Opinion
No. 1 CA-CR 14-0131
06-02-2015
STATE OF ARIZONA, Appellee, v. MANUEL SALDATE MORENO, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Jeffrey L. Force Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. CR2013-112114-001
The Honorable Daniel J. Kiley, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Patricia A. Orozco and Judge Kent E. Cattani joined.
NORRIS, Judge:
¶1 Manuel Saldate Moreno appeals his convictions and sentences for aggravated robbery, kidnapping, and burglary in the second degree, arguing the superior court abused its discretion by, first, denying his motion to strike the jury panel, allegedly tainted by the comments of a prospective juror during voir dire, and, second, refusing to allow additional voir dire of the jury panel to inquire into the effect of those comments on the panel. We disagree with both arguments and, therefore, affirm Moreno's convictions and sentences.
I. The Superior Court Did Not Abuse Its Discretion in Denying Moreno's Motion to Strike the Jury Panel
¶2 During voir dire, the superior court advised the jury panel that "[t]he testimony of a law enforcement officer is not entitled to any greater or lesser importance or believability merely because of the fact that a witness is a law enforcement officer." After the court asked the panel if they would be unable or unwilling to apply that standard, Prospective Juror 29 indicated he would give more credibility to the testimony of police officers than others. The superior court allowed the State to ask follow-up questions of Prospective Juror 29 before the full panel of prospective jurors. On follow-up, Prospective Juror 29 affirmed he could not give the same weight to the testimony of all witnesses. He explained why:
For 40 years I made my living looking at details and small things and making decisions about probabilities. That's what I do. And I understand that science treats evidence a little bit differently than it's treated in the law. But I just, I'm just starting with some opening observations. I see the officer from Chandler who is here today, he looks like a police officer. He is. That's what he is. That's what he does. I don't know whether or not he was involved with the arrest or was—had any play in the
incident where Mr. Moreno was arrested. But if he was, I'm sure he looked just like that.
And I look over at the defense table and I see that today Mr. Moreno, and I don't know if the guy did anything wrong or not, but I see that he's here and he's, you know, Mr. Moreno is in a lot of trouble, and he's smiling and he's dressed and he's got his tie on and his arms are covered up, and I view that as right out of the blocks a subtle, however subtle, attempt by the defense to sort of paint reality a little bit differently than what it might be. I doubt if Mr. Moreno looked like that on the night of his arrest.
So those are the kinds of things I look at and I notice that now. And I guess what I'm saying to boil it down for you is I would probably view anything they said as possibly slightly crafted for us. So I'm happy to be here. I'm happy to listen and participate through the end, but you need to understand that's how I think.
¶3 Although the superior court struck Prospective Juror 29 for cause, on appeal Moreno asserts these comments tainted the entire panel of prospective jurors, making it impossible for him to secure an impartial jury; and, thus, the superior court abused its discretion in not striking the panel. See State v. Glassel, 211 Ariz. 33, 45, ¶ 36, 116 P.3d 1193, 1205 (2005) (appellate court reviews ruling on motion to strike jury panel for abuse of discretion). We will not find an abuse of discretion, however, "unless the record affirmatively shows that . . . a fair and impartial jury was not secured." State v. Lujan, 184 Ariz. 556, 560, 911 P.2d 562, 566 (App. 1995) (quoting State v. Arnett, 119 Ariz. 38, 50, 579 P.2d 542, 554 (1978)).
¶4 As "objective indications" of prospective jurors' taint, Moreno offers statements made by two other prospective jurors after they heard Prospective Juror 29's comments. See State v. Tison, 129 Ariz. 526, 535, 633 P.2d 335, 344 (1981) ("Unless there are objective indications of jurors' prejudice, we will not presume its existence."). First, at the close of voir dire, Prospective Juror 5 volunteered she "agreed 100 percent with what [Prospective Juror 29] said." Second, when the superior court asked Prospective Juror 11 follow-up questions relating to a different matter, he
disclosed Moreno's physical appearance, particularly his tattoos, raised "a red flag" and was "affecting [his] judgment."
¶5 The statements of Prospective Jurors 5 and 11, however, do not demonstrate Moreno was unable to secure an impartial jury. Although they expressed opinions similar to those held by Prospective Juror 29, that does not show Prospective Juror 29's comments informed or "tainted" their view of Moreno, let alone the views of the entire panel. See Lujan, 184 Ariz. at 560, 911 P.2d at 566 (appellate court will not "indulge in an assumption" jury panel was tainted due to prejudicial remarks by prospective juror regarding defendant's appearance). Moreover, even if Prospective Jurors 5 and 11 were influenced by Prospective Juror 29's comments, the superior court excused both for cause, and the record does not indicate that any other prospective juror, including those who were ultimately empaneled, were unable to be fair and impartial. Cf. State v. Reasoner, 154 Ariz. 377, 384, 742 P.2d 1363, 1370 (App. 1987) ("[W]hen [a prospective juror] ultimately assures the court that he can be objective, this will suffice and a trial judge does not err in refusing to strike such a juror for cause.").
¶6 Nonetheless, Moreno argues that under the circumstances presented here, we should presume Prospective Juror 29's comments prejudiced the entire panel, likening Prospective Juror 29's comments to those made by prospective jurors in Mach v. Stewart, 137 F.3d 630 (9th Cir. 1997), and Paschal v. United States, 306 F.2d 398 (5th Cir. 1962). In those cases, however, the appellate courts found the prospective jurors' statements prejudicial because they possessed peculiar or "expert-like" knowledge. Mach, 137 F.3d at 632-34 (prospective juror who had academic and professional experience with child psychology and had worked as a social worker stated she "had never known a child to lie about sexual abuse" before panel of prospective jurors when defendant charged with sexual misconduct with a minor and "bulk of the prosecution's case consisted of a child's testimony that [defendant] had sexually assaulted her"); Paschal, 306 F.2d at 399 (prospective juror who was stockholder and director of a bank informed prospective jury panel that bank had received counterfeit money from defendant charged with passing counterfeit money). Here, Prospective Juror 29 had no peculiar factual knowledge or expert-like insight; he worked as a quality director for an aerospace company, was a metallurgical engineer by trade, and claimed no academic or professional knowledge of Moreno's alleged crimes. See State v. Doerr, 193 Ariz. 56, 62, ¶¶ 19-20, 969 P.2d 1168, 1174 (1998) (Mach not applicable when prospective jurors merely acknowledged their own biases and did not comment on defendant's guilt or innocence).
II. The Superior Court Did Not Abuse Its Discretion by Not Allowing Further Voir Dire
¶7 Moreno also argues the superior court abused its discretion in denying his request for further voir dire after it had denied his motion to strike the prospective jury panel. See State v. Parker, 231 Ariz. 391, 399, ¶ 20, 296 P.3d 54, 62 (2013) (appellate court reviews "restrictions on the scope of voir dire for abuse of discretion"). We disagree.
¶8 Arizona Rule of Criminal Procedure 18.5(d), in relevant part, provides:
The court shall control the voir dire examination and shall conduct a thorough oral examination of prospective jurors. . . . Upon the request of any party, the court shall permit that party a reasonable time to conduct a further oral examination of the prospective jurors. The court may impose reasonable limitations with respect to questions allowed during a party's examination of the prospective jurors, giving due regard to the purpose of such examination.
"[T]rial courts have 'great latitude in deciding what questions should be asked on voir dire.'" Glassel, 211 Ariz. at 46, ¶ 37, 116 P.3d at 1206 (quoting Mu'Min v. Virginia, 500 U.S. 415, 424, 111 S. Ct. 1899, 1904, 114 L. Ed. 2d 493 (1991)).
¶9 Here, after Prospective Juror 29 made the comments quoted above and was questioned by the State, the superior court allowed Moreno reasonable time to question the prospective jurors. See Ariz. R. Crim. P. 18.5(d). Moreno's counsel, however, asked only general questions and did not ask the panel any questions designed to explore the possible effects Prospective Juror 29's comments may have had on them. It was only after the superior court denied Moreno's motion to strike the panel that counsel requested further voir dire to ask "about the effects that [Prospective] Juror 29's comments had on [other prospective jurors]." The superior court denied the request, noting that when Prospective Juror 5 said she agreed with Prospective Juror 29's comments, no other jurors raised their hands or their cards or otherwise indicated approval.
¶10 Relying on State v. Anderson, 197 Ariz. 314, 320-21, ¶¶ 13-14, 4 P.3d 369, 375-76 (2000), and State v. Shone, 190 Ariz. 113, 115, 945 P.2d 834, 836 (App. 1997), Moreno contends "the trial court lacked discretion to deny
defense counsel's request [for further voir dire]." Anderson and Shone, however, held that the superior court abused its discretion in denying a defendant the opportunity to conduct any oral examination of prospective jurors. Anderson, 197 Ariz. at 320-21, ¶¶ 13-14, 4 P.3d at 375-76; Shone, 190 Ariz. at 115, 945 P.2d at 836. That is not the case here. Defense counsel was given an opportunity to examine the prospective jurors, and counsel elected not to ask follow-up questions relating to Prospective Juror 29's comments. As discussed, in denying counsel's subsequent request to recall the panel, the court noted no other panel members had indicated they agreed with Juror 29's statements. The court also noted further questioning would only draw more attention to the statements. Thus, having observed the prospective jurors' previous responses, the court did not abuse its discretion by denying Moreno's request for additional voir dire. See State v. Naranjo, 234 Ariz. 233, 239, ¶ 12, 321 P.3d 398, 404 (2014) ("Trial judges are in the best position to 'assess the demeanor of the venire, and of the individuals who compose it.'" (quoting Uttecht v. Brown, 551 U.S. 1, 9, 127 S. Ct. 2218, 2224, 167 L. Ed. 2d 1014 (2007)).
CONCLUSION
¶11 For the foregoing reasons, we affirm Moreno's convictions and sentences.