State v. Jimenez

255 Ariz. 550

534 P.3d 516

The STATE of Arizona, Appellee,

v.Jose Luis JIMENEZ, Appellant.

No. 2 CA-CR 2022-0062

Court of Appeals of Arizona, Division 2.

Filed July 13, 2023

Kristin K. Mayes, Arizona Attorney General, Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals, Phoenix, Counsel for Appellee

Megan Page, Pima County Public Defender, By Erin K. Sutherland, Assistant Public Defender, Tucson, Counsel for Appellant

Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.

ECKERSTROM, Judge:

¶1 Defendant Jose Jimenez appeals from his conviction and sentence for continuous sexual abuse of a minor. Jimenez argues the trial court committed structural error by refusing to strike a "biased juror" for cause. He also maintains the court committed reversible error when it precluded a defense expert from testifying as to Jimenez's sexual normalcy unless he also submitted to a psychosexual evaluation by a state expert, thereby forcing Jimenez to choose between presenting a complete defense or giving up his constitutional privilege against self-incrimination. For the reasons that follow, we affirm.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to affirming the conviction. See State v. Payne , 233 Ariz. 484, n.1, 314 P.3d 1239 (2013). At trial, the state presented evidence that, repeatedly over the course of about eighteen months, Jimenez had sexually abused his niece, P.B., who was nine years old when the abuse began. After P.B.’s parents learned of the abuse and reported it to police, Jimenez was charged with one count of continuous sexual abuse of a child. After a six-day trial, the jury found Jimenez guilty. The trial court sentenced him to thirteen years’ imprisonment. This timely appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Juror Number 8

¶3 Jimenez first argues the trial court committed structural error by not striking for cause Juror 8, a retired Federal Bureau of Investigation (FBI) agent with experience surveilling suspected "pedophiles." During voir dire, Juror 8 stated that for the final third of his FBI career, he had run a surveillance team "assigned to surveil" suspected pedophiles as they interacted with children. Although Jimenez moved to strike Juror 8 for cause, the court denied the motion, finding credible the juror's indication that he "could be fair and impartial." On appeal, Jimenez maintains that Juror 8's training and experience rendered him "clearly biased," as evidenced by his responses to questioning during jury selection. As the party asserting error, Jimenez bears the burden of establishing Juror 8 was "incapable of rendering a fair and impartial verdict." State v. Acuna Valenzuela , 245 Ariz. 197, ¶ 21, 426 P.3d 1176 (2018) (quoting State v. Lavers , 168 Ariz. 376, 390, 814 P.2d 333, 347 (1991) ).

¶4 The due process right to a jury composed of unbiased, impartial jurors is protected by the United States and Arizona constitutions, as well as by Arizona statute and procedural rule. U.S. Const. amends. VI & XIV, § 1 ; Ariz. Const. art. II, § 24 ; A.R.S. § 21-211 ; Ariz. R. Crim. P. 18.4(b) ; see also Morgan v. Illinois , 504 U.S. 719, 726, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (guarantee of trial by impartial jury guaranteed independently by Sixth Amendment and by Fourteenth Amendment's due process clause). A trial court must excuse prospective jurors for cause "if there is a reasonable ground to believe" they "cannot render a fair and impartial verdict," Ariz. R. Crim. P. 18.4(b), including if they are "biased or prejudiced in favor of or against either of the parties," § 21-211(4).

¶5 "In assessing a potential juror's fairness and impartiality, the trial court has the best opportunity to observe prospective jurors and thereby judge the credibility of each." State v. Hoskins , 199 Ariz. 127, ¶ 37, 14 P.3d 997 (2000). Trial courts thus "retain broad discretion" to determine whether there are reasonable grounds to doubt that a venireperson will be able to serve as a fair and impartial juror. State v. Eddington (Eddington I) , 226 Ariz. 72, ¶ 17, 244 P.3d 76 (App. 2010). We will not set aside a trial court's ruling absent a showing that the court abused that discretion. Hoskins , 199 Ariz. 127, ¶ 37, 14 P.3d 997 ; see also Acuna Valenzuela , 245 Ariz. 197, ¶¶ 20-21, 426 P.3d 1176.

¶6 Effective January 1, 2022, our supreme court amended the Arizona Rules of Criminal Procedure to make Arizona the first jurisdiction in the nation to eliminate peremptory strikes in all criminal trials. Ariz. Sup. Ct. Order R-21-0020 (Aug. 30, 2021). Voir dire in the present case occurred nine days later. This substantial change eliminates the power of criminal defendants and prosecutors to strike venirepersons, including those whom they suspect might be biased. As our supreme court has acknowledged, the peremptory strike system played an important "auxiliary" role in assuring a fair and impartial jury in those cases when a trial court may have erred in failing to strike a venireperson for cause. State v. Hickman , 205 Ariz. 192, ¶¶ 1, 31, 40, 68 P.3d 418 (2003). Under the amendment, our trial courts exclusively determine the final composition of juries in criminal cases.

¶7 The fairness and impartiality of juries "goes to the very integrity of the legal system." Gray v. Mississippi , 481 U.S. 648, 668, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987). Given these stakes, we address the approach our jurisprudence has counseled and the tools our trial judges possess to ensure an impartial jury. As noted by our supreme court, under certain circumstances, "[t]he potential for an appearance of bias suffice[s] to require disqualification regardless of any juror-specific finding of actual bias." State v. Eddington (Eddington II) , 228 Ariz. 361, ¶ 10, 266 P.3d 1057 (2011), aff'g 226 Ariz. 72, 244 P.3d 76 (App. 2010). This is so, in part, because "protecting the appearance of fairness ... helps instill public confidence in the judicial system." Id. ¶ 8.

¶8 In determining whether there is a reasonable ground to believe that a venireperson might be unable to render a fair and impartial verdict, our trial courts retain broad discretion to excuse or retain potential jurors who have been challenged for cause. See Eddington I , 226 Ariz. 72, ¶ 17, 244 P.3d 76. They may excuse potential jurors on their own motions. See Ariz. R. Crim. P. 18.4(b). And, they have the authority to conduct voir dire of a venireperson and allow the parties to follow up with voir dire of their own. After that process, the court need not accept the subjective beliefs of challenged venirepersons regarding their ability to remain unbiased. See Eddington I , 226 Ariz. 72, ¶ 17, 244 P.3d 76. Rather, our trial courts may determine that any objective factors suggesting bias alone provide reasonable grounds to excuse the potential juror. Id. And, when the decision to excuse or retain a potential juror presents a close question, our courts may trust that other potential venirepersons are ready to serve if that juror is excused. See Hickman , 205 Ariz. 192, ¶ 31, 68 P.3d 418 (acknowledging that such determinations involve "shades of gray" (quoting United States v. Martinez-Salazar , 528 U.S. 304, 316, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) )).

¶9 Here, the trial court was required to grapple with a non-trivial motion to strike a juror for cause. Juror 8 had been a career law enforcement officer. A substantial portion of that career involved investigating cases like the one before the court. That task included acquiring special expertise in assessing the truthfulness of a suspect's claims of innocence—a claimed aptitude especially relevant in the instant case, where Jimenez testified at trial. Based on these facts, the trial court could have reasonably questioned Juror 8's objective ability to be unbiased. And, on that basis, it possessed the broad discretion to excuse him from the panel. See Eddington I , 226 Ariz. 72, ¶ 17, 244 P.3d 76.

¶10 However, based on its first-hand interactions with, and observation of, the challenged juror during extensive voir dire, the trial court found the opposite and properly exercised its equally broad discretion to retain Juror 8. The record supports the court's conclusion that Juror 8 could be fair and impartial. See State v. Hill , 174 Ariz. 313, 319, 321, 848 P.2d 1375 (1993) (finding no abuse of discretion in trial court's refusal to strike police officer for cause).

¶11 In challenging that conclusion, Jimenez identifies two exchanges in particular.¹ First, after Juror 8 described his training and experience in lie detection and suspect interrogation, defense counsel asked him whether he could "evaluate the credibility of a witness without employing those techniques used in an interrogation room." Juror 8 replied, "I won't be saying anything, so yes." Jimenez contends this statement demonstrates Juror 8's inability to evaluate the evidence impartially, particularly because jurors in Arizona may participate in the questioning of the witnesses through the submission of anonymous questions.

¶12 Jimenez also argues Juror 8 demonstrated bias in his response to defense counsel's question of whether Juror 8 believed, at the time of jury selection, that Jimenez was a "pedophile." Juror 8 responded, "I have no idea." Jimenez contends this statement suggests Juror 8 did not presume Jimenez was innocent at the outset of the trial.

¶13 Nothing in the record before us, including the two exchanges Jimenez identifies, compelled the trial court to excuse Juror 8 for cause. "A juror's assurance of impartiality need not be couched in absolute terms." State v. Trostle , 191 Ariz. 4, 13, 951 P.2d 869, 878 (1997) ; see also Hoskins , 199 Ariz. 127, ¶ 37, 14 P.3d 997. And here, Juror 8 repeatedly asserted that he could be fair and impartial. See Acuna Valenzuela , 245 Ariz. 197,...