State v. Colorado

256 Ariz. 97

535 P.3d 941

STATE of Arizona, Appellee,

v.Justin COLORADO, Appellant.

No. 1 CA-CR 22-0290

Court of Appeals of Arizona, Division 1.

Filed August 17, 2023

Arizona Attorney General's Office, Phoenix, By Brian R. Coffman, Counsel for Appellee

Coconino County Legal Defender's Office, Flagstaff, By Joseph Adam Carver, Counsel for Appellant

Judge Andrew M. Jacobs delivered the opinion of the Court, in which Chief Judge David B. Gass and Judge Brian Y. Furuya joined.

JACOBS, Judge:

¶1 The Arizona Supreme Court abolished the use of peremptory strikes in jury selection effective January 1, 2022. As a result, parties must now rely solely upon strikes for cause in voir dire.

¶2 This appeal asks us to decide whether, in light of the 2022 amendments, we should apply the traditional abuse-of-discretion standard to a trial court's decision on a motion to strike a juror for cause, or whether we should apply a de novo standard. We disagree that the 2022 amendments suggest any modification of the traditional standard, and see no error in the trial court's application of it. We thus affirm the trial court's denial of appellant Justin Colorado's motion to strike potential juror number eight (Juror #8) for cause and Colorado's conviction for first-degree murder.

FACTS AND PROCEDURAL BACKGROUND

¶3 In July 2020, the State charged Colorado with one count of first-degree murder, a domestic violence offense, alleging he shot and killed his girlfriend in Flagstaff the previous month. Before trial began in May 2022, Colorado filed a motion seeking permission to exercise peremptory strikes despite their abolition on January 1, 2022. See Ariz. Sup. Ct. Order No. R-21-0020 (Aug. 30, 2021) (amending Arizona Rules of Criminal Procedure 18.4 and 18.5 ). The court denied his motion.

¶4 The court, with the parties’ input, then prepared case-specific questionnaires for potential jurors to complete and return before trial. See Ariz. R. Crim. P. 16.3(c), (d)(4), 18.5(c). The urging to use case-specific written questionnaires became part of the Arizona Rules of Criminal Procedure at the time of the 2022 amendments, as part of a unified scheme of changes. See Ariz. R. Crim. P. 18.5(c) cmt. to 2022 amend.; Statewide Jury Selection Workgroup, Arizona Supreme Court Task Force on Jury Data Collection, Practices, and Procedures, Report and Recommendations, at 3 (2021)¹ (recognizing that case-specific questionnaires "will secure better quality information for the exercise of for-cause strikes"). The questionnaires here served their intended purpose by providing in-depth information for the parties and the court to use in analyzing whether to excuse potential jurors. Based on the questionnaire responses, the parties agreed to dismiss 159 potential jurors for cause or hardship, and the trial court granted the State's motion to strike one other for cause and denied Colorado's for-cause motion to strike another.

¶5 After that questionnaire-driven screening, 21 potential jurors—including Juror #8—appeared for additional voir dire. After the court followed up with the jurors regarding their availability for trial, the parties stipulated to remove four potential jurors for cause. The court then allowed counsel to continue voir dire directly with those who remained.

¶6 Juror #8 indicated on her questionnaire that the domestic violence alleged in this case and her previous work experience as a nurse at the Coconino County Sheriff's Office could make it difficult to serve as juror. Upon further questioning by the prosecutor, Juror #8 explained a trial was pending regarding an incident in which an acquaintance of hers was allegedly killed by a former boyfriend a year earlier in Flagstaff. When asked whether that experience "would be an issue" in being fair and impartial, Juror #8 responded, "I don't think so. ... Not that I can tell."

Defense counsel asked Juror #8 about her work experience at the Sheriff's Office, and she explained it would not affect her ability to serve as a juror in this case. Defense counsel then moved to strike Juror #8 for cause. The trial court denied the motion "at this time" subject to counsel's further questioning of Juror #8.

¶7 The court and counsel continued questioning Juror #8 outside the presence of other jurors. There, she provided more details about her relationship with the domestic violence victim in the other pending trial, and she indicated her concern for the victim's child in that case would "probably [make it] hard" to serve as a juror in this case "if there were children involved." Regarding her prior work experience at the Sheriff's Office, Juror #8 said she could be fair and impartial because she "no longer work[s] there," and she did not recognize any names of former co-workers on the witness list.

¶8 After questioning ended, defense counsel renewed the motion to strike, to which the prosecutor objected. Before ruling, the trial court asked whether the victim in this case had children. Both counsel affirmed that she did not. "Well, with that said," the court responded, "[Juror #8] was quite clear that she believes she can be fair and impartial. I don't see anything [in] her demeanor or attitude or anything else that could be interpreted as other than that, being a truthful statement ...." The court denied the renewed motion to strike. Juror #8 served on the jury.

¶9 The only disputed issue of fact at trial was whether Colorado acted with premeditation when he shot and killed the victim. See A.R.S. § 13-1105(A)(1) ("A person commits first degree murder if ... [i]ntending or knowing that the person's conduct will cause death, the person causes the death of another person ... with premeditation ...."). The jury deliberated and returned a guilty verdict on the first-degree charge, finding it was a domestic violence offense. At sentencing, the court imposed a mandatory natural life prison term. Colorado timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

DISCUSSION

I. Colorado's Argument that the Standard of Review for For-Cause Strikes Should Change is Unpersuasive.

A. Since 1864, Arizona Appellate Courts Have Deferred to Trial Court Assessments of Whether Potential Jurors Can Fairly Sit in Judgment, Because That Question Is Fact-Intensive.

¶10 Colorado frames his challenge to the denial of his motion to strike Juror #8 for cause as an issue of standards of review. He asks whether Arizona law should continue to apply abuse-of-discretion as the standard for reviewing the propriety of strikes for cause. See State v. Allen , 253 Ariz. 306, 307 ¶¶ 41, 47, 513 P.3d 282, 331 (2022) (applying abuse-of-discretion standard). He urges us to apply instead a de novo standard that accords no such deference, and is typically used to review a trial court's rulings on matters of law or mixed questions of fact and law. See State v. Mendoza-Ruiz , 225 Ariz. 473, 475 ¶ 6, 240 P.3d 1235, 1237 (App. 2010) ("[W]e review the superior court's legal decisions de novo.").

¶11 Colorado argues Juror #8's answers to certain questions make it objectively clear she was unable to judge his case without bias. While doing so, he likewise advocates for a new, assertedly more objective standard that he argues would not unduly defer to a juror's subjective assertions that they lack disqualifying biases.

¶12 Colorado emphasizes, accurately, that Arizona case law often discusses whether to exclude a juror with reference to the juror's assurances of impartiality. He then argues that an exclusively for-cause system of strikes is poorly served by caselaw relying (heavily, he claims) on juror assurances of impartiality, concluding that trial courts now lack "articulable legal standards" to guide their rulings on motions to strike for cause. For this reason, he argues Arizona courts should henceforth review such strikes de novo .

¶13 We reject Colorado's argument in part because it disregards 160 years of Arizona legal history commending to the trial court—not jurors themselves—the duty and authority to assess and address juror bias. That the trial court must excuse any juror who cannot act with impartiality has been part of Arizona law since the Howell Code's enactment in 1864. See e.g. , Howell Code, ch. XI, §§ 319, 322 (1864)² ; see Rev. Stat. Ariz. Territory, Penal Code §§ 910(13), 915 (1901); see also Leigh v. Territory , 10 Ariz. 129, 133, 85 P. 948 (1906) ("[I]t is ... for the court to determine whether or not [the] knowledge or information [a juror has about the case] has in fact brought about in the juror a state of mind which will prevent him from acting with entire impartiality."); Brady v. Territory , 7 Ariz. 12, 19, 60 P. 698 (1900) ("The challenge [for cause] raised an issue of fact upon which the court had to determine whether the nature and strength of the opinion formed [by the juror] was such as would prevent the juror from acting with entire impartiality," and "[t]he finding of the trial court upon that issue should not be set aside by the appellate court unless the error is manifest."); Ariz. Code §§ 44-1313(j), -1314 (1939); Ariz. Rev. Code §§ 5035(13), 5036 (1928); Rev. Stat. Ariz., Penal Code §§ 1023(13), 1024–25 (1913); see State v. Johnson , 247 Ariz. 166, 197–99 ¶¶ 113–21, 447 P.3d 783, 814–16 (2019) ; State v. Tison , 129 Ariz. 526, 533, 633 P.2d 335, 342 (1981) ; State v. Evans , 120 Ariz. 158, 160, 584 P.2d 1149, 1151 (1978) ; State v. Narten , 99 Ariz. 116, 121–22 n.1, 407 P.2d 81 (1965) ; Burnett v. State , 34 Ariz. 129, 135-36, 268 P. 611 (1928) ; see also Ariz. R. Crim. P. 219–20 (1956); Ariz. R. Crim. P. 18.4(b) 2018 cmt. (noting that the contemporary description for the standard first appeared in the 1973 Rules).

¶14 The current procedural rule governing challenges for cause is Arizona Rule of Criminal Procedure 18.4(b), which provides in relevant part that: "The court, on motion or on its own, must excuse a prospective juror or jurors...