Opinion
No. 1 CA-CR 10-0417
06-05-2012
STATE OF ARIZONA, Appellee, v. LORI BANALES CLEMENS, Appellant.
Thomas Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Suzanne M. Nicholls, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Karen M. V. Noble, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-140037-001 DT
The Honorable John R. Hannah, Judge
AFFIRMED
Thomas Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
And Suzanne M. Nicholls, Assistant Attorney General
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Karen M. V. Noble, Deputy Public Defender
Attorneys for Appellant
Phoenix BROWN, Judge
¶1 Lori Banales Clemens challenges her convictions and sentences for two counts of forgery arising from her attempt to cash checks drawn on the account of an elderly neighbor. The checks were made out to Clemens but not written or signed by the account holder. A jury convicted Clemens of forging both checks. On appeal, Clemens argues the trial court erred (1) in denying her challenges pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), of peremptory strikes against three Hispanic jurors, and (2) by substituting an alternate juror during jury deliberations without consulting Clemens or properly instructing the jury to begin deliberations anew. For the following reasons, we affirm.
DISCUSSION
A. Batson Challenges
¶2 Clemens asserts that the trial court erred in denying her Batson challenges to the State's peremptory strike of three Hispanics from the jury panel. She argues the prosecutor failed to provide race-neutral reasons for the strikes. We disagree.
¶3 We will affirm a trial court's denial of a Batson challenge unless it is clearly erroneous. State v. Newell, 212 Ariz. 389, 400, ¶ 52, 132 P.3d 833, 844 (2006). The party making a Batson challenge must first establish a prima facie case that the strike was based on race. State v. Gay, 214 Ariz. 214, 220, ¶ 17, 150 P.3d 787, 793 (App. 2007). The party exercising the strike must then provide a race-neutral explanation for the strike, which must be more than a mere denial of improper motive but need not be persuasive or plausible. Id. Once a race-neutral reason is given, the burden shifts to the challenging party to persuade the court that the proffered explanation is a pretext for discrimination. Id.; State v. Roque, 213 Ariz. 193, 203, ¶ 13, 141 P.3d 368, 378 (2006). Because the trial court is in the best position to evaluate the prosecutor's sincerity and credibility, as well as the juror's behavior, we give great deference to the trial court's determination of whether the explanation is pretextual. See State v. Canez, 202 Ariz. 133, 147, ¶ 28, 42 P.3d 564, 578 (2002).
¶4 The record does not show Clemens met her burden of proving that the State's explanations for its peremptory strikes were pretexts for purposeful discrimination. See Roque, 213 Ariz. at 203, ¶ 13, 141 P.3d at 378. The prosecutor explained she was concerned that Juror #7 was unable to read and "how that would play out during deliberations," and that he had commented about bad experiences with law enforcement. Juror #7 himself was concerned about his illiteracy and informed the court, "I need help because I don't know how to read." Juror #7 also voiced animosity toward police, stating: "[Police] always arrest me. I was like just, that they think I got drugs. And that's it. They always stop me for nothing."
¶5 The prosecutor said she used a strike against Juror #20 because his English was "very poor," and he said he was "scared to make a mistake." Similarly, Juror #20 expressed concern that his poor English would prevent him from understanding the case and discussing it with other jurors. The prosecutor noted that Juror #20 did not raise his hand during any of the jury questions, indicating that he may have had "a compromised understanding of English." Accordingly, the prosecutor explained, she used a strike to remove Juror #20 because she wanted the jury to "make a clear and accurate decision based on all of the information" and to avoid "any sort of communication errors" that would prejudice Clemens.
¶6 As for Juror #23, the prosecutor explained she was concerned that he told the court his sister had also been accused of forgery. The court asked the prosecutor if any juror other than #23 knew someone who had been accused of forgery. The prosecutor replied that one other juror had a friend who stole and forged checks from that juror's parents, but explained the situation was different because Juror #23 was the only one who had a close relative accused of the crime.
¶7 The prosecutor further explained that she used peremptory strikes against only three of the six Hispanic members of the venire. Of the three Hispanic jurors that the State passed, Clemens used peremptory strikes to remove two, suggesting there was no purposeful discrimination against Hispanic jurors. See Roque, 213 Ariz. at 204, ¶ 15, 141 P.3d at 379 (noting that the State's passing other jurors of the same minority on the venire is indicative of a nondiscriminatory motive). The trial court accepted these explanations, stating that Juror #7 was "frankly, a rather obvious strike." As to Jurors #20 and #23, the trial court stated that it found the prosecutor's explanations acceptable. Thus, the trial court did not err in denying the Batson challenges because the State provided facially valid, race-neutral reasons for striking each juror. See Gay, 214 Ariz. at 220, ¶ 17, 150 P.3d at 793.
B. Alternate Juror
¶8 Clemens raises several claims of error involving the trial court's sua sponte decision to seat the only alternate juror. After the parties rested on a Thursday afternoon, Juror #9 was randomly designated as an alternate juror. The jury retired to the jury room and deliberated for about two hours before recessing for the weekend. The next day, Juror #6 informed the court that she would "lose an excessive amount of money if she didn't work" the following Monday and would be "coming [to the jury room] with no sleep." Without consulting counsel for either party, the trial judge instructed his staff "to excuse her and bring the alternate back." Juror #6 was excused, and Juror #9 participated in deliberations the following Monday without the court instructing the reconstituted jury beforehand that it must begin its deliberations anew. The court did not inform the parties that Juror #9 was deliberating, and the parties did not become aware of her presence on the jury until the court reconvened to hear the jury's verdict on Monday afternoon.
¶9 Clemens argues that the trial court committed structural error by failing to inform her counsel before it made the juror substitution in violation of her Sixth Amendment right to the assistance of counsel. See Iowa v. Tovar, 541 U.S. 77, 78 (2004). We agree that the trial court committed a series of errors regarding the replacement of Juror #6; however, we do not agree that the errors require reversal of Clemens' convictions.
¶10 Structural error is error that deprives a defendant "of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence." State v. Soliz, 223 Ariz. 116, 119, ¶ 10, 219 P.3d 1045, 1048 (2009) (citation omitted). Unquestionably, the trial court erred in failing (1) to consult with counsel prior to substituting the alternate juror, (2) to instruct the jury to begin deliberations anew, and (3) to timely inform the parties of the substitution. However, the errors were not structural. See State v. Torres, 208 Ariz. 340, 344, ¶¶ 11-12, 93 P.3d 1056, 1060 (noting that our supreme court has found structural error in only a "very limited class of cases," such as those involving the complete denial of counsel).
¶11 Clemens essentially argues that by deciding to substitute Juror #6 in her absence, the trial court deprived her of the ability to object or weigh in on the decision. But that type of mistake does not rise to the level of structural error. See, e.g. , State v. Guytan, 192 Ariz. 514, 517, ¶ 5, 968 P.2d 587, 590 (App. 1998). In Guytan, which also involved the substitution of a deliberating juror, we recognized that a defendant has the right to confer with and direct his counsel about what course of action to follow when issues of substance are before the court, especially if the jury is to be present. Id. at 520, 522, ¶ 17, ¶ 26, 968 P.2d at 593, 595. Defense counsel in that case waived the defendant's presence and agreed to the substitution of a deliberating juror without first consulting with defendant. Id. at 517, ¶ 5, 968 P.2d at 590. We found that it was "not good practice" for a trial court to allow defense counsel to waive the presence of the defendant and stipulate to the substitution without first having consulted with the defendant. Id. at 520, ¶ 17, 968 P.2d at 593. However, we concluded the error was harmless, reasoning in part that Arizona Rule of Criminal Procedure 18.5(h) allows for a trial court "to substitute a juror after deliberations have begun despite a defendant's objections." Id. (emphasis added).
¶12 Similarly, we must determine whether the errors committed by the trial court in this case were harmless. See State v. Garcia-Contreras, 191 Ariz. 144, 148, ¶ 16, 953 P.2d 536, 540 (1998) (holding that constitutional violations involving a defendant's involuntary absence from a criminal proceeding may be reviewed for harmless error). The inquiry in a harmless error review "is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993) (internal quotations and citation omitted). "Harmless error review places the burden on the state to prove beyond a reasonable doubt that the error did not contribute to or affect the verdict." Henderson, 210 Ariz. at 567, ¶ 18, 115 P.3d at 607.
We reject the State's contention that fundamental error analysis applies because Clemens failed to raise these issues in the trial court. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Recognizing that Clemens had no opportunity to object before the substitution occurred, the trial court suggested that any such objections could be raised in a motion for new trial. The court further stated that Clemens "wouldn't be [waiving] anything" by proceeding in that manner. Clemens then raised these arguments in a motion for new trial which the court denied. Accordingly, these issues are preserved for appeal.
¶13 While Clemens had a right to a fair and impartial jury, she had no right to any particular jury. See Guytan, 192 Ariz. at 520, ¶ 19, 968 P.2d at 593. Juror #9 was the only alternate juror. She participated in the original voir dire, heard all the evidence and jury instructions, and was randomly designated as an alternate. As required by Rule 18.5, Juror #9 had been instructed not to discuss the case, and she indicated on the record that she followed the admonition because she "knew there was a possibility" of being called back. Although Clemens suggests that Juror #9 "seemed eager" to serve on the jury, this would obviously not disqualify her from being on the jury under Rule 18.5(h). Clemens does not otherwise specify any reasons why she believed Juror #9 would have been disqualified or unable to perform her duties as a juror and the record suggests none.
¶14 Clemens argues that the substitution was not harmless error because Juror #9 was allowed to deliberate before instructing the jury "to begin deliberations anew." Pursuant to Rule 18.5(h), "[i]f an alternate joins the deliberations, the jury shall be instructed to begin deliberations anew." The purpose of the rule is to ensure that the verdict is unanimous and does not reflect only the views of the original jurors. See Guytan, 192 Ariz. at 521, ¶ 22, 968 P.2d at 594.
¶15 Because the jury took only thirty minutes to return final verdicts after the court specifically instructed it to begin deliberations anew, Clemens argues the jurors were only "reaffirming their earlier decision." But the authority she relies on, Carroll v. State, 892 P.2d 586 (Nev. 1995) and State v. Gomez, 56 P.3d 1281 (Idaho Ct. App. 2002), are not persuasive.
¶16 In Carroll, the court explained that Nevada law requires a jury to be instructed to begin anew after the substitution of a deliberating juror. 892 P.2d at 587. The trial court, however, only told the alternate juror that the other jurors "will bring you up to speed as quickly as they can," essentially instructing the alternate to "catch up." Id. The reconstituted jury took only "a couple of hours" before rendering its final verdict. Because the original jury had already deliberated for two days, the court believed that the other jurors may have unduly influenced the alternate juror. Id. at 588.
¶17 In Gomez, the original jury deliberated for three hours before an alternate juror was seated. Because Idaho law also requires an instruction to begin deliberations anew, the trial court instructed the jury to "disregard any statements made by the excused juror during deliberations and recommence deliberations with the alternate juror." 56 P.3d at 1282-83 (emphasis added). Less than ten minutes after resuming deliberations, the jury returned guilty verdicts. Id. The Idaho Court of Appeals found that the trial judge's instructions failed to instruct the jury to begin deliberations anew because the word "recommence" may have given the jury the impression that it could resume deliberations "where it had left off, rather than starting over." Id. at 1284. Citing Carroll, the Idaho court noted it was not persuaded that the jury could have started over in such a short period of time. Id. at 1285.
¶18 The circumstances of this case are significantly different. Here, although the trial court should have instructed the jurors to begin deliberations anew when Juror #9 joined them on Monday morning, the court eventually informed the jurors of their duty to start over:
I want to instruct you formally at this time that if an alternate juror joins your deliberations, the jury, you are to begin deliberations as new [sic], start all over and make sure that whatever discussions have come before, happen again, with your [new juror] participating.And, unlike the circumstances in Carroll and Gomez, Juror #9 had participated in deliberations longer than the juror she replaced. Although only thirty minutes elapsed between the giving of the instruction and the final verdicts, Juror #9 had actually been deliberating with the other jurors since 10:00 that morning. By the time the reconstituted jury was given the instruction, Juror #9 had deliberated for over four hours, twice as long as the juror she replaced. In addition, the reconstituted jury submitted a question to the trial judge during the four-hour period, suggesting the jurors had been actively deliberating issues in the case. Accordingly, we conclude that the jury's verdicts were "surely unattributable" to the errors committed by the trial court. See Bible, 175 Ariz. at 588, 858 at 1191.
CONCLUSION
¶19 For the forgoing reasons, we affirm Clemens' convictions and sentences.
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MICHAEL J. BROWN, Judge
CONCURRING:
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PATRICIA K. NORRIS, Presiding Judge
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MARGARET H. DOWNIE, Judge