State v. Cisneros, 1 CA-CR 17-0182

STATE OF ARIZONA, Appellee, v. JESSE RICHARD CISNEROS, Appellant.

No. 1 CA-CR 17-0182

ARIZONA COURT OF APPEALS DIVISION ONE

June 18, 2019

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

No. CR 2015-138997-001

The Honorable Christine E. Mulleneaux, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Michelle L. Hogan

Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix

By Paul J. Prato

Counsel for Appellant

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which Judge Kent E. Cattani joined. Presiding Judge Jennifer B. Campbell specially concurred.

McMURDIE, Judge:

¶1 Jesse Richard Cisneros appeals his convictions of aggravated assault and possession or use of marijuana and the resulting sentences. Cisneros argues that the superior court committed structural error by denying his motion to strike prospective juror number 48 ("Juror 48") for cause, causing the jury to be tainted by a biased juror. For the following reasons, we affirm Cisneros's convictions and sentences.

FACTS AND PROCEDURAL BACKGROUND

¶2 Cisneros was charged with several counts related to an aggravated assault involving a weapon and the subsequent discovery of marijuana in his car. During voir dire, Cisneros's counsel asked the following questions related to whether a juror would want to hear "both sides of a story":

A defendant doesn't have to offer any witnesses. They don't have to offer any exhibits. That's what the law is.

Does anybody, when you think about that, think about, you know, in your everyday life you want to hear both sides of the story, maybe. You think about if you're accused of something, you'd want to tell your side.

That being, maybe being, the case, is there anybody who, when you honestly think about it, would have a hard time in this case if the defense didn't present any evidence? Is there anybody who would want to hear both sides?

¶3 After discussion with other jurors on these questions, Juror 48 raised his juror card. The following exchange between Cisneros's counsel and Juror 48 occurred:

[Cisneros's counsel]: 48, what can you tell me about your concern as far as both sides of the story?

[Juror 48]: . . . [I]f the State presented a compelling argument and the defense side did not defend themselves, it would lead me to believe that the defense was guilty.

[Cisneros's counsel]: Even if the Court instructed you that that wasn't the way the law works, that's not how the law operates as far as a defendant, would you still have those feelings a little bit?

[Juror 48]: Right. If the State couldn't present a compelling argument, then that would probably be okay for me, if they didn't actually present a statement.

* * *

[Juror 48]: If [the State] did not present a compelling argument of guilt, then I would probably understand why the defendant would not want to speak up. But if the State did present evidence of a crime, I would think that they would want to defend themselves.

[Cisneros's counsel]: Okay. So specifically if the State did present some evidence that a crime occurred and the defense offered no evidence, you'd have a problem? You'd hold that against the defendant?

[Juror 48]: Yes.

¶4 Once questioning ended, the court suggested a list of prospective jurors to be stricken for cause, including Juror 48. The State objected to striking Juror 48, stating:

What I understood him saying is that if the State proves its case beyond a reasonable doubt, he would convict. If the defense didn't present any evidence, then he would need to convict because that's what the law requires. He would want to hear from the defense, if the State had proven its case, for contrary testimony. But he said that if the State had proven its case, he would hold them to that burden. So I don't think there's anything contrary to what the law says on that juror.

Cisneros's counsel argued that the line of questioning centered on Juror 48's belief that an innocent defendant would present evidence to rebut the State's case. He explained that rather than applying a reasonable doubt standard, Juror 48 would look for "compelling" evidence—a standard that perhaps fell below reasonable doubt. The court denied Cisneros's motion to strike Juror 48.

¶5 After the court struck other prospective jurors for cause, both the prosecution and defense were given six peremptory strikes. Neither side struck Juror 48, and he served on the jury. At trial, the State presented several witnesses in support of its case. Cisneros called only one witness, an investigator employed by Cisneros's counsel. Cisneros did not testify and was only present for two out of the five days of trial.

¶6 The court read final instructions to the jury before it began deliberations. The instructions repeated the presumption of innocence and charged the jury to disregard Cisneros's failure to testify or any failure to supply evidence while considering its finding of guilt or innocence. The court charged the jury to comply with its instructions.

¶7 After deliberation, the jury found Cisneros guilty of aggravated assault and possession or use of marijuana. The defense polled the jury, and each juror confirmed the verdicts. Cisneros timely appealed, and we have jurisdiction under Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶8 Cisneros argues that the superior court abused its discretion by denying his motion to strike Juror 48 for cause because the juror's voir dire answers revealed a bias against a non-testifying defendant. Cisneros's argument fails, however, because neither Juror 48 nor any of the other prospective jurors expressed disagreement with an express statement during voir dire that "a defendant in a criminal case has a right not to testify" and that "[t]he exercise of that right cannot be considered by the jury in determining guilt or innocence." Juror 48's subsequent comments that Cisneros challenges on appeal did not expressly state a bias against a non-testifying defendant, and neither the prosecutor nor defense counsel interpreted Juror 48's comments to be directed at whether a defendant chose not to testify. Under the circumstances presented, the superior court reasonably interpreted Juror 48's comments to relate to the need for a defendant to provide some type of rebuttal evidence if the State presents a compelling case against the defendant. The court did not err by acceptingthe parties' interpretation of Juror 48's comments and by concluding that Cisneros did not establish a basis for striking Juror 48 for cause.

¶9 Arizona law provides that cause to excuse a prospective juror exists "[w]hen there is reasonable ground to believe that a juror cannot render a fair and impartial verdict." Ariz. R. Crim. P. 18.4(b) (2016). "The party challenging the juror bears the burden of establishing that the juror could not be fair and impartial." State v. Hoskins, 199 Ariz. 127, 139, ¶ 37, (2000), supplemented on other grounds, 204 Ariz. 572 (2003); State v. Trostle, 191 Ariz. 4, 13 (1997). In assessing a potential juror's fairness and impartiality, the superior court has the best opportunity to observe prospective jurors and thereby judge the credibility of each. See State v. Lavers, 168 Ariz. 376, 390 (1991); State v. Pawley, 123 Ariz. 387, 389 (App. 1979). For that reason, "we will not set aside the trial court's ruling on a challenge to a juror absent a clear showing that the court abused its discretion." Lavers, 168 Ariz. at 390.

¶10 "Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula." United States v. Wood, 299 U.S. 123, 145-46 (1936). The United States Supreme Court has held that jury selection is "particularly within the province of the trial judge." Ristaino v. Ross, 424 U.S. 589, 595 (1976) (quoting Rideau v. Louisiana, 373 U.S. 723, 733 (1963) (Clark, J., dissenting)). "Reviewing courts are properly resistant to second-guessing the trial judge's estimation of a juror's impartiality, for that judge's appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record—among them, the prospective juror's inflection, sincerity, demeanor, candor, body language, and apprehension of duty." Skilling v. United States, 561 U.S. 358, 386 (2010) (emphasis added). A court's rulings on for-cause challenges also reflect a recognition that juror testimony on voir dire may be "ambiguous and at times contradictory." Patton v. Yount, 467 U.S. 1025, 1039 (1984). "[T]he lay persons on the panel may never have been subjected to the type of leading questions and cross-examination tactics that frequently are employed," and therefore, they "cannot be expected invariably to express themselves carefully or even consistently." Id. Thus, provided "the juror ultimately assures the court that he or she can be fair and impartial, the juror need not be excused." State v. Purcell, 199 Ariz. 319, 323, ¶ 8 (App. 2001); see also State v. Payne, 233 Ariz. 484, 499, ¶ 23 (2013).

¶11 The superior court did not abuse its discretion by declining to strike Juror 48 for cause. Juror 48's statement that he "would probablyunderstand why the defendant would not want to speak up" if the State did not present a "compelling argument of guilt" can be reasonably construed as focusing on the strength of the State's case, and whether—as the juror further noted—the defendant "would want to defend themselves" should the State present compelling evidence of guilt. Whether a defendant wants to defend himself does not necessarily implicate a requirement that a defendant testify. Juror 48's acknowledgment that he would be willing to acquit the defendant if...