SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0424-PR
Appellee, )
) Court of Appeals
v. ) Division One
) Nos. 1 CA-CR 00-0215
ROBERT DWIGHT HICKMAN, ) 1 CA-CR 00-0542
) (Consolidated)
Appellant. )
) Maricopa County
) Superior Court
) No. CR 98-009183
)
) O P I N I O N
Appeal from the Superior Court in Maricopa County
The Honorable Linda A. Akers, Judge
AFFIRMED
Memorandum Decision of the Court of Appeals
Division One, filed October 25, 2001
VACATED IN PART
JANET A. NAPOLITANO, ARIZONA ATTORNEY GENERAL Phoenix
By Randall M. Howe, Chief Counsel,
Criminal Appeals Section
and Cari McConeghy-Harris, Assistant Attorney General
Attorneys for Appellee
JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Louise Stark, Deputy Public Defender
Attorneys for Appellant
R Y A N, Justice
¶1 State v. Huerta requires automatic reversal of a criminal
trial when a defendant uses a peremptory strike to remove a
prospective juror whom the trial court should have excused for
cause. 175 Ariz. 262, 266, 855 P.2d 776, 780 (1993). We granted
review to reexamine Huerta’s automatic reversal rule in light of
the United States Supreme Court’s decision in United States v.
Martinez-Salazar, 528 U.S. 304 (2000),1 and other recent
developments with respect to this issue. We have jurisdiction
under Article 6, Section 5(3), of the Arizona Constitution, and
Arizona Revised Statutes (“A.R.S.”) sections 13-4031 and -4032
(2001).
I.
¶2 A jury convicted Robert Dwight Hickman of three counts of
sexual exploitation of a minor for downloading child pornography
from the Internet. Hickman appealed raising several issues,
including whether the trial court committed reversible error by
failing to strike two potential jurors for cause, thereby forcing
him to exercise two of his peremptory strikes to remove the
venirepersons.
¶3 During voir dire, two venirepersons indicated that they
1
Hickman argues that the State failed to raise Martinez-
Salazar at trial or on appeal, thus waiving the right to do so now.
Although true, in the interests of judicial economy, we granted
review to address this issue as it has been raised a number of
times previously since Martinez-Salazar, see, e.g., State v.
Ibanez, 201 Ariz. 56, 59-60, ¶¶ 11-14, 31 P.3d 830, 833-34 (App.
2001), and is an issue of statewide importance. See Barrio v. San
Manuel Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 104, 692
P.2d 280, 283 (1984).
-2-
had serious reservations about serving on a jury in this case. One
venireperson stated, “I’m not quite sure I can be fair with the
emotions involved.” A second venireperson stated that she would
not be able to render a fair verdict. Hickman asked the trial
court to strike the potential venirepersons, but the court denied
the request. Hickman subsequently used two peremptory challenges
to remove both from the panel and was convicted by a fair and
impartial jury.
¶4 On appeal, citing Huerta, Hickman argued that the trial
court’s erroneous failure to remove the prospective jurors
constituted an abuse of discretion and required automatic reversal.
The court of appeals held that “[i]n light of [the venireperson’s]
unambiguous responses indicating that she would be biased and
therefore unable to render a fair verdict, the trial court erred in
refusing to strike her for cause.”2 State v. Hickman, 1 CA-CR 00-
0215, 1 CA-CR 00-0542 (Consolidated), slip op. at ¶ 9 (Ariz. App.
Oct. 25, 2001) (mem. decision). The court remanded the case for a
new trial.
2
The court of appeals found it unnecessary to determine
whether there was error in failing to remove both venirepersons, as
Huerta compels reversal for one error. State v. Hickman, 1 CA-CR
00-0215, 1 CA-CR 00-0542 (Consolidated), slip op. at ¶ 6 (Ariz.
App. Oct. 25, 2001) (mem. decision).
-3-
II.
A.
¶5 In Huerta, a majority of this court held that a
defendant’s substantial right to peremptory challenges is violated
when a trial judge erroneously denies a challenge to a juror for
cause, regardless of whether the defendant was actually prejudiced.
175 Ariz. at 266, 855 P.2d at 780. The majority reasoned that in
most cases it is impossible for a party to show the effect of the
trial judge’s error upon the outcome of the trial. Id. It said
the only certain thing is “the trial judge’s error forces the party
correctly challenging a juror for cause to waste a peremptory
challenge, giving that party one less peremptory challenge than the
other side.” Id. Thus, the Huerta majority concluded that
“[r]eversal is the only feasible way to vindicate a party’s
‘substantial right’ to peremptory challenges.” Id. Two justices
dissented, contending that reversal should not be required in the
absence of a showing of prejudice. Id. at 269, 855 P.2d at 783
(Corcoran, J., dissenting); id. at 271, 855 P.2d at 785 (Martone,
J., dissenting).
¶6 The question on review is whether we should continue to
follow Huerta’s automatic reversal rule. We conclude that in light
of the Supreme Court’s decision in Martinez-Salazar and the
decisions of courts in other jurisdictions that overruled their
similar automatic reversal rule, Huerta should be overruled. We
-4-
begin our analysis by examining an earlier decision of the Court
that foreshadowed the result reached in Martinez-Salazar.
B.
¶7 In Ross v. Oklahoma, the Court held that the Sixth and
Fourteenth Amendments do not compel reversal when a state law
requires a defendant to use a peremptory challenge to cure a trial
court’s erroneous denial of a challenge for cause. 487 U.S. 81,
88-89 (1988). The Oklahoma rule at issue in that case had been
interpreted by the Oklahoma courts as requiring that a defendant
use his peremptory challenges to cure the trial court’s for-cause
error. Id. at 89-90. If the defendant did not exercise a
peremptory challenge to remove an erroneously retained juror, the
defendant waived the right to argue that reversible error occurred.
Id. at 89. The Court thus concluded Oklahoma intended that the
number of peremptory challenges it chose to give a defendant
included any peremptory challenges that a defendant might use to
cure a trial court’s error. Id. at 90-91. Because the defendant
“received all [the peremptory challenges] that Oklahoma law allowed
him,” no error occurred. Id. at 91.3
3
Because Oklahoma law had long held that defendants were
required to use their peremptory strikes to cure trial court errors
on challenges for cause, the Ross court did not reach the issue of
whether a defendant being forced to exercise a peremptory challenge
to cure a trial court error, absent state law requiring him to do
so, was a denial or impairment of his right to exercise peremptory
challenges under state law. Id. at 91 n.4.
-5-
¶8 After Ross, most jurisdictions that considered the issue
either rejected the automatic reversal rule or reaffirmed their
jurisdiction’s prior opinions that the curative use of a peremptory
challenge was not reversible error, absent prejudice to the
defendant. See, e.g., Pickens v. State, 783 S.W.2d 341, 345 (Ark.
1993); Dawson v. State, 581 A.2d 1078, 1093-94 (Del. 1990), vacated
on other grounds by Dawson v. Delaware, 503 U.S. 159 (1992);
Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990); State v. Graham,
780 P.2d 1103, 1108 n.3 (Haw. 1989); People v. Gleasch, 568 N.E.2d
348, 353 (Ill. 1991); Vaughn v. State, 559 N.E.2d 610, 614 (Ind.
1990); State v. Neuendorf, 509 N.W.2d 743, 747 (Iowa 1993);
Williams v. Commonwealth, 829 S.W.2d 942, 943 (Ky. Ct. App. 1992);
Hunt v. State, 583 A.2d 218, 233 (Md. 1990); Mettetal v. State, 602
So. 2d 864, 869 (Miss. 1992); State v. DiFrisco, 645 A.2d 734, 751-
53 (N.J. 1994); State v. Tranby, 437 N.W.2d 817, 824 (N.D. 1989);
State v. Broom, 533 N.E.2d 682, 695 (Ohio 1988); State v. Green,
392 S.E.2d 157, 160 (S.C. 1990); State v. Middlebrooks, 840 S.W.2d
317, 329 (Tenn. 1992); State v. Menzies, 889 P.2d 393, 398 (Utah
1994); State v. Traylor, 489 N.W.2d 626, 629 (Wis. Ct. App. 1992).
¶9 The Huerta majority, however, concluded that Ross was not
controlling because “[o]ur earlier cases . . . are not bottomed on
federal constitutional law, but upon state procedural law, which is
established by a long line of Arizona authority.” 175 Ariz. at
265, 855 P.2d at 779. In examining our prior cases, the court
-6-
stated, “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.” Id. at 263, 855 P.2d at 777.
C.
¶10 In 2000, the Supreme Court in Martinez-Salazar, in
examining Federal Rule of Criminal Procedure 24(b), held that an
erroneous denial by the district court of a challenge for cause of
a juror, followed by the defendant’s use of a peremptory challenge
to remove that juror, does not deprive the defendant of any “rule-
based or constitutional right” if the defendant is subsequently
convicted by an impartial jury. 528 U.S. at 307. Specifically,
the Court held the following:
We . . . hold that a defendant’s exercise of peremptory
challenges . . . is not denied or impaired when the
defendant chooses to use a peremptory challenge to remove
a juror who should have been excused for cause.
Martinez-Salazar and his co-defendant were accorded 11
peremptory challenges, the exact number . . . allowed.
Id. at 317.
¶11 The Court acknowledged the important role peremptory
challenges play in “reinforcing a defendant’s right to trial by an
impartial jury.” Id. at 311. However, the Court pointed out that
“such challenges are auxiliary; unlike the right to an impartial
jury guaranteed by the Sixth Amendment, peremptory challenges are
not of federal constitutional dimension.” Id. (citing Ross, 487
-7-
U.S. at 88; Stillson v. United States, 250 U.S. 583, 586 (1919)).
Thus, a defendant’s exercise of a peremptory challenge to cure a
trial court’s error in denying a challenge for cause, without more,
does not violate the constitutional right to an impartial jury.
Id. at 313.
¶12 The Court, however, rejected the Government’s argument
that the federal rule should be construed to require that a
defendant use a peremptory challenge to remove a juror the trial
court should have struck for cause “to preserve the claim that the
for-cause ruling impaired the defendant’s right to a fair trial.”
Id. at 314. Instead, the Court concluded that “Martinez-Salazar
had the option of letting [the venireperson] sit on the petit jury
and, upon conviction, pursuing a Sixth Amendment challenge on
appeal.” Id. at 315. Martinez-Salazar made a strategic choice
when he elected to remove the juror. Id. Martinez-Salazar’s due
process rights were not violated, because, in the Court’s view,
“[a] hard choice is not the same as no choice.” Id.
¶13 In a concurring opinion, Justice Scalia, joined by
Justice Kennedy, expressed reservations about the majority’s
conclusion that Martinez-Salazar could have opted to leave the
challenged juror on the jury, and upon conviction, pursue a Sixth
Amendment challenge on appeal. Id. at 318-19. He questioned
whether the “normal principles of waiver” would not “disable a
defendant from objecting on appeal to the seating of a juror he was
-8-
entirely able to prevent.” Id. at 318. Because this question was
not presented, he believed that the majority should not have
addressed it. Id. at 319. Accordingly, Martinez-Salazar left open
the question of whether a harmless error analysis would apply to a
defendant’s use of a peremptory challenge to cure a trial court’s
erroneous denial of a challenge for cause. See William T. Pizzi &
Morris B. Hoffman, Jury Selection Errors on Appeal, 38 Am. Crim. L.
Rev. 1391, 1403-06 (2001).
¶14 Despite the question left open by Martinez-Salazar,
several state courts, citing Martinez-Salazar, have adopted the
rule that, absent a showing of prejudice, a defendant’s use of a
peremptory challenge to cure a trial court’s erroneous denial of a
challenge for cause does not violate any right based on the state
constitution, rule or statute. See, e.g., Green v. Maynard, 564
S.E.2d 83, 86 (S.C. 2002); State v. Verhoef, 627 N.W.2d 437, 441-42
(S.D. 2001); State v. Fire, 34 P.3d 1218, 1225 (Wash. 2001); State
v. Lindell, 629 N.W.2d 223, 250, ¶¶ 112-13 (Wis. 2001).
¶15 In Verhoef, the South Dakota Supreme Court held that
Martinez-Salazar “clearly sets aside” prior case law that any
federal constitutional right was denied when a defendant used a
peremptory challenge to remove a juror the trial court should have
struck for cause, thereby losing a peremptory challenge that could
have been used on another juror. 627 N.W.2d at 441. The court
further found no principled basis for interpreting state statutory
-9-
or constitutional provisions as granting broader rights than the
United States Constitution. Id. at 442.
¶16 Fire and Lindell both held that because the right to
peremptory challenges is not a constitutional right, a defendant’s
curative use of a peremptory challenge should be reviewed for
harmless error. Fire, 34 P.3d at 1222; Lindell, 629 N.W.2d at 250,
¶ 111.
¶17 In Fire, the Washington Supreme Court acknowledged
conflicting lines of Washington appellate cases on this issue. 34
P.3d at 1222. One line of cases held that even though no biased
juror sat on a trial, “prejudice occurs in the deprivation of one
peremptory challenge to which a defendant is entitled.” Id. at
1222-23 (citing State v. Stentz, 70 P. 241 (Wash. 1902)). Another
line of cases held that when a defendant uses a peremptory
challenge to cure a trial court’s error, a further showing of
prejudice is needed before reversal is required. Id. Relying on
Martinez-Salazar, the Fire court held that
if a defendant through the use of a peremptory challenge
elects to cure a trial court’s error in not excusing a
juror for cause, exhausts his peremptory challenges
before the completion of jury selection, and is
subsequently convicted by a jury on which no biased juror
sat, he has not demonstrated prejudice, and reversal of
his conviction is not warranted.
Id. at 1225.
¶18 Similarly, the Wisconsin Supreme Court adopted Martinez-
Salazar and overruled State v. Ramos, 564 N.W.2d 328 (Wis. 1997),
-10-
a case that had established a rule similar to Huerta’s. Lindell,
629 N.W.2d at 236, ¶ 53, 245, ¶¶ 91-93, 252, ¶ 120. In its
discussion, the Lindell court stated the following: “Another
disturbing element of the Ramos decision is that it requires a new
trial in cases where the trial was nearly perfect and the verdict
is unquestionably sound. Yet, we examine error in other situations
- both statutory and constitutional - for harmful effect.” 629
N.W.2d at 249, ¶ 107 (footnotes omitted).
¶19 To be sure, a few courts have rejected Martinez-Salazar.
See, e.g., People v. Lefebre, 5 P.3d 295, 307 (Colo. 2000)
(rejecting both Ross and Martinez-Salazar, and holding that “[o]ur
decisions have consistently recognized that, under Colorado law, a
defendant suffers reversible prejudice if he is forced to use a
peremptory challenge to remove a juror whom the trial court failed
to remove for cause and he exhausts his peremptory challenges”);
Gamble v. Commonwealth, 68 S.W.3d 367, 374 (Ky. 2002) (holding,
without discussing Martinez-Salazar, that prejudice is presumed
when a defendant is forced to exhaust his peremptory challenges
against prospective jurors who should have been excused for cause);
Brown v. Commonwealth, 533 S.E.2d 4, 8 n.2 (Va. Ct. App. 2000)
(forcing a defendant to use a peremptory challenge to remove a
juror the trial court should have struck for cause is prejudicial
error because the defendant is denied his statutory right to
exercise his full complement of peremptory strikes on a panel free
-11-
from members who should have been struck for cause).
¶20 Nevertheless, a majority of state courts, both before and
after Martinez-Salazar, hold that the curative use of a peremptory
challenge violates neither a constitutional right, nor a rule -
based or statute - based right. These courts require a showing of
prejudice before a case will be reversed when a defendant uses a
peremptory challenge to remove a juror the trial court should have
excused for cause.
III.
¶21 The question then becomes whether Arizona should join
those states that have adopted the principles of Ross and Martinez-
Salazar, and require a showing of prejudice before reversing an
otherwise valid criminal conviction. We conclude we should for two
reasons. First, requiring such a showing would be consistent with
the early Arizona case law that addressed this issue. Second, such
a rule would be consistent with two provisions of our constitution
and with Arizona’s harmless error statute. We first review the
Arizona case law that examined a defendant’s curative use of a
peremptory challenge.
A.
¶22 For more than fifty years this court consistently held
that a trial court’s erroneous denial of a challenge for cause was
technical error, not subject to reversal in the absence of
-12-
prejudice to the defendant.4 The earliest case that addressed the
issue was Encinas v. State, 26 Ariz. 24, 221 P. 232 (1923). In
that case, the defendant used five peremptory challenges to dismiss
five potential jurors the trial court failed to dismiss for cause.
Id. at 27, 221 P. at 233. In rejecting the defendant’s claim of
error, the court stated:
The important thing is that it does not appear that an
objectionable juror was forced upon the defendant . . . .
Even though the court may have erred in disallowing the
five, or some of the five, challenges made by defendant
for cause and urged on this appeal as erroneous, the
record disclosing that the twelve jurors who served were
not disqualified, such disallowances did not amount to
prejudicial error, and would not warrant a reversal.
Id. at 29, 221 P. at 233 (citations and internal quotations
omitted). In reaching its conclusion, the court relied primarily
on Arizona’s constitutional harmless error provision, also known as
the substantial justice provision. See Ariz. Const. art. 6, § 22,
amended by Ariz. Const. art. 6, § 27.5 That provision provides
4
The court also uniformly held that other errors in jury
selection did not require reversal in the absence of prejudice.
See, e.g., Sam v. State, 33 Ariz. 383, 399, 265 P. 609, 615 (1928)
(holding that a trial court’s mistaken denial of a challenge to a
jury panel because certain potential jurors were mistakenly not
included in the venire was not reversible error because there was
no showing of prejudice to the defendants); Lawrence v. State, 29
Ariz. 247, 256-57, 240 P. 863, 867 (1925) (holding that even though
the jury list from which the petit jury was selected was improperly
prepared in violation of the law, the conviction would not be
reversed in the absence of a showing that the jury that decided the
case was not fair and impartial).
5
The provision was renumbered in 1960. For convenience, in
the rest of this opinion we will refer to the current section
number. The wording is the same.
-13-
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.” Id. The court also relied on
the Revised Statutes of Arizona, Penal Code § 1170 (1913), which
declared in part that no “criminal case shall be reversed for
technical error in pleading or proceedings when upon the whole case
it appears that substantial justice has been done.”
¶23 Following Encinas, this court twice held that a trial
court’s erroneous ruling on whether a juror was qualified to sit
was not grounds for reversal in the absence of prejudice to the
defendant. In Kinsey v. State, the court held that “[t]he
exclusion of a juror by the court, even though erroneous, is of
itself never a ground for a reversal, for the defendant is not
entitled to have his case tried by any particular juror, but merely
by twelve who are properly qualified and impartial.” 49 Ariz. 201,
209-10, 65 P.2d 1141, 1145 (1937). And, in Conner v. State, the
court, citing Article 6, Section 27, held that the erroneous denial
of a challenge for cause, and the defendant’s subsequent use of a
peremptory challenge to remove that juror, did not require reversal
when a fair and impartial jury decided the case. 54 Ariz. 68, 74-
75, 92 P.2d 524, 527 (1939). The court reasoned that if the jury
is lawful, the defendant’s constitutional right to a trial by an
impartial jury has been satisfied, “even though some of the formal
provisions of the law regarding the manner of their selection may
-14-
have been disregarded.” Id. at 75, 92 P.2d at 527. The court
concluded that the “defendant is not entitled to be tried by any
particular jury, but merely by one which is fair and impartial.”
Id. Moreover, “formal rules of law regarding formation of a jury
are intended to secure this kind of a jury, and have no other
purpose.” Id. at 74-75, 92 P.2d at 527.
B.
¶24 The rule established by Encinas, Kinsey, and Conner was
the rule until Wasko v. Frankel, 116 Ariz. 288, 569 P.2d 230
(1977). In a civil case, this court, for the first time, ruled
that a party’s use of a peremptory challenge to remove a juror the
trial court should have removed for cause was reversible error even
in the absence of prejudice. Id. at 290, 569 P.2d at 232. The
court never mentioned Encinas, Kinsey, or Conner. Instead, the
court relied upon a Utah case to justify its holding.
¶25 The case relied upon by the Wasko court, Crawford v.
Manning, abandoned long-standing Utah precedent and established a
new rule, without explaining why it was doing so and with very
little analysis. 542 P.2d 1091, 1093 (Utah 1975). In that case,
the Utah Supreme Court held that a defendant should not be
compelled to “waste” a peremptory challenge to obtain a lawful
jury, and that the refusal to strike a juror for cause was
“prejudicial error” requiring automatic reversal. Id. However, in
1994, the Utah Supreme Court, citing Ross, overruled Crawford in
-15-
State v. Menzies, 889 P.2d at 398. The Menzies court held that
“[t]o prevail on a claim of error based on the failure to remove a
juror for cause, a defendant must demonstrate prejudice, [by]
show[ing] that a member of the jury was partial or incompetent.”
Id.
¶26 The only Arizona cases cited by Wasko involved juries
that were not lawfully constituted. In State v. Thompson, the
defendant used peremptory challenges to strike three jurors, but
because of an error by the court clerk, those jurors actually
served on the jury that decided the case. 68 Ariz. 386, 389-91,
206 P.2d. 1037, 1038-40 (1949). The court acknowledged its prior
rulings that a conviction would not be reversed for “mere technical
errors or defects appearing in the record which do not affect the
substantial rights of the accused.” Id. at 390-91, 206 P.2d at
1040. But the court concluded that when a defendant is unlawfully
deprived of the peremptory challenges he exercised, the defendant
is deprived of a substantial right, and the jury that decided the
case was unlawfully constituted. Id. at 391-92, 206 P.2d at 1040.6
Hence, under such circumstances, a defendant is prejudiced because
6
In reaching its conclusion, the court disapproved of an
earlier decision, Brough v. State, 55 Ariz. 276, 101 P.2d 196
(1940), which held that a trial court’s mistake in giving the
defendant fewer peremptory challenges than the law allowed did not
prejudice the defendant under the substantial justice provision.
State v. Thompson, 68 Ariz. 386, 391-92, 206 P.2d 1037, 1040
(1949). The court, however, expressly acknowledged the continuing
validity of Kinsey and Conner. Id.
-16-
“an objectionable juror was forced upon the defendant.” Encinas,
26 Ariz. at 29, 221 P. at 233.
¶27 Huerta relied to a great extent on Wasko in applying the
automatic reversal rule to criminal cases. 175 Ariz. at 265, 855
P.2d at 779. But as discussed above, Wasko principally relied on
a questionable Utah case, which was subsequently overruled in light
of the Supreme Court’s decision in Ross. Consequently, the “long
line of Arizona authority” relied upon by Huerta, 175 Ariz. at 265,
855 P.2d at 779, which was never very lengthy, no longer remains
authoritative.
C.
¶28 In light of these developments, we conclude the curative
use of a peremptory challenge should be subject to harmless error
review. In other words, a defendant in a criminal case must show
prejudice. We base this conclusion on two factors. First, most
trial error, and even most constitutional error, is reviewed for
harmless error. Second, the Arizona Constitution and the Arizona
harmless error statute obligate us to review trial error in
criminal cases under a harmless error standard.
¶29 “[V]irtually any error, under particular circumstances,
can be harmless.” State v. Harrison, 195 Ariz. 1, 6, ¶ 21, 985
P.2d 486, 491 (1999) (McGregor, J., dissenting). As pointed out by
the Wisconsin Supreme Court in Lindell, numerous instances exist in
which constitutional violations are subject to harmless error
-17-
analysis:
Improper comment on the defendant’s failure to testify;
admission of evidence obtained in violation of the Fourth
Amendment; admission of evidence obtained in violation of
an accused’s right to counsel; admission at trial of an
out-of-court statement of a non-testifying codefendant in
violation of the Sixth Amendment’s Confrontation Clause;
admission of evidence at the sentencing stage of a
capital case in violation of the right to counsel;
erroneous use during trial of defendant’s silence
following Miranda warnings; a restriction on a
defendant’s right to cross-examine in violation of the
Sixth Amendment’s Confrontation Clause; denial of the
right to present exculpatory evidence; denial of the
right to be present during a trial proceeding; denial of
an indigent’s right to appointed counsel at a preliminary
hearing; a jury instruction containing an
unconstitutional rebuttable presumption; a jury
instruction containing an unconstitutional conclusive
presumption; an unconstitutionally overbroad jury
instruction in a capital case; the submission of an
invalid aggravating factor to the jury in a capital
sentencing proceeding, and even a misdescription of an
element of the offense.
Lindell, 629 N.W.2d at 249 n.16, ¶ 107 (quoting 5 Wayne R. LaFave,
Criminal Procedure § 27.6(d) (2d ed. 1999)(footnotes omitted)). If
important constitutional errors are subject to harmless error
review, then, logically, a trial court’s erroneous denial of a
challenge for cause and the defendant’s subsequent use of a
peremptory challenge to cure that error should be subject to
harmless error review.7 Cf. Rose v. Clark, 478 U.S. 570, 579
7
In contrast, structural errors require automatic reversal.
See, e.g., Arizona v. Fulminante, 499 U.S. 279, 309-10
(1991)(structural errors require reversal not because they
implicate rights abstractly deserving of some greater degree of
protection, but rather because those rights are so bound up with
the reliability of the process that courts irrebuttably presume
-18-
(1986) (“[I]f the defendant had counsel and was tried by an
impartial adjudicator, there is a strong presumption that any other
errors that may have occurred are subject to harmless-error
analysis.”).
¶30 Whether a particular error is amenable to harmless error
analysis depends upon “two distinct, though related, principles:
(1) is the error the kind of error that will likely affect the
reliability of the truth-finding process; and (2) is the truth
finding impact of the error incapable of rational assessment?”
Pizzi & Hoffman, supra at 1424-25. Curative use of a peremptory
challenge helps ensure the reliability of the truth-finding
function by excluding biased jurors. If there is no effect on
reliability, then it is irrelevant whether the “impact of the error
[is] incapable of rational assessment.” Id.
¶31 The Huerta majority declined to apply harmless error
analysis for two reasons: (1) in most cases a defendant is unable
to show the effect of the judge’s erroneous ruling for cause; and
(2) harmless error analysis would not adequately prevent erroneous
rulings for cause. 175 Ariz. at 266, 855 P.2d at 780. Neither
reason withstands scrutiny. First, when a defendant secures an
their violation had an effect on the outcome). Such errors affect
the “framework within which the trial proceeds, rather than simply
an error in the trial process itself.” Id. at 310. A defendant’s
use of a peremptory challenge to cure a trial court’s erroneous
denial of a challenge for cause is an error in the trial process,
and not an error affecting the framework of how a trial proceeds.
-19-
impartial jury, even through the curative use of a peremptory
challenge, a conviction by that jury will not have prejudiced that
defendant. See, e.g., State v. Entzi, 615 N.W.2d 145, 149, ¶ 10
(N.D. 2000); Fire, 34 P.3d at 1222; Lindell, 629 N.W.2d at 250, ¶
113. Therefore, whether the effect of a trial judge’s erroneous
ruling can be rationally assessed in such circumstances is
immaterial. Second, given the reality of jury selection, there is
no basis to support the belief that an automatic reversal rule has
any direct impact on trial judges’ rulings on challenges for cause.
As pointed out by the Court in Martinez-Salazar, the reality is
that “[t]rial courts, state and federal, rule on cause challenges
by the minute,” 528 U.S. at 310 (quoting United States v. Martinez-
Salazar, 146 F.3d 653, 661 (9th Cir. 1998) (Ryhmer, J.,
dissenting)), “often [deciding] between shades of gray.” Id. at
316. Given this reality, it seems incongruous that a defendant
should receive a new trial simply because the trial judge made a
mistake that had no impact on the reliability of the jury’s
verdict.
¶32 Arizona’s constitution and harmless error statute also
compel the conclusion that a trial court’s error in failing to
remove a juror for cause, and the defendant’s subsequent use of a
peremptory challenge to remove that juror, should be reviewed for
harmless error. Article 2, Section 24 of our constitution grants
a defendant the right “to have a speedy public trial by an
-20-
impartial jury.” But, as discussed previously, our constitution
also 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. Moreover, Arizona statutory law requires courts to review
error for prejudice. A.R.S. § 13-3987. This statute states that
“[n]either a departure from the form or mode prescribed in respect
to any pleadings or proceedings, nor an error or mistake therein,
shall render the pleadings or proceedings invalid, unless it
actually prejudiced, or tended to prejudice, the defendant in
respect to a substantial right.” Id. Huerta serves neither of
these latter two provisions of our law.
¶33 Additionally, Arizona’s constitution was amended in 1990
to include the Victims’ Bill of Rights. That amendment guarantees,
among other things, a victim’s right to “a speedy trial or
disposition and prompt and final conclusion of the case after the
conviction and sentence.” Ariz. Const. art. 2, § 2.1(A)(10)
(emphasis added). In 1991, the Arizona Legislature adopted the
Victims’ Rights Implementation Act, A.R.S. §§ 13-4401 to -4437,
affording crime victims the “basic rights of respect, protection,
participation and healing of their ordeals.” 1991 Ariz. Sess.
Laws, ch. 229, § 2 (legislative intent). Clearly, the automatic
reversal rule of Huerta thwarts a victim’s constitutional and
statutory right to a speedy resolution and finality.
-21-
¶34 Nevertheless, the Huerta majority believed that “[t]he
prejudice of having one less peremptory challenge than the other
side is enough to mandate reversal.” 175 Ariz. at 267, 855 P.2d at
781. This belief flowed from the supposition that “[t]he adversary
system demands a level playing field to work properly.” Id. at
266, 855 P.2d at 780. But given the reality of a trial court’s
rulings on challenges for cause, which are made by the minute and
are clearly discretionary, the automatic reversal rule does not
level the playing field. Instead, it tilts the field in favor of
the defendant. To illustrate, consider a case in which a trial
judge erroneously denies two challenges for cause, one requested by
the State, the other, by the defendant. Assuming both parties use
a peremptory challenge to remove the objectionable jurors, each
party will have exercised one less peremptory challenge than
provided for by Rule 18.4(c) of the Arizona Rules of Criminal
Procedure. Although the parties exercised an equal number of
peremptory challenges on jurors who were otherwise fair and
impartial, under Huerta, the defendant would automatically receive
a new trial.
¶35 Such a rule forces trial courts to retry cases previously
decided by fair juries. It is costly to the victims and to the
judicial system, and it generates public cynicism and disrespect
for the judicial system.
-22-
¶36 This case exemplifies the unnecessary cost to the system
the Huerta rule creates. Other than the issue we address here,
Hickman raised three additional issues that the court of appeals
found to be without merit. Moreover, Hickman admitted to
investigators that he had images of child pornography on his
computer at work, his home computer, and on computer diskettes he
had at home. A new trial would be an exercise of form over
substance; a new jury will reach the same result as the first. The
point of harmless error review is to avoid such incongruous
consequences.
IV.
¶37 Respect for precedent demands “that we not lightly
overrule precedent and we do so only for compelling reasons.”
Lowing v. Allstate Ins. Co., 176 Ariz. 101, 107, 859 P.2d 724, 730
(1993). Stare decisis is a doctrine of persuasion, not a rigid
requirement, but “any departure from the doctrine of stare decisis
demands special justification.” Arizona v. Rumsey, 467 U.S. 203,
212 (1984). While the phrase “special justification” defies simple
definition, it does require more than that a prior case was wrongly
decided. Hubbard v. United States, 514 U.S. 695, 716 (1995)
(Scalia, J., concurring).
¶38 The ease with which courts have abandoned precedent
corresponds to the subject matter of the case at issue. Cases may
-23-
be divided into three general categories: (1) statutory
interpretation; (2) constitutional interpretation; and (3) rules
created by the courts, such as procedural or evidentiary rules.
See Payne v. Tennessee, 501 U.S. 808, 828 (1991). When a court
proposes to abandon precedent in a case involving court-created
rules, the burden of proof is lowest; in cases involving statutory
interpretation the burden is highest. Id.; Hedlund v. Sheldon, 173
Ariz. 143, 144, 840 P.2d 1008, 1009 (1992). Court rules are
expected to change with the times, and modifying them does not
require as strong a showing as modifying substantive law. Hedlund,
173 Ariz. at 144, 840 P.2d at 1009.
¶39 We conclude that sufficiently compelling reasons exist
for overruling Huerta. First, the Huerta rule is a creation of
this court. Thus, the showing necessary to overrule it is not as
strong as it would be for overruling a prior decision interpreting
a statute. Id. Second, the rule created by Huerta is not the type
of rule that generates reliance by participants in the criminal
justice system. Rather it is a rule of fortuity. A trial judge
may or may not err when ruling on a challenge for cause. Because
a trial judge has the best opportunity to assess whether a juror
can be fair and impartial, appellate courts review such decisions
only for abuse of discretion. State v. Hoskins, 199 Ariz. 127,
139, ¶ 37, 14 P.3d 997, 1009 (2000). Given these circumstances,
Huerta’s automatic reversal rule necessarily does not compel
-24-
reliance upon it. The Huerta rule is therefore unlike the
sentencing rule discussed in State v. Lara, upon which “hundreds,
if not thousands,” of prior cases had relied. 171 Ariz. 282, 285,
830 P.2d 803, 806 (1992). Overruling Huerta rule will not cause an
upheaval in criminal jurisprudence.
¶40 Third, Martinez-Salazar clarified that peremptory
challenges have an “auxiliary” role with respect to the Sixth
Amendment right to a fair trial. Accordingly, as most
jurisdictions have decided, the auxiliary right of a peremptory
challenge should not be accorded the same weight as the
constitutional right to a fair and impartial jury, which is the
effect of the Huerta rule. See, e.g., Lindell, 629 N.W.2d at 250,
¶ 108 (concluding automatic reversal rule with respect to the
curative use of a peremptory challenge places this “‘right’ on a
pedestal above others, and it is not worthy to be there”).
Finally, as the South Dakota Supreme Court held, there is no
principled basis for interpreting a court rule governing peremptory
challenges more broadly than a federal constitutional right, “be it
due process or Sixth Amendment trial rights.” Verhoef, 627 N.W.2d
at 441.
V.
¶41 The jury that decided Hickman’s case was fair and
impartial, and the record does not reflect that he exhausted his
-25-
peremptory challenges. As a result, an objectionable juror was not
forced upon him. Therefore, we vacate that part of the court of
appeals decision that reversed based on Huerta. Because the court
of appeals found no other error, Hickman’s convictions and
sentences are affirmed.
Michael D. Ryan, Justice
CONCURRING:
____________________________________
Ruth V. McGregor, Vice Chief Justice
____________________________________
Rebecca White Berch, Justice
J O N E S, Chief Justice, specially concurring:
¶42 I write specially because of my past adherence to the
rule in State v. Huerta, 175 Ariz. 262, 855 P.2d 776 (1993). The
automatic reversal required by Huerta has been followed by this
court since 1993. The rule had certain “bright line” attraction
that gave trial judges clear direction. But it has been a rigid
rule, allowing virtually no latitude for non-prejudicial error in
-26-
jury selection and requiring retrial even in cases where the jury,
as ultimately empaneled, meets the constitutional standard of
impartiality and where substantial justice has nevertheless been
served. The practice imposed an unnecessary strain on judicial
resources. Yet, when Huerta was decided, it occurred to me that
the rule would assure closer adherence to prerequisite
constitutional standards.
¶43 In contrast, it is also true that courts among the
several states have not been united on this question. Some have
followed the rule of automatic reversal; others have not. More
recently, the United States Supreme Court issued its opinion in
United States v. Martinez-Salazar, 528 U.S. 304 (2000). The
discussion and analysis of that case in today’s principal opinion
is adequate and need not be repeated here. Suffice it to say
Martinez-Salazar appears sound as a jurisprudential matter in that
reviewing courts need simply be satisfied that each petit jury
meets the constitutional standard of impartiality, even where the
defendant has exercised a peremptory challenge to correct the trial
judge’s erroneous refusal to dismiss a potential juror for cause.
¶44 Constitutional language guaranteeing the right to trial
by an impartial jury is identical in both the federal and state
constitutions. I see no reason to expand the right in state
matters under the Arizona Constitution. It is acknowledged that
-27-
Martinez-Salazar does not answer all questions relating to the use
of peremptory challenges where the judge erroneously refuses to
strike for cause. Notwithstanding, the Supreme Court emphatically
eschews the automatic reversal rule which this court adopted in
Huerta. For these reasons, consistent with the rationale set forth
in today’s opinion, I join that opinion.
Charles E. Jones, Chief Justice
NOTE: Justice Stanley G. Feldman sat for oral argument but retired
prior to the filing of the opinion and therefore did not
participate in the opinion.
-28-