State v. Huerta

OPINION

MOELLER, Vice Chief Justice.

FACTS

Defendant was charged with two counts of child molestation. The two counts involved separate incidents with different victims. During jury selection, the court asked the jury panel whether any of them would automatically feel defendant was guilty simply because a police officer had accused or arrested him. In response, one juror volunteered that, because defendant had been charged with two separate counts involving separate victims, he believed defendant was probably guilty.

On further questioning by the trial judge on whether he could be a fair and impartial juror, the juror responded “[n]ot with two counts being alleged against him by two different victims, sir.” When the court asked whether that was the only reason that the juror could not be fair and impartial, the juror responded “[djepends on what’s presented by [the prosecutor] and that. I don’t feel that I can.”

Defendant challenged the juror for cause. The trial court denied the challenge, and defendant used one of his peremptory challenges to remove the challenged juror. Defendant was convicted on both counts and sentenced to two consecutive seventeen-year terms of imprisonment. On appeal, the court of appeals agreed with defendant that the trial court erred in denying his challenge for cause. See State v. Huerta, 170 Ariz. 584, 586, 826 P.2d 1210, 1212 (App.1991). This finding of error is unchallenged in this court. Notwithstanding the error, the appeals court, applying a harmless error analysis, held that defendant was not entitled to a new trial because he had not shown that a biased juror served on the panel that convicted him. Id. at 587, 826 P.2d at 1213. Therefore, the court of appeals affirmed defendant’s convictions and sentences. Id. at 589, 826 P.2d at 1215.

We granted review and have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), A.R.S. § 12-120.24, and Rule 31.19, Ariz. *263R. Crim.P. We conclude, contrary to the court of appeals, that existing Arizona precedent on this point has not been, and should not be, overruled. That precedent requires reversal when a trial judge erroneously fails to excuse a juror for cause.

ISSUE PRESENTED

Whether reversal is required when a trial judge erroneously denies a challenge to a juror for cause.

DISCUSSION

Arizona provides for peremptory challenges by court rule. For criminal cases, Rule 18.4(c), Ariz.R.Crim.P., states in part:

Both parties shall be allowed the following number of peremptory challenges:

(i) Ten, if the offense charged is punishable by death.

(ii) Six, in all other cases tried in Superi- or Court.

In enforcing this rule, as well as its civil counterpart, Rule 47(e), Ariz.R.Civ.P., Arizona courts have long held that a litigant who is denied the full use of the allotted peremptory challenges is denied a substantial right, which requires reversal, even absent an independent showing of prejudice (“the Arizona rule”). See, e.g., Wasko v. Frankel, 116 Ariz. 288, 290, 569 P.2d 230, 232 (1977); State v. Sexton, 163 Ariz. 301, 303, 787 P.2d 1097, 1099 (App. 1989).

The court of appeals concluded that the reasoning in the recent Supreme Court case of Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L.Ed.2d 80 (1988), and Justice Corcoran’s special concurrence in our recent case of State v. Comer, 165 Ariz. 413, 431, 799 P.2d 333, 351 (1990), cert. denied, 499 U.S. 943, 111 S.Ct. 1404, 113 L.Ed.2d 460 (1991), eroded support for the Arizona rule. Because the disqualified juror had been removed by the use of one of defendant’s peremptory challenges, the court of appeals held there was no reversible error. See Huerta, 170 Ariz. at 585-87, 826 P.2d at 1211-13. The state urges us to reject our earlier cases and adopt the court of appeals’ opinion. In light of the court of appeals’ opinion and the state’s arguments, we conclude that it is appropriate to revisit the history and development of the Arizona rule to determine whether we should continue to follow it.

DEVELOPMENT OF THE ARIZONA RULE

The history of the Arizona rule is not without some inconsistency. In the early case of Encinas v. State, 26 Ariz. 24, 28-29, 221 P. 232, 233 (1923), we looked to California law to guide us. The California rule was that “the order overruling challenge for cause must amount to prejudicial error in order to require reversal____” Id. at 28, 221 P. at 233 (citing People v. Johnson, 57 Cal.App. 391, 207 P. 281 (1922)). We followed the California rule. Encinas, 26 Ariz. at 28-29, 221 P. at 233. Our holding was based in part on Ariz. Const. art. 6, § 22 (now § 27), which states:

No 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.

Implicit in the Encinas opinion was the proposition that failure to strike a biased juror for cause was “technical error.” En-cinas, 26 Ariz. at 28-29, 221 P. at 233; see also B.W.L. Sam v. State, 33 Ariz. 383, 399-400, 265 P. 609, 615 (1928) (failing to follow the law in forming the jury panel was “technical error,” not requiring reversal in the absence of a showing of other prejudice to the defendant).

However, the Encinas view that depriving a litigant of the full complement of allotted peremptory challenges was mere technical error was later expressly rejected by this court. See State v. Thompson, 68 Ariz. 386, 389-92, 206 P.2d 1037, 1039-40 (1949). In Thompson, a criminal case, the defendant exercised five peremptory challenges, but the clerk failed to remove three of those challenged from the jury panel. Id. at 389, 206 P.2d at 1038-39. The three jurors erroneously left on were part of the panel that heard the case and convicted the defendant. Id. We noted that breaches of the formal rules of jury selection had long been looked upon as mere technical errors *264not requiring reversal in the absence of a separate showing of prejudice. We ruled, however, that

[wjhile it is true that there is no constitutional right to peremptory challenges in this state, it being purely legislative in origin [citation omitted] or granted by rules of criminal procedure having the effect of law [citation omitted], still this is a substantial rather than a mere procedural or technical right and should be fully enforced as an aid in securing an impartial jury.

Id. at 390, 206 P.2d at 1039 (emphasis added).

The Thompson court therefore held, without referring to the earlier Encinas case, that Thompson’s conviction must be reversed, even though he had not independently shown that any juror who sat was, in fact, disqualified other than through use of a peremptory challenge. Id. at 390-91, 206 P.2d at 1039-40.1 After Thompson, the right to peremptory challenges was incorporated into the rules of criminal procedure. See Rule 225, Ariz.R.Crim.P. (1956).

In Wasko v. Frankel, a civil case, we faced the same factual situation we face today. 116 Ariz. at 289-90, 569 P.2d at 231-32. There, a trial judge erroneously denied a motion to strike a biased juror for cause, and the plaintiff was forced to use a peremptory challenge to remove the juror. Id. The court, implicitly overruling Encinas without citing it, followed the Thompson lead and held that

[t]he right of a party to peremptory challenges is a substantial right of which he should not be deprived____ Peremptory challenges form an effective method of assuring the fairness of a jury trial. Hence, forcing a party to use his peremptory challenges to strike jurors who should have been stricken for cause denies the litigant a substantial right.

Id. at 290, 569 P.2d at 232 (citations omitted). Thus, the court reversed the judgment, even though plaintiff had shown no separate prejudice as a result of the trial judge’s error. Id.; see also Sexton, 163 Ariz. at 303, 787 P.2d at 1099 (a recent court of appeals case applying Wasko in a criminal case). Existing Arizona precedent therefore clearly provides that when a trial judge erroneously denies a challenge for cause, reversal is required even if the challenging party does not independently show that a biased juror sat on the case.

The state argues, however, that language in two Arizona cases, State v. Chaney and State v. Sexton, undermines the reasoning of Thompson and Wasko. We disagree. In State v. Chaney, 141 Ariz. 295, 303, 686 P.2d 1265, 1273 (1984), the holding was that the trial judge had not abused his discretion in failing to remove a juror for cause. We did state in passing, however, that “Chaney ha[d] not indicated whether there was a petit jury member who he would have excused peremptorily but could not because he had used a peremptory strike to excuse the juror who made the statement.” Id. In Sexton, 163 Ariz. at 303, 787 P.2d at 1099, the court of appeals expressly applied the rule of Was-ko and Thompson and reversed because the trial court had erroneously denied a challenge for cause. In its discussion of this issue, the court merely included the fact that defense counsel had stated on the record that she would have used the wasted peremptory challenge on another juror if the trial court would have excused the challenged juror. Id. at 302, 787 P.2d at 1098. In our view, neither of the casual statements in Chaney or Sexton call into question the continued validity of the Arizona rule announced in Thompson and Wasko.

*265The state and the court of appeals noted, however, that recently, in Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988), the United States Supreme Court held that the Sixth and Fourteenth Amendments to the United States Constitution do not require reversal of a conviction when a defendant is forced to use a peremptory challenge to strike a biased juror from a jury panel, as long as the jury that hears the case is fair and impartial. Ross arose under Oklahoma law. Oklahoma law required that a defendant remove the biased juror with a peremptory challenge to preserve for appeal a judge’s refusal to strike a juror for cause. Id. at 89, 108 S.Ct. at 2279. The defendant argued that this requirement of Oklahoma law violated his rights to federal due process. The Supreme Court disagreed, stating that the defendant would have been denied due process only if he did “not receive that which state law provides.” Id. The Court concluded that neither the Due Process Clause nor the jury provisions of the Sixth Amendment require reversal if a defendant is required under state law to use a peremptory challenge to cure a trial judge’s error in failing to strike a biased juror for cause. Id. at 90, 108 S.Ct. at 2279.

Clearly, Ross teaches that federal constitutional provisions are not violated by the approach taken by the court of appeals’ in this case. Our earlier cases, however, are not bottomed on federal constitutional law, but upon state procedural law, which is established by a long line of Arizona authority. Ross therefore does not control our decision. See Michigan v. Long, 463 U.S. 1032, 1040, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983).

POLICIES BEHIND THE ARIZONA RULE

Stare decisis commands that we not lightly overrule prior case law, and we will not do so in the absence of compelling reasons. Hedlund v. Sheldon, 173 Ariz. 143, 840 P.2d 1008 (1992). Mere disagreement with those who preceded us is not enough. State v. Salazar, 173 Ariz. 399, 416, 844 P.2d 566, 583 (1992) (citing State v. Crowder, 155 Ariz. 477, 483, 747 P.2d 1176, 1182 (1987) (Moeller, J., concurring in part and dissenting in part)). However, we do not disagree with the rationale of Thompson and Wasko. We believe it is sound and that the cases should not be overruled.

“The peremptory challenge has very old credentials.” Swain v. Alabama, 380 U.S. 202, 212, 85 S.Ct. 824, 831, 13 L.Ed.2d 759 (1965), overruled by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Indeed, they had long been in use by the time Parliament first sought to regulate them in 1305. See id. 380 U.S. at 213, 85 S.Ct. at 832. The United States Congress first authorized using peremptories in federal court in 1790, id. at 214, 85 S.Ct. at 832, and today the practice continues by rule in the federal system, Fed.R.Crim.P. 24(b).

Long before Ross, and indeed before our initial proclamation in Encinas, the United States Supreme Court held that peremptory challenges were not mandated by the United States Constitution. Stilson v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 30, 63 L.Ed. 1154 (1919). As even the Ross Court conceded, however, “the right to exercise peremptory challenges is ‘ “one of the most important of the rights secured to the accused.” ’ ” Ross, 487 U.S. at 89, 108 S.Ct. at 2278 (quoting Swain, 380 U.S. at 219, 85 S.Ct. at 835 (quoting Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894))).

Peremptory challenges are designed to legitimize an important purpose in our criminal justice system. They protect the defendant from jury resentment to questions asked in attempting to exercise a challenge for cause. See Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892). Peremptory challenges also help ensure that the defendant holds no prejudice against any juror. “[T]he law wills not that [a party] should be tried by any one [juror] against whom he has conceived a prejudice____” Id. Peremptories also “allow the exclusion of persons from juries when their neutrality is threatened by their backgrounds, group af*266filiations or unconscious biases” not admitted during voir dire. Note, Ross v. Oklahoma: A Strike Against Peremptory Challenges, 1990 Wis.L.Rev. 219, 223.

Reversal is the only feasible way to vindicate a party’s “substantial right” to peremptory challenges, which right is clearly impinged when a trial judge erroneously denies a challenge for cause. Given the Arizona cases and their supporting rationale, a harmless error analysis such as that applied by the court of appeals and argued for by the dissent in this case is not appropriate in Arizona. Adoption of such a harmless error test would inevitably lead to bizarre results. Under the Hobson’s choice presented by the dissent, the defendant who strikes the biased juror can never show prejudice, but the defendant who leaves the biased juror on the panel waives the issue. It seems that under the dissent’s view, a party can only show reversible prejudice if the judge erroneously denies one more challenge for cause than a party has peremptory challenges. Such a holding would encourage parties to make increased efforts to demonstrate bias on the part of some of the other jurors, either before, during, or after the trial. This situation would lead to an ongoing trial of the jurors instead of the merits of the case. We do not wish to adopt a rule that will encourage and place a premium on such gamesmanship and nonproductive judicial proceedings.

We reject the argument, which the dissent advances and which has some illusory appeal, that a party is entitled only to a fair trial and not to a trial with particular jurors.2 See also Comer, 165 Ariz. at 431, 799 P.2d at 351 (Corcoran, J., specially concurring). Justice Corcoran notes that the evidence of defendant’s guilt is strong and that defendant has not shown that any juror that actually sat was prejudiced. He believes that is all the law requires. Justice Martone argues that the defendant has not even stated what he would have done with the peremptory challenge if not forced to strike the biased juror; therefore, we must presume that the jury that sat was fair and impartial. We believe that these arguments miss the point and the policy behind the Arizona rule. We simply cannot presume that a trial is fair when a trial judge erroneously fails to dismiss a biased juror for cause. Cf. Thompson, 68 Ariz. at 391, 206 P.2d at 1040. In most cases, a party cannot possibly show what effect the trial judge’s error had upon the outcome of the trial. But one thing is certain: the trial judge’s error forces the party correctly challenging a juror for cause to waste a peremptory challenge, giving that parly one less peremptory challenge than the other side — a result that we are unable to condone. Cf. Ross, 487 U.S. at 91-92, 108 S.Ct. at 2280 (Marshall, J., dissenting). The adversary system demands a level playing field to work properly. A party that correctly challenges a juror for cause should not bear the brunt of the court’s error in denying the challenge. Although trial courts have considerable discretion in ruling on challenges for cause, they should not have carte blanche to deny them, a result that will inevitably flow from the court of appeals’ approach.

If the purposes behind peremptory challenges are to be advanced, the defendant should not be required to use peremptories as a “safety net” for errors made by a trial court in addressing challenges for cause. In Arizona, by rule, a criminal defendant has a right to exercise peremptory challenges. Rule 18.4(c), Ariz.R.Crim.P. If this right is to mean anything, the parties must be able to exercise strikes independent of the court’s rulings on challenges for cause. The court of appeals’ holding— burdening the parties with a supervisory duty over the trial court when it errs in denying a challenge for cause — eviscerates the substance of challenges for cause as well as peremptory challenges. Although Ross suggests that peremptory challenges constitutionally may be eliminated, such a *267change — even if desirable — should be made by following appropriate procedures, rule 28, Ariz.R.Sup.Ct., not by merely using this case as a vehicle for gutting the substance of the right.

CONCLUSION AND DISPOSITION

Requiring a party to show separate prejudice when a trial judge erroneously fails to remove a biased juror would effectively eviscerate the right to peremptory challenges in Arizona. The prejudice of having one less peremptory challenge than the other side is enough to mandate reversal. If peremptory challenges are worth having at all, they are worth protecting. Because the rule of Thompson and Wasko does just that, we adhere to the rule announced in those cases. Defendant’s convictions are reversed and this case is remanded to the trial court for a new trial. The court of appeals’ opinion is vacated.

FELDMAN, C.J., and ZLAKET, J., concur.

. Justices Corcoran and Martone argue in dissent that Thompson is distinguishable because, in that case, jurors that had been struck by the defendant actually sat on the case. The principle behind Thompson, however, is the same one we face today. Thompson got less than the full benefit of his peremptory challenges as did the defendant in this case. The fact that defendant here did not state what he intended to do with the lost peremptory challenge does not change the analysis. Requiring the defendant to use the magic words to win reversal exalts form over substance.

. Justice Corcoran argues that our opinion can be read to allow the defendant a jury of his choosing. This is not the case. The right to peremptory challenges is not the right to select any particular jury, but the right to reject certain jurors. See State v. Zimmer, 106 Ariz. 166, 168-69, 472 P.2d 35, 37-38 (1970).