Opinion
Terry Goddard, Attorney General by Randall M. Howe, Chief Counsel Criminal Appeals Section and Cari McConeghy-Harris, Assistant Attorney General, Phoenix, Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender by Stephen Whelihan, Deputy Public Defender, Phoenix, Attorneys for Appellant.
OPINION
TIMMER, Judge.
¶ 1 Robert Eugene Darnell appeals his conviction and resulting sentence imposed after a jury found him guilty of aggravated assault for "intentionally, knowingly or recklessly" causing physical injury to a child fifteen years of age or younger. Ariz.Rev.Stat. ("A.R.S.") § 13-1203(A)(1) (2001); § 13-1204(A)(4) (2001). Among other contentions, Darnell argues that the trial court committed reversible error by denying one of his peremptory strikes pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In resolving that issue, we must decide whether a court's error in granting the State's Batson challenge automatically requires a new trial or whether the error is subject to harmless error analysis. After resolving that issue and others, we affirm. BACKGROUND
¶ 2 On October 30, 2002, the fourteen-year-old victim and his friend were dressed for a Halloween party in full Army fatigues and were "playing Army." He was "armed" with a light silver-colored "vacuum stick" and his playmate was outfitted with a dark walking cane. From the parking lot of his apartment complex, the victim crouched behind a low wall and pointed his "gun" at Darnell, who stood outside his business across the street talking to a firefighter customer. Darnell spotted the victim, saw that he was wearing an Army fatigue cap, and believed that the victim was pointing a rifle directly at him. Darnell alerted his customer to the danger before the boys, pretending that they had been "spotted," ran and then backtracked to the same general area, where they stood behind a dumpster.
¶ 3 Soon, the victim saw Darnell approach and heard him ask if the boys thought they were being funny. The victim testified he apologized to Darnell and said they were only playing. Darnell then attacked the victim, who offered no resistance and immediately assumed a defensive posture while Darnell continued striking him until the firefighter and his co-worker intervened. One of the firefighters later observed that Darnell "grabbed the kid by the shoulders and by the back of his pants and tried to ram him into the wall." He said the victim prevented himself from hitting the wall by putting his arm up, at which point Darnell began to repeatedly strike him. As a result of Darnell's actions, the victim struck his head on a wall, sustained a bruise on his cheek, an injury inside his mouth, and a mark on his head.
¶ 4 Once Darnell was separated from the victim, one of the firefighters called for police assistance. Darnell began to walk away, and the firefighter asked him to stay. Darnell said he "knew his rights, he didn't have to stay...." Darnell then returned to his business and resumed working.
¶ 5 At trial, Darnell testified that he followed the boys because he feared "that they were probably going to get away, or I didn't know exactly what was going on." He said he had been reading about sniper attacks that had occurred in Washington, D.C. and in Tucson and was worried that the victim and his friend were going to escape. He said he was very upset and, "[he] wanted that person to be caught, period." He further related that he did not know that the victim was only a child until the firefighters intervened.
¶ 6 After the jury convicted Darnell, and the court imposed sentence, this appeal followed.
By separate unpublished decision filed this date, we address additional issues raised on appeal that are not relevant to our analysis in this opinion and do not meet the standards of publication. Ariz. R.Crim. P. 31.26.
DISCUSSION
¶ 7 During voir dire, juror number six stated he worked for a radiology firm and conducted MRIs and CAT scans. Darnell attempted to use the last of his peremptory strikes to remove that juror, and the State challenged the strike under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Before the State could explain why it considered Darnell's strike discriminatory, defense counsel asserted that "the reason I struck him, because he has a medical background. I anticipate that the State is going to be introducing photographs of the victim's injuries. I don't want him to try to analyze them from some kind of an expert's prospective [ sic ]."
The record does not indicate the juror's race. We assume from the proceedings that juror number six was a member of a racially cognizable group.
¶ 8 The trial court then asked if medical testimony would be elicited during trial, and defense counsel responded as follows:
I don't anticipate there will but my concern, frankly, Your Honor, is, it has to do with the injuries. It's just, there are going to be pictures introduced, and I struck him for the same reasons, the victim's alleged injuries.
And I don't want [juror number six] to bring to their consideration any expertise beyond that of a lay person. I don't think any--that is not even an element here. It's just by virtue of his age, social element. The injury isn't an element. I don't want that person's medical background overstating or understating or casting any weight upon the pictures that they are all going to be viewing back in the jury room.
¶ 9 The prosecutor then noted that Darnell did not strike a medical assistant from the panel, which defense counsel called an "oversite" [ sic ]. The trial court granted the State's challenge, finding that the juror's medical background was "not that applicable to this case, and ... he has a right to sit." Juror number six was then placed on the jury, and defense counsel exercised his remaining peremptory strike to remove another person from the jury.
¶ 10 When reviewing a challenge to a trial court's Batson ruling, we defer to the trial court's findings of fact unless they are clearly erroneous, but review the court's application of the law de novo. State v. Lucas, 199 Ariz. 366, 368, ¶ 6, 18 P.3d 160, 162 (App.2001). The trial court's ultimate decision will not be set aside unless it is clearly erroneous. State v. Dewakuku, 208 Ariz. 211, ¶ 28, 92 P.3d 437, 443 (App.2004).
¶ 11 The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits any party from exercising peremptory challenges in a racially discriminatory manner. Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). In determining whether a peremptory strike constitutes an equal protection violation, the trial court must engage in a three-step process. State v. Murray, 184 Ariz. 9, 24, 906 P.2d 542, 557 (1995). First, the court must decide whether the opponent of a strike has established a prima facie showing of racial discrimination. Id. Second, if such a showing exists, the strike's proponent must then give a race-neutral reason to justify the strike. Id. Finally, if a race-neutral reason is given, the court must determine whether the opponent of the strike has proven racial discrimination notwithstanding the proffered race-neutral reason. Id. Throughout this process, the burden of persuasion remains with the party challenging the strike as discriminatory. Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).
¶ 12 Darnell concedes that he waived any issue concerning step one of the test because he offered race-neutral reasons for the strike without awaiting the trial court's ruling regarding the State's prima facie showing, and we agree. State v. Rodarte, 173 Ariz. 331, 333, 842 P.2d 1344, 1346 (App.1992) (citing Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)) (holding state waived objection to court's failure to rule on step one by immediately offering explanation for peremptory strikes). He argues, however, that the trial court misapplied step two of the analysis by requiring that his explanation for the strike be related to the evidence in the case. The State counters that Darnell offered a race-neutral reason for the strike, and the court therefore proceeded immediately to step three, where it properly determined that the proffered reason was a pretext for discrimination.
¶ 13 The record before us, which is unfortunately sparse, supports both parties' interpretations of events. It is simply unclear whether the trial court decided that defense counsel's explanation was not race neutral because medical knowledge was "not that applicable to this case," or that the explanation was race-neutral but a pretext for discrimination. We need not resolve the issue, however, because any error in the court's ruling was harmless.
¶ 14 The Arizona Constitution provides that "[n]o cause shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done." Ariz. Const. art. 6, § 27 (2001); accord A.R.S. § 13-3987 (2001) (providing no reversal "unless it [error] actually has prejudiced, or tended to prejudice, the defendant in respect to a substantial right"); State v. Ring, 204 Ariz. 534, 563, ¶ 96, 65 P.3d 915, 944 (2003). Despite this authority, Darnell asserts that the denial of a right to exercise a peremptory challenge requires automatic reversal without a showing of prejudice.
¶ 15 To support his contention, Darnell relies exclusively on United States v. Annigoni, 96 F.3d 1132 (9th Cir.1996) (en banc), which addressed the appropriate remedy to employ when a trial court erroneously grants a Batson challenge to a defendant's peremptory strike of a venire person. 96 F.3d at 1135-36. After acknowledging that the right to exercise peremptory strikes is statutory rather than constitutional, see Ross v. Oklahoma, 487 U.S. 81, 88-89, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), the Ninth Circuit held that the erroneous denial of a peremptory strike was "simply not amenable to harmless-error analysis" and therefore required automatic reversal. Annigoni, 96 F.3d at 1141, 1144. The court reasoned that because of insufficient information concerning the jury's deliberations, "[i]t would be difficult if not impossible for a reviewing court to determine the degree of harm resulting from erroneously allowing a juror to sit despite an attempted peremptory challenge." Id. at 1144-45.
¶ 16 We decline to follow the holding in Annigoni for two reasons. First, since that decision, the United States Supreme Court has cast doubt on application of this "automatic reversal" rule. In United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), the Court reversed the Ninth Circuit after the latter court decided that the Due Process Clause required automatic reversal when a criminal defendant was forced to use a final peremptory challenge to remove a potential juror after the trial court had wrongly denied a motion to strike that juror for cause. 528 U.S. at 307, 120 S.Ct. 774. The Court held that when a defendant elects to cure the trial court's error by exercising a peremptory strike, and he is subsequently convicted by an unbiased jury, his statutory right to a designated number of peremptory challenges has not been impaired as he ultimately used his entire allotment. Id. at 315-16, 120 S.Ct. 774.
¶ 17 Because the Court found no impairment, it declined to address the Ninth Circuit's holding that automatic reversal is the appropriate remedy whenever a defendant's right to a certain number of peremptory strikes is substantially impaired. Id. at 317 n. 4, 120 S.Ct. 774. However, the Court noted that language in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), which the Ninth Circuit relied on for its holding, "was not only unnecessary to the decision in that case ... but was founded on a series of [the Court's] early cases decided long before the adoption of harmless-error review." Martinez-Salazar, 528 U.S. at 317 n. 4, 120 S.Ct. 774. In Annigoni, the Ninth Circuit, as it did two years later in Martinez-Salazar, similarly relied on Swain to fashion the automatic reversal rule in that case. Thus, although the applicability of the automatic reversal rule in the situation presented by Annigoni and this case has not yet been decided by the Supreme Court, doubt is cast on the viability of Annigoni in light of the Court's statements in Martinez-Salazar.
See United States v. Martinez-Salazar, 146 F.3d 653, 657 (9th Cir.1998) (quoting Swain, 380 U.S. at 219, 85 S.Ct. 824) ("Over thirty years ago, the Supreme Court held that a denial or impairment of the right to exercise peremptory challenges 'is reversible error without a showing of prejudice.' ").
¶ 18 Second, the Arizona Supreme Court's decision in State v. Hickman, 205 Ariz. 192, 68 P.3d 418 (2003), supports a conclusion that harmless-error review applies when a trial court wrongly grants a Batson challenge to a defendant's use of a peremptory strike. Like the defendant in Martinez-Salazar, the defendant in Hickman used peremptory strikes to remove jurors who should have been removed for cause. 205 Ariz. at 193, ¶ 4, 68 P.3d at 419. In deciding the appropriate remedy for such a violation, the supreme court rejected the automatic reversal rule previously adopted in State v. Huerta, 175 Ariz. 262, 266, 855 P.2d 776, 780 (1993), and instead held that a harmless-error analysis is appropriate. Hickman at 194, 196, pp 6, 21, 68 P.3d at 420, 422. The Hickman court reasoned that the Arizona Constitution, A.R.S. § 13-3987, and early Arizona case law compelled a conclusion that a defendant must make a showing of prejudice before a court can reverse an otherwise valid criminal conviction. Id. at 196, ¶ 21, 68 P.3d at 422. The court stated that "most trial error, and even most constitutional error, is reviewed for harmless error," and "the Arizona Constitution and the Arizona harmless error statute obligate [the court] to review trial error in criminal cases under a harmless error standard." Id. at 198, ¶ 28, 68 P.3d at 424. Significantly, the court noted that " 'virtually any error, under particular circumstances, can be harmless.' " Id. at ¶ 29 (citation omitted).
¶ 19 The Hickman court set forth a two-part test to determine whether a particular error is amenable to harmless-error analysis. Id. at 199, ¶ 30, 68 P.3d at 425. First, the reviewing court must decide whether the error is the kind that will likely affect the reliability of the truth-finding process. Id. If not, harmless-error analysis should be employed. Id. If so, the court must then determine whether "the truth finding impact of the error [is] incapable of rational assessment." Id. Although the court did not explicitly explain the significance of the answer to this latter inquiry, the context of the discussion suggests that if the impact of the error is incapable of rational assessment, automatic reversal is warranted. Id.
¶ 20 In Hickman, because the curative use of a peremptory challenge helped ensure the reliability of the truth-finding process by excluding biased jurors, the court was not required to determine whether the impact of the error was incapable of rational assessment before deciding that harmless-error analysis was appropriate. Id. In applying that analysis, the court concluded that the trial court's error was harmless as the jury that decided the case was fair and impartial, and the defendant did not exhaust his peremptory challenges. Id. at 201, ¶ 41, 68 P.3d at 427.
¶ 21 Following the reasoning in Hickman, we decide that any error by the trial court in granting the State's Batson challenge was subject to harmless-error review. Standing alone, the erroneous seating of a juror subject to a peremptory strike would not likely affect the reliability of the truth-finding process. See id. at 199, ¶ 30, 68 P.3d at 425. Although peremptory strikes are used as auxiliary tools in the process of seating a fair and impartial jury, the Sixth Amendment does not require their use to secure such a panel. Martinez-Salazar, 528 U.S. at 311, 120 S.Ct. 774. And unlike a challenge made for cause, a peremptory strike does not necessitate a showing that a juror cannot render a fair and impartial verdict. Ariz. R.Crim. P. 18.4(b), (c). Thus, the seating of a juror subject to a mistakenly denied peremptory challenge does not likely affect the reliability of the truth-finding process and is therefore subject to harmless-error review. We now apply that review in this case.
The Hickman court distinguished State v. Thompson, 68 Ariz. 386, 389-91, 206 P.2d 1037, 1038-40 (1949), thereby impliedly approving the decision. In Thompson, the court held that a jury that mistakenly included three jurors stricken by the defendant was not a validly constituted jury. Hickman, 205 Ariz. at 198, ¶ 26, 68 P.3d at 424. Because the defendant was effectively deprived of three peremptory strikes, he lost a substantial right, requiring reversal. Id. Although Darnell did not argue the impact of Thompson, we are compelled to note that the case does not mandate automatic reversal here. Unlike the defendant in Thompson, Darnell was not deprived of his allotment of peremptory strikes, and the jury was therefore validly constituted.
¶ 22 Error is harmless if no reasonable probability exists to suggest that, but for the error, the verdict might have been different. State v. Sullivan, 205 Ariz. 285, 289, ¶ 21, 69 P.3d 1006, 1010 (App.2003). After reviewing the record and testimony at trial, we conclude that the verdict would have remained the same even if the court had denied the State's Batson challenge. First, the extent of the victim's injuries was not at issue in this case, and no medical testimony was presented to the jury. Thus, any lay medical knowledge expressed by juror number six could not have conflicted with any evidence presented at trial, and it is unlikely that any such expression would have impacted the verdict. Second, juror number sixteen, who was employed as a medical assistant, was left on the jury. Thus, even if juror number six had been removed from the panel, juror number sixteen would have remained to express lay medical opinions. Third, and finally, the evidence presented at trial strongly supports the verdict. In the face of these factors, we conclude that any error by the trial court in granting the Batson challenge was harmless and cannot support a reversal.
CONCLUSION
¶ 23 For the foregoing reasons, we hold that the seating of a juror subject to a mistakenly denied peremptory challenge does not likely affect the reliability of the truth-finding process and is therefore subject to harmless-error review. Because any error by the court in this case was harmless, and for the reasons set forth in our companion memorandum decision, we affirm Darnell's conviction and sentence.
CONCURRING: PHILIP HALL, Presiding Judge.
SNOW, Judge, special concurring opinion.
¶ 24 I agree with the result. However, I think the trial court acted appropriately when it granted the State's Batson challenge. Thus, I believe we can affirm without deciding, as the majority does, that the denial of Darnell's right to exercise a peremptory challenge is subject to harmless error review.
¶ 25 Darnell argues that there is no basis in the record to support the trial court's finding of discrimination in his attempted strike of juror number six. I do not agree.
¶ 26 The majority is quite correct when it observes that at the proceedings below Darnell waived the state's obligation, as the first requirement of a Batson challenge, to make a prima facie showing of racial discrimination. He did so by offering a racially neutral reason for attempting to strike juror number six before the state made the prima facie showing of discrimination. ¶ 12 supra. While a prima facie showing of discrimination may have been evident to the parties and the court due to the race of the juror involved, in light of Darnell's waiver, neither the trial court nor the state detailed in the record the exact basis for the discrimination claim. However, when Darnell waived the necessity for the state to establish that element in the proceeding below, he cannot rely on the failure of the record to clearly indicate the basis for the discrimination claim as a basis for appeal. On appeal we "must assume the trial court found every fact necessary to support its [ruling] and must affirm if any reasonable construction of the evidence justifies the decision." In re Estate of Shumway, 197 Ariz. 57, 61 ¶ 9, 3 P.3d 977, 981 (App.1999) (quoting Stevenson v. Stevenson, 132 Ariz. 44, 46, 643 P.2d 1014, 1016 (1982)).
¶ 27 I further agree that under the second step of the Batson analysis, the race-neutral reason Darnell offered for the strike need not always bear a significant relation to the evidence in the case. Purkett v. Elem, 514 U.S. at 768-69, 115 S.Ct. 1769. But that does not prohibit a trial court, in appropriate circumstances, from considering the lack of relation between the reason offered for the strike and the actual issues to be presented at trial in assessing whether the reason offered is an attempt to mask a discriminatory motive. I believe that is what the trial court found here. The transcript of the argument indicates that the race neutral reason offered by Darnell was that juror number six was employed in the health care field and Darnell did not want him to comment on the injuries to the victim during jury deliberations. Counsel for Darnell nonetheless acknowledged that the victim's injuries were not an element of the crime and would not be the subject of testimony in the case. The State then argued that the explanation offered by Darnell for the attempted strike was demonstrably pretextual because Darnell did not seek to excuse another juror who also was employed in the health care industry on the basis of that juror's employment. These facts, which Darnell does not contest, coupled with the lack of relation between the reason for the strike and any issues in the case, are sufficient to support the Court's Batson ruling that the attempted strike was discriminatory. As the majority has already pointed out, we defer to the trial court in making such determinations. Lucas, 199 Ariz. at 368 ¶ 6, 18 P.3d at 162. For that reason, I would affirm the trial court without deciding whether error in depriving Darnell of a peremptory strike is subject to a harmless error analysis.