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State v. Huerta6/24/1993
FACTS
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 " 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 " 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. 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.
ISSUE PRESENTED
Whether reversal is required when a trial Judge erroneously denies a challenge to a juror for cause.
Discussion
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
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