State v. Dickson

THE STATE OF ARIZONA, Appellee, v. ALBERT RAY DICKSON, Appellant.

No. 2 CA-CR 2018-0267

ARIZONA COURT OF APPEALS DIVISION TWO

March 31, 2020

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).

Appeal from the Superior Court in Pima County

No. CR20160985001

The Honorable James E. Marner, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel

By Michelle L. Hogan, Assistant Attorney General, Phoenix

Counsel for Appellee

Joel Feinman, Pima County Public Defender

By Sarah Mayhew, Assistant Public Defender, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.

EPPICH, Presiding Judge:

¶1 Albert Dickson appeals from his conviction for sexual abuse, contending the trial court erred by (1) improperly retaining one juror and dismissing another during trial; (2) denying motions for disclosure and precluding evidence aimed at showing that the victim had a motive to lie; (3) failing to provide a jury instruction regarding the use of the term "victim" at trial; and (4) admitting prejudicial evidence that Dickson drank alcohol. We affirm.

Factual and Procedural Background

¶2 J.T., a sixteen-year-old boy, lived with his mother and sister in a home rented from Dickson on Dickson's property. In February 2016, J.T. went to Dickson's home to use Dickson's phone. While there, Dickson invited J.T. to look at some cars in his driveway he was fixing, then induced him to enter an adjacent shed. There, Dickson initiated various sexual acts against J.T.'s will, including rubbing his hand on J.T.'s penis.

¶3 A grand jury indicted Dickson on one count of sexual abuse, and after a three-day trial, a jury found him guilty of that offense. The court suspended imposition of sentence and placed Dickson on ten years' probation. Dickson timely appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Dismissal and Retention of Jurors

¶4 At the beginning of day two of the trial, the court informed the parties that a juror had asked to be excused because her husband, who provided security at a public school, was not being paid at that time, and she wanted to return to her job. The court stated it assumed she was being paid for her time on jury duty and the bailiff had instructed her to continue serving. Dickson did not object to the court's decision.

¶5 Dickson then informed the court he had learned that a different juror knew Dickson's daughter, a potential defense witness, and had been an acquaintance of Dickson himself in the distant past. The juroradmitted he and Dickson's daughter had been close friends in junior high school and kept in touch during high school, but they now only interacted occasionally through social media and at infrequent school reunions. He now recognized her in the courtroom but had not made the connection before because he knew her by her maiden name. He denied ever knowing Dickson himself, however, and said he knew nothing of the Dicksons' family situation other than the daughter's mom had recently been ill, a fact he had seen on social media. He indicated he could be fair and impartial despite the past friendship.

¶6 The state requested that the juror be designated the alternate and removed from the panel based on his relationship with Dickson's daughter, and suggested it might have used a peremptory strike on the juror had the relationship been disclosed during voir dire. After Dickson argued that the juror should be retained based on his limited insight into the Dickson family and assurance that he could be fair and impartial, the court decided to designate the juror as the alternate and dismiss him, concluding that despite the juror's assurances that he could be fair and impartial, it would be "problematic" if the daughter were to testify, given the longstanding friendship with her. Dickson reminded the court of the juror with the claimed financial hardship to "reinforce" his objection to removing Dickson's daughter's friend, pointing out that there had already been a problematic juror and he did not want "any problems later" with not having enough jurors. The court was not persuaded and dismissed the juror.

¶7 After the jury found Dickson guilty, he argued in his motion for new trial that the court had erred in failing to remove the juror with the hardship, contending he had no opportunity to question her about her ability to be fair and impartial, and her forced service despite the hardship may have tainted the jury. He also argued that the court had erred by designating the dismissed juror as the alternate and dismissing him, contending that the alternate was to be chosen by the clerk, and dismissing the alternate forced all the others to stay, including the juror with the hardship.

¶8 The court denied the motion, finding that the dismissed juror could not be entirely fair and impartial given his connections to the Dickson family, and noting that Dickson had not asked to voir dire the juror with the hardship after the juror had complained. Designating the dismissed juror as the alternate was merely "semantics," according to the court, because it had immediately dismissed him.

¶9 On appeal, Dickson contends the trial court erred both in dismissing the juror who knew his daughter and retaining the juror with the hardship, who he suggests may not have rendered a fair and impartial verdict. The court must excuse a juror "if there is a reasonable ground to believe that the juror . . . cannot render a fair and impartial verdict." Ariz. R. Crim. P. 18.4(b). "Determining whether there are reasonable grounds to believe that a juror cannot render a fair and impartial verdict is within the discretion of the trial judge." State v. Cook, 170 Ariz. 40, 54 (1991). We therefore generally review a court's decision whether to excuse a juror for cause for abuse of discretion. See id. But if a party fails to object to a juror for cause, we review for fundamental error only. See State v. Cruz, 218 Ariz. 149, ¶ 31 (2008).

¶10 Dickson asserts the court did not address his objection at trial to retaining the juror with the hardship, but he raised no objection to that juror until his motion for new trial. At trial, he merely mentioned that juror to "reinforce" his objection to dismissing the other juror, expressing concern that too few jurors might remain after "later" problems. We therefore review the court's decision to retain the juror for, again, fundamental error only. See Cruz, 218 Ariz. 149, ¶ 31; State v. Juarez-Orci, 236 Ariz. 520, ¶ 11 (App. 2015) (fundamental error review only for untimely objection first raised in motion for new trial).

¶11 To show fundamental error, the defendant must first show that "trial error exists." State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). Dickson does not clear this initial hurdle. Nothing in the record suggests that the juror's hardship from missing work for the three-day trial went beyond the ordinary inconvenience that most jurors endure, and are expected to endure, so that our system of jury trials can function. See A.R.S. § 21-202(B)(4) (only "undue or extreme . . . financial hardship" entitles juror to be excused from service); Perkins v. Komarnyckyj, 172 Ariz. 115, 120 (1992) (acknowledging that most jurors experience "considerable inconvenience"). And, although the juror expressed a desire to be excused for her hardship, this did not require the court to excuse her. See, e.g., State v. Clayton, 109 Ariz. 587, 592-93 (1973) (no error in retaining juror who claimed hardship). Finally, Dickson does not identify anything in the record indicating that the juror did not serve appropriately after not being excused. No error, fundamental or otherwise, occurred here.

¶12 Nor did the trial court err in dismissing the juror who knew Dickson's daughter. As previously noted, under Rule 18.4(b), the court must dismiss a juror if there is a reasonable ground to believe the juror cannot be fair and impartial. The court had discretion to make thatdetermination, see Cook, 170 Ariz. at 54, and there were reasons to doubt the juror's ability to be impartial—he had a longstanding friendship with Dickson's daughter, the daughter was a potential witness, and the juror had some recent knowledge of the family's affairs through social media. The cases Dickson cites merely establish that a court may allow jurors to serve despite analogous relationships in some circumstances. See State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 32 (2018) ("[A] juror who knows some of the people involved in a case is not automatically barred from serving on a jury."); Cruz, 218 Ariz. 149, ¶¶ 30-33 (no error where court retained juror married to a former police officer); State v. Hill, 174 Ariz. 313, 319-21 (1993) (no error where court retained juror who knew prosecutor, investigator, and coroner involved in case). These cases do not establish that the court must allow such jurors to remain when it determines that the relationship will interfere with the juror's fairness and impartiality. Indeed, the court must remove such a juror. See Ariz. R. Crim. P. 18.4(b); A.R.S. § 21-211(4) (juror disqualified if "biased or prejudiced in favor of or against either of the parties").

¶13 Finally, Dickson argues that the trial court "effectively granted the State an extra peremptory strike midtrial," because the prosecutor did not definitively state she would have sought to strike the juror for cause or would have used one of her peremptory strikes to dismiss the juror had she known of the friendship with the daughter. Regardless of what the state would have done, however, the court had discretion to dismiss the juror for the reason it stated. See Ariz. R. Crim. P. 18.4(b) (court may dismiss juror for cause "on its own").

Evidence of Motive to Lie

Disclosure

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