State v. Huerta, CR-91-0401-PR

CourtSupreme Court of Arizona
Citation855 P.2d 776,175 Ariz. 262
Docket NumberNo. CR-91-0401-PR,CR-91-0401-PR
Parties, 62 USLW 2054 STATE of Arizona, Appellee, v. Federico Lico HUERTA, Appellant.
Decision Date24 June 1993

Page 776

855 P.2d 776
175 Ariz. 262, 62 USLW 2054
STATE of Arizona, Appellee,
Federico Lico HUERTA, Appellant.
No. CR-91-0401-PR.
Supreme Court of Arizona.
June 24, 1993.

Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Appeals Section, R. Wayne Ford, Asst. Atty. Gen., Phoenix, for appellee.

Michael J. Burke, La Paz County Public Defender, Parker, for appellant.


MOELLER, Vice Chief Justice.


Defendant was charged with two counts of child molestation. The two counts involved separate incidents with different victims. During jury selection, the court asked the jury panel whether any of them would automatically feel defendant was guilty simply because a police officer had accused or arrested him. In response, one juror volunteered that, because defendant had been charged with two separate counts involving separate victims, he believed defendant was probably guilty.

On further questioning by the trial judge on whether he could be a fair and impartial juror, the juror responded "[n]ot with two counts being alleged against him by two different victims, sir." When the court asked whether that was the only reason that the juror could not be fair and impartial, the juror responded "[d]epends on what's presented by [the prosecutor] and that. I don't feel that I can."

Defendant challenged the juror for cause. The trial court denied the challenge, and defendant used one of his peremptory challenges to remove the challenged juror. Defendant was convicted on both counts and sentenced to two consecutive seventeen-year terms of imprisonment. On appeal, the court of appeals agreed with defendant that the trial court erred in denying his challenge for cause. See State v. Huerta, 170 Ariz. 584, 586, 826 P.2d 1210, 1212 (App.1991). This finding of error is unchallenged in this court. Notwithstanding the error, the appeals court, applying a harmless error analysis, held that defendant was not entitled to a new trial because he had not shown that a biased juror served on the panel that convicted him. Id. at 587, 826 P.2d at 1213. Therefore, the court of appeals affirmed defendant's convictions and sentences. Id. at 589, 826 P.2d at 1215.

We granted review and have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), A.R.S. § 12-120.24, and Rule 31.19, Ariz.R.Crim.P.

Page 777

[175 Ariz. 263] We conclude, contrary to the court of appeals, that existing Arizona precedent on this point has not been, and should not be, overruled. That precedent requires reversal when a trial judge erroneously fails to excuse a juror for cause.

Whether reversal is required when a trial judge erroneously denies a challenge to a juror for cause.


Arizona provides for peremptory challenges by court rule. For criminal cases, Rule 18.4(c), Ariz.R.Crim.P., states in part:

Both parties shall be allowed the following number of peremptory challenges:

(i) Ten, if the offense charged is punishable by death.

(ii) Six, in all other cases tried in Superior Court.

In enforcing this rule, as well as its civil counterpart, Rule 47(e), Ariz.R.Civ.P., 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 ("the Arizona rule"). See, e.g., Wasko v. Frankel, 116 Ariz. 288, 290, 569 P.2d 230, 232 (1977); State v. Sexton, 163 Ariz. 301, 303, 787 P.2d 1097, 1099 (App.1989).

The court of appeals concluded that the reasoning in the recent Supreme Court case of Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), and Justice Corcoran's special concurrence in our recent case of State v. Comer, 165 Ariz. 413, 431, 799 P.2d 333, 351 (1990), cert. denied, 499 U.S. 943, 111 S.Ct. 1404, 113 L.Ed.2d 460 (1991), eroded support for the Arizona rule. Because the disqualified juror had been removed by the use of one of defendant's peremptory challenges, the court of appeals held there was no reversible error. See Huerta, 170 Ariz. at 585-87, 826 P.2d at 1211-13. The state urges us to reject our earlier cases and adopt the court of appeals' opinion. In light of the court of appeals' opinion and the state's arguments, we conclude that it is appropriate to revisit the history and development of the Arizona rule to determine whether we should continue to follow it.


The history of the Arizona rule is not without some inconsistency. In the early case of Encinas v. State, 26 Ariz. 24, 28-29, 221 P. 232, 233 (1923), we looked to California law to guide us. The California rule was that "the order overruling challenge for cause must amount to prejudicial error in order to require reversal...." Id. at 28, 221 P. at 233 (citing People v. Johnson, 57 Cal.App. 391, 207 P. 281 (1922)). We followed the California rule. Encinas, 26 Ariz. at 28-29, 221 P. at 233. Our holding was based in part on Ariz. Const. art. 6, § 22 (now § 27), which states:

No cause shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done.

Implicit in the Encinas opinion was the proposition that failure to strike a biased juror for cause was "technical error." Encinas, 26 Ariz. at 28-29, 221 P. at 233; see also B.W.L. Sam v. State, 33 Ariz. 383, 399-400, 265 P. 609, 615 (1928) (failing to follow the law in forming the jury panel was "technical error," not requiring reversal in the absence of a showing of other prejudice to the defendant).

However, the Encinas view that depriving a litigant of the full complement of allotted peremptory challenges was mere technical error was later expressly rejected by this court. See State v. Thompson, 68 Ariz. 386, 389-92, 206 P.2d 1037, 1039-40 (1949). In Thompson, a criminal case, the defendant exercised five peremptory challenges, but the clerk failed to remove three of those challenged from the jury panel. Id. at 389, 206 P.2d at 1038-39. The three jurors erroneously left on were part of the panel that heard the case and convicted the defendant. Id. We noted that breaches of the formal rules of jury selection had long been looked upon as mere technical errors

Page 778

[175 Ariz. 264] not requiring reversal in the absence of a separate showing of prejudice. We ruled, however, that

[w]hile it is true that there is no constitutional right to peremptory challenges in this state, it being purely legislative in origin [citation omitted] or granted by rules of criminal procedure having the effect of law [citation omitted], still this is a substantial rather than a mere procedural or technical right and should be fully enforced as an aid in securing an impartial jury.

Id. at 390, 206 P.2d at 1039 (emphasis added).

The Thompson court therefore held, without referring to the earlier Encinas case, that Thompson's conviction must be reversed, even though he had not independently shown that any juror who sat was, in fact, disqualified other than through use of a peremptory challenge. Id. at 390-91, 206 P.2d at 1039-40. 1 After Thompson, the right to peremptory challenges was incorporated into the rules of criminal procedure. See Rule 225, Ariz.R.Crim.P. (1956).

In Wasko v. Frankel, a civil case, we faced the same factual situation we face today. 116 Ariz. at 289-90, 569 P.2d at 231-32. There, a trial judge erroneously denied a motion to strike a biased juror for cause, and the plaintiff was forced to use a peremptory challenge to remove the juror. Id. The court, implicitly overruling Encinas without citing it, followed the Thompson lead and held that

[t]he right of a party to peremptory challenges is a substantial right of which he should not be deprived.... Peremptory challenges form an effective method of assuring the fairness of a jury trial. Hence, forcing a party to use his peremptory challenges to strike jurors who should have been stricken for cause denies the litigant a substantial right.

Id. at 290, 569 P.2d at 232 (citations omitted). Thus, the court reversed the judgment, even though plaintiff had shown no separate prejudice as a result of the trial judge's error. Id.; see also Sexton, 163 Ariz. at 303, 787 P.2d at 1099 (a recent court of appeals case applying Wasko in a criminal case). Existing Arizona precedent therefore clearly provides that when a trial judge erroneously denies a challenge for cause, reversal is required even if the challenging party does not independently show that a biased juror sat on the case.

The state argues, however, that language in two Arizona cases, State v. Chaney and State v. Sexton, undermines the reasoning of Thompson and Wasko. We disagree. In State v. Chaney, 141 Ariz. 295, 303, 686 P.2d 1265, 1273 (1984), the holding was that the trial judge had not abused his discretion in failing to remove a juror for cause. We did state in passing, however, that "Chaney ha[d] not indicated whether there was a petit jury member who he would have excused peremptorily but could not because he had used a peremptory strike to excuse the juror who made the statement." Id. In Sexton, 163 Ariz. at 303, 787 P.2d at 1099, the court of appeals expressly applied the rule of Wasko and Thompson and reversed because the trial court had erroneously denied a challenge for cause. In its discussion of this issue, the court merely included the fact that defense counsel had stated on the record that she would have used the wasted peremptory challenge on another juror if the trial court would have excused the challenged juror. Id. at 302, 787 P.2d at 1098. In our view, neither of the casual statements in Chaney or Sexton call into question the continued validity of the Arizona rule announced in Thompson and Wasko.

Page 779

[175 Ariz. 265] The state and the court of appeals noted, however, that recently, in Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988), the United States...

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