SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0189-PR
Appellee, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-CR 08-0051
ANGEL ELEUTERIO DIAZ, )
) Pima County
Appellant. ) Superior Court
) No. CR20002597
)
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Pima County
The Honorable Howard Hantman, Judge
AFFIRMED
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Opinion of the Court of Appeals, Division Two
221 Ariz. 209, 211 P.3d 1193 (App. 2009)
VACATED
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TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Diane L. Hunt, Assistant Attorney General Tucson
Attorneys for State of Arizona
ROBERT J. HIRSH, PIMA COUNTY PUBLIC DEFENDER Tucson
By David J. Euchner
Attorney for Angel Eleuterio Diaz
________________________________________________________________
P E L A N D E R, Justice
¶1 After a jury trial, Angel Diaz was convicted of first
degree burglary, attempted armed robbery, and aggravated
assault. On appeal, relying on the reporter’s transcript
reflecting that only eleven jurors were polled following return
of the verdicts, Diaz successfully argued that his right to a
twelve-person jury had been violated. We disagree and conclude
that Diaz failed to establish any legal error. Accordingly, we
vacate both the opinion and supplemental opinion below and
affirm his convictions.
I
¶2 On the first day of Diaz’s trial, the trial court
empanelled fifteen jurors. Two days later, after closing
arguments, three jurors were selected as alternates and excused.
The trial court instructed the remaining jurors that their
verdicts “must be unanimous” and that “[a]ll 12 of you must
agree on a verdict.” The jurors began deliberating that
afternoon.
¶3 The jurors resumed deliberations the next morning
under the charge of the court’s bailiff, and that afternoon the
foreperson informed the court that the jury had reached its
verdicts. After the jurors were brought into the courtroom, the
trial court stated, “[t]he record may show the presence of the
jury.” The clerk then read the verdicts from the verdict forms,
which the jury foreperson had signed on behalf of “the Jury,
duly impaneled and sworn.” The jury found Diaz guilty of the
aforementioned charges and not guilty of several others.
2
¶4 After reading the verdicts, the clerk asked: “Members
of the Jury, are these the verdicts and the verdicts of each of
you?” The jurors, in unison, answered “[y]es.” The court then
asked the clerk to poll the jurors by number, and each
responding juror confirmed the verdicts.
¶5 The reporter’s transcript reflects that only eleven
jurors were asked and responded to the polling question.
Specifically, the transcript omits any mention of juror number
six, one of the twelve jurors designated to serve and decide the
case. Diaz’s counsel did not object to any aspect of the jury-
polling process or question whether all twelve jurors were
present or responded affirmatively when polled. Nor does the
record reflect that the prosecutor, the bailiff, the clerk, the
other jurors, or the judge noticed or mentioned a juror’s
absence or failure to respond to the poll.
¶6 Diaz appealed, claiming a violation of his right to a
twelve-person jury. In a split opinion, the court of appeals
agreed and reversed Diaz’s convictions, finding “fundamental,
prejudicial error.” State v. Diaz, 221 Ariz. 209, 214 ¶ 15, 211
P.3d 1193, 1198 (App. 2009).
II
¶7 It is uncontested that Diaz was entitled to a twelve-
person jury because he faced a possible sentence of thirty years
or more in prison. See Diaz, 221 Ariz. at 212 ¶¶ 7-8 & n.2, 211
3
P.3d at 1196 & n.2; see also Ariz. Const. art. 2, § 23; Ariz.
Rev. Stat. (A.R.S.) § 21-102(A) (2001). “[T]he crux of Diaz’s
argument,” the court of appeals stated, was that all twelve
jurors had not “participated in deliberating and determining his
guilt.” Diaz, 221 Ariz. at 212 ¶ 10, 211 P.3d at 1196. Based
“[o]n the record before [it],” the court agreed, stating “the
facts that the trial court noted the presence of ‘the jury’ on
the day it resumed deliberations and reached its verdicts and
that the polled jurors affirmed their verdicts were unanimous
say nothing about the number of jurors present.” Id. at 212-13
¶¶ 11, 13, 211 P.3d at 1196-97. Relying on State v. Henley, 141
Ariz. 465, 687 P.2d 1220 (1984), and reviewing for fundamental
error because Diaz had not raised the issue below, the court
reversed the convictions based on “denial of Diaz’s right to a
twelve-person jury.”1 Id. at 211-12, 214 ¶¶ 6-7, 15, 211 P.3d at
1195-96, 1198.
¶8 Judge Howard dissented, stating “[t]he flaw in Diaz’s
argument is that the transcript of the polling proves only a
1
In State v. Soliz, 223 Ariz. 116, 117 ¶ 1, 219 P.3d 1045,
1046 (2009), this Court departed from Henley and found no
violation of Article 2, Section 23 of the Arizona Constitution
“when a sentence of thirty years or more is authorized by law
for the crimes charged, the case proceeds to verdict with a jury
of less than twelve people without objection, and the resulting
[and lawful] sentence is less than thirty years.” That
principle does not apply here, however, because the parties
agreed twelve jurors were required and the court empanelled a
jury of that size.
4
defect in the polling, or possibly in the transcript, but it
does not reflect a defect in the deliberations.” Id. at 215
¶ 19, 211 P.3d at 1199 (Howard, J., dissenting). According to
the dissent, “[t]he reasonable inference is that twelve jurors
decided Diaz’s guilt and juror number six was not polled.” Id.
Judge Howard concluded Diaz had not established fundamental
error and, therefore, his convictions and sentences should be
affirmed. Id. at ¶ 21.
¶9 About one week after the court of appeals issued its
opinion, the court reporter filed a “corrected transcript,”
showing that juror number six had answered “yes” when polled.
In an accompanying affidavit, the reporter averred that she had
mistakenly failed to transcribe the polling of juror number six
from her notes. The State moved for reconsideration, urging the
court to vacate its prior opinion and affirm Diaz’s convictions
because twelve jurors had, in fact, decided his guilt. In a
supplemental opinion, the court declined to reconsider its
ruling and denied the State’s belated motion to supplement the
record on appeal, concluding that “any attempt to amend the
record at this juncture is untimely.” Diaz, 221 Ariz. at 218
¶ 12, 211 P.3d at 1202 (supp. op.).
¶10 We granted review to address a recurring issue of
statewide importance that has produced conflicting results in
5
our appellate court.2 We have jurisdiction pursuant to Article
6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-
120.24 (2003).
III
¶11 “Alleged trial court error in criminal cases may be
subject to one of three standards of review: structural error,
harmless error, or fundamental error.” State v. Valverde, 220
Ariz. 582, 584 ¶ 9, 208 P.3d 233, 235 (2009). Regardless of how
an alleged error ultimately is characterized, however, a
defendant on appeal must first establish that some error
occurred.3 See State v. Henderson, 210 Ariz. 561, 568 ¶ 23, 115
P.3d 601, 608 (2005) (“To obtain relief under the fundamental
error standard of review, [a defendant] must first prove
error.”).
¶12 This case is somewhat unusual in that it involves a
dispute about what actually happened in the trial court rather
2
See, e.g., State v. Smith, 1 CA-CR 08-0864, 2009 WL 4981844
(Ariz. App. Dec. 22, 2009) (mem. decision); State v. Hutchison,
2 CA-CR 2008-0213, 2009 WL 693336, at *3 ¶¶ 8-11 (Ariz. App.
Mar. 17, 2009) (mem. decision); State v. (Raymond) Diaz, 1 CA-CR
06-0768, 2008 WL 2791997, at *2 ¶¶ 8-11 (Ariz. App. Feb. 7,
2008) (mem. decision).
3
We now know, of course, that twelve jurors in fact
deliberated and determined Diaz’s guilt; thus, the error he
complains of did not occur. We do not consider the corrected
transcript that establishes those facts, however, because the
court of appeals denied the State’s untimely attempt to
supplement the record and we did not grant review of that issue.
6
than whether an undisputed trial record establishes legal error.
Diaz essentially asks us to determine what occurred in the trial
court by accepting his interpretation of the original jury-poll
transcript and finding that what occurred was error of
fundamental proportion. The factual predicate for Diaz’s legal
argument, however, is lacking. Diaz has failed to meet his
burden of showing that the alleged error occurred and,
therefore, we need not determine the applicable standard of
review.
¶13 In evaluating Diaz’s claim of error, we review the
entire record. See State v. Thomas, 130 Ariz. 432, 436, 636
P.2d 1214, 1218 (1981) (“If . . . error occurred, the
prejudicial nature of the unobjected-to error must be evaluated
in light of the entire record.”); see also State v. Ramirez, 116
Ariz. 259, 265-66, 569 P.2d 201, 207-08 (1977) (finding no error
when the record as a whole supported the trial court’s finding
that defendant’s waiver of Miranda rights was knowing and
voluntary). We will not reverse a conviction based on
speculation or unsupported inference. See State v. Carlson, 202
Ariz. 570, 579-80 ¶¶ 31-33, 48 P.3d 1180, 1189-90 (2002)
(rejecting argument that additional voir dire should have been
permitted because the Court was “unwilling to speculate as a
basis for reversal” of conviction); State v. Doerr, 193 Ariz.
56, 61 ¶ 18, 969 P.2d 1168, 1173 (1998) (declining to “indulge
7
in . . . guesswork” based on defendant’s speculation that the
remarks of two jurors tainted the entire panel). Rather, error
must affirmatively appear in the record. Birch v. State, 19
Ariz. 366, 370, 171 P. 135, 137 (1918) (“Cases may be reversed
in this court only where the record affirmatively shows error
prejudicial to some substantial right of a defendant . . . .”);
see also Thomas, 130 Ariz. at 436, 636 P.2d at 1218 (“Before a
finding of fundamental error can be made, it must be apparent
that error was committed by the trial court in some aspect of
the proceedings.”).
¶14 Applying these principles, we find this record does
not show that “only eleven jurors participated in the
determination of [Diaz’s] guilt.” Diaz, 221 Ariz. at 210 ¶ 1,
211 P.3d at 1194. The record contains several references to
“the jury,” which consisted of twelve persons. It also reflects
that the jurors were repeatedly instructed that their verdicts
must be unanimous and reflect agreement by “[a]ll 12” jurors.
The record does not suggest, nor does Diaz contend, that only
eleven jurors were present when those instructions were given,
and we presume the jury followed the instructions. See State v.
Ramirez, 178 Ariz. 116, 127, 871 P.2d 237, 248 (1994). Further,
nothing in the record indicates either that a juror was absent
when the court noted “the presence of the jury” immediately
before the verdicts were read or that fewer than twelve jurors
8
responded affirmatively when they answered in unison that these
were their verdicts.
¶15 The omission of any mention of juror number six from
the reporter’s original transcript of the poll is certainly
irregular and likely reflects some sort of mistake. Diaz argues
it reflects the absence of a juror, while the State contends it
merely suggests one of several other, more likely, scenarios:
(1) a polling error (i.e., juror number six, though present, was
skipped over without anyone noticing the mistake); (2) a
recording error, caused by the reporter’s failure to hear the
question to and response from juror number six; or (3) a
transcription error, caused by the reporter’s failure to
transcribe from her notes the polling of juror number six.
¶16 As Judge Howard correctly noted, however, Diaz’s
proffered theory is unfounded because “one juror’s omission from
the poll does not prove that only eleven jurors deliberated.”
Diaz, 221 Ariz. at 215 ¶ 19, 211 P.3d at 1199 (Howard, J.,
dissenting). Diaz’s theory of what actually occurred is
particularly suspect when the record reflects no comment by the
trial court, other jurors, the bailiff who was in charge of the
jury, other court staff, or counsel, that a juror was missing.
We simply cannot conclude, based solely on the omission of one
juror from the reporter’s transcript of the poll, that only
eleven jurors participated in determining Diaz’s guilt when all
9
other parts of the record indicate the presence of the entire
jury throughout the trial, deliberations, and return of the
verdicts.
¶17 When the uncorrected record is considered as a whole,
the prospects that a juror inexplicably and without notice
failed to appear on the final day when deliberations resumed or
simply vanished when the jury reentered the courtroom to return
its verdicts are the least likely explanations for why the
reporter’s transcript reflects the polling of only eleven
jurors. See Cabberiza v. Moore, 217 F.3d 1329, 1336-37 (11th
Cir. 2000) (rejecting, under similar facts, habeas corpus
petitioner’s request to “conclusively . . . presume that a juror
who was not polled did not join in the jury’s verdict,” instead
finding the most “plausible conclusion” was that “the reporter
simply failed to record the poll of the sixth juror”). And,
because Diaz bears the burden of establishing error and has
failed to do so, we need not choose among the other, more likely
explanations.
¶18 Finally, we note that this issue could have been
resolved at a much earlier stage by applying Arizona Rule of
Criminal Procedure 31.8(h).4 Once the State learned of Diaz’s
4
Rule 31.8(h) provides in part: “If any controversy arises
as to whether the record discloses what actually occurred in the
trial court, the difference shall be submitted to and settled by
the trial court.” Pursuant to the rule, an appellate court, “on
10
contention on appeal and his reliance on the reporter’s
transcript to support it, the State could and should have asked
the appellate court to employ that rule to clarify what actually
occurred during the polling process. That procedure would have
better served the goals of timely administering justice and
searching for the truth. We do not fault the court of appeals
for rejecting the State’s untimely efforts to supplement the
record after receiving that court’s opinion because the parties
bear primary responsibility for assuring the accuracy of the
record on appeal. But appellate courts may sua sponte stay an
appeal and remand the case to the superior court for
reconsideration or clarification of the record under Rule
31.8(h). We encourage parties as well as trial and appellate
courts to use this rule in appropriate circumstances to avoid
delay and waste of time and resources.
IV
¶19 We hold that Diaz failed to establish any error,
fundamental or otherwise, relating to the number of jurors who
determined his guilt. Accordingly, we vacate the court of
appeals’ opinions and affirm Diaz’s convictions and sentences.
motion or on its own initiative, may direct that [any] omission
or misstatement [in the record] be corrected, and if necessary
that a supplemental record be certified and transmitted.” The
rule “is intended to prevent major delays and confusion when
mistakes or omissions occur.” Ariz. R. Crim. P. 31.8(h) cmt.
11
_____________________________________
A. John Pelander, Justice
CONCURRING:
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Rebecca White Berch, Chief Justice
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
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Michael D. Ryan, Justice
_____________________________________
W. Scott Bales, Justice
12