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State v. Huerta6/24/1993
ical prejudice is not enough to justify a new trial. A reversal should not result from error in the trial court that neither advantages the prosecution nor prejudices the defendant.
IV. Caveats
A caveat for trial Judges: The trial Judge was wrong in failing to grant the challenge for cause -- flat wrong. There was no justification to deny the challenge to the venire juror. Trial Judges should rule on challenges for cause so that all members of the venire panel are fair and impartial before the parties exercise their peremptory strikes.
Caveat for prosecutors: The trial Judge was wrong -- so was the prosecutor. The prosecutor should have joined in the defendant's challenge to the venire juror or stipulated to the juror's discharge. A prosecutor must not only assert the rights of the state, but protect the rights of the defendant when the defendant is being dealt with unfairly by the court. A prosecutor is not a mere adornment in the courtroom who can stand by deaf and dumb while the trial Judge is committing error. If the trial Judge persists in error after being advised by the prosecutor, the prosecutor should strike the juror with a peremptory challenge and state that on the record. If the prosecutor had done that here, the convictions would not be reversed.
V. Conclusion
I believe this court should affirm defendant's convictions, reaffirm Encinas, adopt
the court of appeals' opinion, and overrule Wasko and its progeny. We should straighten out the erroneous U-turn taken by this court in 1977.
MARTONE, Justice, Dissenting.
The result achieved by the majority is not supported by our own cases, federal common law, or the rule adopted by most states. The majority's reliance upon the doctrine of stare decisis is misplaced. An analysis of our cases, federal law, and the cases in other states indicates that the Arizona rule is contrary to that stated by the majority, and it ought to be.
We begin with the Arizona rule. As the court notes, ante, at 263, 855 P.2d at 777, the Arizona rule is stated in Encinas v. State, 26 Ariz. 24, 28-29, 221 P. 232, 233 (1923). We there held that an "order overruling challenge for cause must amount to prejudicial error in order to require reversal." As long as a defendant is not forced to take an objectionable juror, there is no prejudice. Id.
The majority claims that the rule of Encinas was expressly rejected by this court in State v. Thompson, 68 Ariz. 386, 206 P.2d 1037 (1949). Ante, at 263, 855 P.2d at 777. On the contrary, State v. Thompson has nothing at all to do with a court's erroneous failure to remove a juror for cause. Instead, the clerk in Thompson erroneously kept on the jury three persons against whom the defendant exercised peremptory challenges. Thus, the defendant went to trial in front of a jury consisting of three persons whom he had struck. This is a far cry from Encinas and the case before this court. In Thompson, we held that " he jury as formed was not a lawful jury" because it was constituted of persons the defendant removed. Id. 68 Ariz. at 393, 206 P.2d at 1041. We also held that "there is no constitutional right to peremptory challenges in this state," id. at 390, 206 P.2d at 1039, and that "a defendant is not entitled to be tried by any particular jury, but merely by one which is fair and impartial." Id. at 391, 206 P.2d at 1040. It is clear, therefore, that Thompson is a d
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