Opinion
No. 2 CA-CR 2018-0344
12-06-2019
THE STATE OF ARIZONA, Appellee, v. JUDITH MONARREZ-PENA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Heather A. Mosher, Assistant Attorney General, Tucson Counsel for Appellee Rosemary Gordon Pánuco, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pinal County
No. S1100CR201800503
The Honorable Lawrence M. Wharton, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Heather A. Mosher, Assistant Attorney General, Tucson
Counsel for Appellee Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 Judith Monarrez-Pena appeals from her convictions and sentences for transportation of a dangerous drug for sale, a class two felony, and possession of drug paraphernalia, a class six felony. The trial court sentenced her to concurrent prison terms totaling 14.75 years. On appeal, Monarrez-Pena contends that, by denying her motion for a mistrial and her request to strike a juror for cause, the court abused its discretion and violated her right to an impartial jury. We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the convictions. State v. Robles, 213 Ariz. 268, ¶ 2 (App. 2006). In August 2017, Casa Grande Police Detective Brian McCloskey stopped Monarrez-Pena for a traffic violation. McCloskey testified that Monarrez-Pena had seemed "extremely nervous," her cheek was twitching, her hands were shaking, a vein was pulsating in her neck, indicating an uncontrolled, elevated heartrate, and she was avoiding eye contact. Upon his telling Monarrez-Pena that he would likely only give her a verbal warning, her anxiety did not appear to diminish. McCloksey told Monarrez-Pena that he believed she had something in her car that she should not have, and she told him that all she had is a "dub." (McCloskey testified that a "dub" is "a common slang term" for $20 worth of any drug.) She then retrieved a shard of methamphetamine from under the front passenger seat. McCloskey arrested Monarrez-Pena and searched her car, in which he found more than twenty grams of methamphetamine packaged for sale, $1,385 in cash, and a glass pipe. Monarrez-Pena was charged with transportation of a dangerous drug for sale and possession of drug paraphernalia, and the matter was tried to a jury.
¶3 During jury selection—after counsel had identified their peremptory strikes, but before the prospective jurors were recalled to be either empaneled or released—the bailiff informed the trial court that he had been told of a comment made by a juror during the lunch break. He reported that Juror 25 had told him that a comment was made by another juror that Monarrez-Pena's "demeanor . . . was showing guilt" and "that during the lunch break hopefully she took the plea deal and it would be over."
Although, at all times relevant to Monarrez-Pena's claims about the errors made in jury selection, the jurors were merely prospective jurors and not yet formally empaneled, they will be identified herein as "jurors" for ease of reference.
¶4 The trial court gave the parties the opportunity to question Juror 25. Juror 25 stated that another juror had said "that he noticed [Monarrez-Pena] tapping her foot continuously through the proceedings, that she was very nervous, seemed very nervous. And then when we were late for lunch, he said that he thought she was making a deal and that was related to lunch." Juror 25 said that the juror who had made the comment was speaking mainly with one other juror, but that she had not been the only one within earshot of this comment. Juror 25 stated that, if they had been paying attention, five or six other jurors may have heard the comment. Beyond being able to give a physical description of him, Juror 25 was unable to identify the juror who had made the comments, nor could she identify the juror with whom he had been speaking. The court asked Juror 25, if anything she had overheard "would affect [her] ability to be a fair and impartial juror if [she] were ultimately . . . selected." Juror 25 responded, "Not for me, no."
¶5 The trial court then called all of the jurors into the courtroom, and addressed them:
Folks, I've invited you back to really address a singular issue. [It has come] to the Court's attention that perhaps there may have been comments made amongst the prospective jurors regarding the case prior to the[re] being any admission of any evidence and that, perhaps, other members of the prospective panel may have overheard these comments.
I am not here to ultimately determine if there's been any wrongdoing or if there's been any improper conduct. What I'm here particularly to do is to determine whether or not any comments . . . were overheard by anyone if they are affecting your ability to be either a fair or impartial juror. Okay? Just so that you understand the scope of what my purpose is.No one raised a hand, and the court then invited counsel to ask questions. Defense counsel asked if any of the jurors had heard a comment related to determining someone's guilt by something other than evidence. Juror 30 responded, "There were comments about behavior in the courtroom, I guess, is the way I could think of to phrase it."
All right? So let me just ask: If there were comments that were made and you did overhear them if you are amongst that group, if you could indicate to me whether or not you feel as though after perhaps hearing those comments you feel as though it would prevent you from being a fair or impartial juror?
If you can, just raise your hand.
¶6 Juror 7 also raised her hand and stated "[t]hat there were gestures about mannerisms made." When defense counsel inquired into what specifically was said, the trial court intervened and said, "I'm happy to . . . have you ask any of these individuals whether or not you feel as though anything that they may have heard is going to affect [their] fairness and impartiality or ability to serve as a juror. I am not interested in conducting an inquisition." Defense counsel then asked Juror 7 whether any comments made would affect her ability to be impartial as a juror, and Juror 7 responded, "No, not whatsoever."
¶7 The trial court then told the jurors that if any of them would rather have a conversation about this issue in private, they were welcome to do so, and asked them to raise a hand if they so desired. There was no response. At that time, the court asked the jurors to keep their opinions about the case to themselves until it was time for deliberation to begin and excused them from the courtroom.
¶8 Defense counsel informed the trial court that two of the jurors who had heard the comments and the juror who had made the comments had survived peremptory challenge, and would be on the empaneled jury. She then moved for a mistrial, stating, "it is the defense's position that the jury pool is biased at this point, and we would move for a mistrial due to the prejudice on the jury panel." The court denied the motion.
¶9 Defense counsel then requested that Juror 15 be struck for cause because he matched Juror 25's description of the juror who had made the comments. The trial court brought Juror 15 back into the courtroom and asked him, "[D]o you believe that you will be able to be fair and impartial in this case regardless of any comments that may have been overheard?" Juror 15 responded, "Yeah, I'll be fair." The court further inquired, "Okay. And impartial?" Juror 15 responded, "And impartial."
¶10 The trial court again denied the motion for mistrial and did not strike Juror 15. Ultimately, Juror 15 was seated on the jury, while Jurors 25, 7, and 30 were not. Monarrez-Pena was convicted and sentenced as described above. This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Analysis
Juror Strike for Cause
¶11 A trial court must excuse a juror for cause when "there is a reasonable ground to believe that the juror . . . cannot render a fair and impartial verdict." Ariz. R. Crim. P. 18.4(b). "The party challenging the juror bears the burden of establishing that the juror could not be fair and impartial." State v. Hoskins, 199 Ariz. 127, ¶ 37 (2000). We review a "refusal to strike a juror for abuse of discretion." State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 21 (App. 2018). Monarrez-Pena argues that the trial court's denial of her motion to strike Juror 15 was an abuse of discretion.
Citing State v. Rubio, 219 Ariz. 177, ¶ 12 (App. 2008), the state argues that because Monarrez-Pena did not use her preemptory strike to remove Juror 15, she failed to preserve this issue for review. Here, at the time the juror's comments were reported, peremptory strikes had already been made, and no offer was made by the court to begin that process afresh. Consequently, Monarrez-Pena could not have used a strike to remove Juror 15. The state does not cite to any authority requiring that a defendant in this circumstance request either additional peremptory challenges or that the process begin again.
¶12 Monarrez-Pena argues that Juror 15's "opinion demonstrates that he willingly breached the principle that only evidence at trial was to be considered. He went into the jury room with an opinion of her guilt that was not based on the evidence presented, but rather his opinion about what her body language told him." But "a juror who expresses an opinion about the guilt or innocence of a defendant before a trial is completed may nevertheless continue to hear the case as long as that juror keeps an open mind and retains a willingness to alter the opinion after hearing all of the evidence." State v. Arvallo, 232 Ariz. 200, ¶ 8 (App. 2013); accord Acuna Valenzuela, 245 Ariz. 197, ¶ 24. "It is only when a juror's answers demonstrate that he has serious misgivings about his ability to be a fair and impartial juror that he should be struck for cause." State v. Reasoner, 154 Ariz. 377, 384 (App. 1987); see also Hoskins, 199 Ariz. 127, ¶ 37 ("juror's assurances of impartiality need not be couched in absolute terms").
¶13 In Arvallo, during the course of a criminal trial, an empaneled juror submitted a juror question following testimony of a witness who told of her fear of the defendant and of "his people." 232 Ariz. 200, ¶¶ 10-11. Rather than posing a question for the witness, the note expressed the concern of a "lot" of jurors about their anonymity as jurors and asked the judge whether the defendant's family and friends would have access to juror personal information. Id. ¶ 11. After the note was shared with counsel, the defendant moved for a mistrial "because the note implied not only that the jurors had concerns for their personal safety, but also that they were discussing those concerns amongst themselves." Id. The next day, the trial court addressed the jurors, informing them of the steps the court takes to protect their anonymity and personal information. Id. ¶ 12. It then asked the panel as a whole whether any of them "could no longer be fair and impartial," or not follow the court's instructions, including specifically the presumption of innocence, and "whether anyone had any concerns and needed to meet with the court and parties individually." Id. ¶ 13. The court also asked the jurors specifically if any "had discussed any of the facts of the case." Id. None of the jurors gave a positive response to these questions. Id. The court also gave the jurors time, once back in the jury room, "'to write whatever'" they wanted "'on any note.'" Id. None did so. Id. The court then denied the motion for mistrial. Id.
¶14 On appeal, Arvallo contended, among other things, that the juror's note "demonstrate[d] the jurors could not be fair and impartial" and that the trial court's "'perfunctory voir dire of the panel'" "did not 'unring the bell' that [Arvallo] was 'an imposing, terrifying figure'" and that the court erred in refusing to grant the mistrial. Id. ¶ 14. Arvallo argued that the court "must presume from the juror's question . . . that the jurors were biased against [Arvallo] because of their fear of him and that the trial court's actions . . . did nothing to remedy that situation." Id. ¶ 15. This court disagreed. In concluding that the trial court did not abuse its discretion in denying the motion for mistrial, we noted that "[a]ll of the jurors affirmed that they had not discussed the facts of the case and also confirmed their ability to continue to be fair and impartial and follow the court's instructions." Id. ¶ 18. And, in light of the additional opportunity to write a note from the confines of the jury room, we concluded that, "[h]ad any juror viewed [Arvallo] as so dangerous that he or she could not speak up in court, the juror could have expressed any concern in an anonymous note." Id.
The reviewing court seemingly deemed the jurors' silence in response to the trial court's questions as such affirmations and confirmations.
¶15 In Acuna Valenzuela, a capital case, Acuna claimed that several jurors had "expressed a predisposition for the death penalty and inability to consider mitigation" and that the trial court erred in refusing to strike them for cause. 245 Ariz. 197, ¶ 20. To varying degrees during the selection process, these jurors were asked follow-up questions about their expressed opinions, were "rehabilitated" by the court, and were not struck for cause. Id. ¶¶ 18-32. Although the court described the trial court's and counsel's efforts in questioning the challenged jurors as "extensive," in several of the cases the jurors were considered to have been "adequately rehabilitated" upon telling the court they could "be fair" or have an "open mind" or could follow the court's instructions. Id. But whatever the degree of inquiry, the court concluded that the trial court did not abuse its discretion in refusing to strike the jurors. Id.
¶16 As the Acuna Valenzuela court recognized, "a juror's preconceived notions or opinions about a case do not necessarily render that juror incompetent to fairly and impartially sit on the case." Id. ¶ 24. "The trial court can rehabilitate a challenged juror through follow-up questions to assure the court that he can sit as a fair and impartial juror" and "[i]f a juror is willing to put aside his opinions and base his decision solely upon the evidence, he may serve." Id.; see also State v. Blackman, 201 Ariz. 527, ¶ 12 (App. 2002). But, fundamentally, in judging whether or not a given juror can in fact do so, and whether his assurance should be credited, as between the trial court and a reviewing court "[t]he trial court is 'in the best position to assess the demeanor of the venire, and of the individuals who compose it.'" Acuna Valenzuela, 245 Ariz. 197, ¶ 24 (quoting State v. Naranjo, 234 Ariz. 233, ¶ 12 (2014)).
¶17 Monarrez-Pena's argument is, fundamentally, that Juror 15 was not honest when he told the trial court he could be fair and impartial. But because the trial judge is in a superior position to see and hear the responding juror and thus judge his credibility, we defer to the court as to such questions. Naranjo, 234 Ariz. 233, ¶ 19. Thus, although the court here could have been more comprehensive in its questioning, see State v. Smith, 182 Ariz. 113, 115 (App. 1995) ("We do not suggest that whenever a juror utters the words, 'I think I can be fair,' the trial judge should deny a motion to strike for cause. These issues are not to be resolved by 'magic words.'"), or could have allowed more targeted questioning by counsel, we cannot conclude that the court's questioning of Juror 15 was insufficient as a matter of law and we cannot say that the court abused its discretion in denying Monarrez-Pena's request to strike Juror 15 for cause.
Mistrial
¶18 Monarrez-Pena argues that the trial court should have declared a mistrial under the circumstances. She contends that the jury was tainted because "it can't be concluded beyond a reasonable doubt that Juror []15 didn't influence the jury with his non-evidence based opinion that Monarrez-Pena[] was guilty." We review a trial court's denial of a motion for mistrial for abuse of discretion. State v. Dann, 205 Ariz. 557, ¶ 43 (2003). In circumstances such as this, Monarrez-Pena has the burden of showing that the remarks of one juror tainted, or "prejudiced," the others. See Reasoner, 154 Ariz. at 384. We will not speculate or presume that the other jurors were prejudiced. See State v. Doerr, 193 Ariz. 56, ¶ 18 (1998). The record here does not reflect any general taint of the jury.
¶19 The record does reflect that the jurors, under oath, assured the trial court they could be fair and impartial and had not been affected by the comments made. The court questioned the jurors as a whole, and they confirmed—either affirmatively when questioned one-on-one or by their silence—that nothing had affected their ability to be fair and impartial. The court also gave the jurors the opportunity to speak privately with the court and counsel about their ability to be fair and impartial. No juror betrayed any evidence of prejudice or taint. In other circumstances, such as in the cases of jury taint by pretrial publicity, a juror's assurances of fairness and impartiality alone are not dispositive; the totality of the circumstances, including the outrageousness of the conduct involved, must be examined to assure fairness and impartiality. State v. Bible, 175 Ariz. 549, 565 (1993); see also State v. Smith, 123 Ariz. 231, 236 (1979) (juror prejudice from pretrial publicity will be presumed when "so outrageous that it pervaded the proceedings"). Even if we were to apply those standards here, the totality of the circumstances do not reflect outrageous circumstances nor does the record otherwise undermine the jurors' assurances.
¶20 Monarrez-Pena argues, however, that the "trial court's handling of the biased juror here was error" and that the court made only a "limited inquiry" of Jurors 15, 7, and 5, leading to "an incomplete record." But as discussed above, the court asked the crucial question of whether those panel members could be fair and impartial, despite any comments that may have been made. See Ariz. R. Crim. P. 18.4(b); Acuna Valenzuela, 245 Ariz. 197, ¶ 24. Moreover, during voir dire, before the comments at issue were made, defense counsel told the jury that "sitting on a jury is evaluating all the evidence" and asked them if they thought they "could tell whether or not someone's guilty or innocent by something other than evidence," such as "a facial expression or the way they look or a gesture they might make." Not a single member of the panel indicated they could do so. The court was free to credit this avowal by the panel. See Naranjo, 234 Ariz. 233, ¶ 12.
¶21 Because the record does not reflect that any one juror was prejudiced, any claim of general taint of the jury is speculation. Consequently, we cannot conclude the trial court abused its discretion in denying Monarrez-Pena's motion for a mistrial.
Disposition
¶22 For the foregoing reasons, we affirm.