, the Court pointed out that "such challenges are auxiliary; unlike the right to an impartial jury guaranteed by the Sixth Amendment, peremptory challenges are not of federal constitutional dimension." Id. (citing Ross, 487 U.S. at 88, 108 S.Ct. 2273; Stilson v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 63 L.Ed. 1154 (1919)). Thus, a defendant's exercise of a peremptory challenge to cure a trial court's error in denying a challenge for cause, without more, does not violate the constitutional right to an impartial jury. Id. at 313, 120 S.Ct. 774.

¶ 12 The Court, however, rejected the Government's argument that the federal rule should be construed to require that a defendant use a peremptory challenge to remove a juror the trial court should have struck for cause "to preserve the claim that the for-cause ruling impaired the defendant's right to a fair trial." Id. at 314, 120 S.Ct. 774. Instead, the Court concluded that "Martinez-Salazar had the option of letting [the venireperson] sit on the petit jury and, upon conviction, pursuing a Sixth Amendment challenge on appeal." Id. at 315, 120 S.Ct. 774. Martinez-Salazar made a strategic choice when he elected to remove the juror. Id. Martinez-Salazar's due process rights were not violated, because, in the Court's view, "[a] hard choice is not the same as no choice." Id.

¶ 13 In a concurring opinion, Justice Scalia, joined by Justice Kennedy, expressed reservations about the majority's conclusion that Martinez-Salazar could have opted to leave the challenged juror on the jury, and upon conviction, pursue a Sixth Amendment challenge on appeal. Id. at 318-19, 120 S.Ct. 774. He questioned whether the "normal principles of waiver" would not "disable a...

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