State v. Colorado

                                IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                    JUSTIN COLORADO, Appellant.

                         No. 1 CA-CR 22-0290
                           FILED 8-17-2023


          Appeal from the Superior Court in Coconino County
                        No. S0300CR202000557
                The Honorable Ted Stuart Reed, Judge

                              AFFIRMED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Brian R. Coffman
Counsel for Appellee

Coconino County Legal Defender’s Office, Flagstaff
By Joseph Adam Carver
Counsel for Appellant
                           STATE v. COLORADO
                            Opinion of the Court


                                 OPINION

Judge Andrew M. Jacobs delivered the opinion of the Court, in which Chief
Judge David B. Gass and Judge Brian Y. Furuya joined.


J A C O B S, Judge:

¶1             The Arizona Supreme Court abolished the use of peremptory
strikes in jury selection effective January 1, 2022. As a result, parties must
now rely solely upon strikes for cause in voir dire.

¶2             This appeal asks us to decide whether, in light of the 2022
amendments, we should apply the traditional abuse-of-discretion standard
to a trial court’s decision on a motion to strike a juror for cause, or whether
we should apply a de novo standard. We disagree that the 2022 amendments
suggest any modification of the traditional standard, and see no error in the
trial court’s application of it. We thus affirm the trial court’s denial of
appellant Justin Colorado’s motion to strike potential juror number eight
(Juror #8) for cause and Colorado’s conviction for first-degree murder.

             FACTS AND PROCEDURAL BACKGROUND

¶3            In July 2020, the State charged Colorado with one count of
first-degree murder, a domestic violence offense, alleging he shot and killed
his girlfriend in Flagstaff the previous month. Before trial began in May
2022, Colorado filed a motion seeking permission to exercise peremptory
strikes despite their abolition on January 1, 2022. See Ariz. Sup. Ct. Order
No. R-21-0020 (Aug. 30, 2021) (amending Arizona Rules of Criminal
Procedure 18.4 and 18.5). The court denied his motion.

¶4            The court, with the parties’ input, then prepared case-specific
questionnaires for potential jurors to complete and return before trial. See
Ariz. R. Crim. P. 16.3(c), (d)(4), 18.5(c). The urging to use case-specific
written questionnaires became part of the Arizona Rules of Criminal
Procedure at the time of the 2022 amendments, as part of a unified scheme
of changes. See Ariz. R. Crim. P. 18.5(c) cmt. to 2022 amend.; Statewide Jury
Selection Workgroup, Arizona Supreme Court Task Force on Jury Data
Collection, Practices, and Procedures, Report and Recommendations, at 3




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                          STATE v. COLORADO
                           Opinion of the Court

(2021)1 (recognizing that case-specific questionnaires “will secure better
quality information for the exercise of for-cause strikes”).          The
questionnaires here served their intended purpose by providing in-depth
information for the parties and the court to use in analyzing whether to
excuse potential jurors. Based on the questionnaire responses, the parties
agreed to dismiss 159 potential jurors for cause or hardship, and the trial
court granted the State’s motion to strike one other for cause and denied
Colorado’s for-cause motion to strike another.

¶5            After that questionnaire-driven screening, 21 potential
jurors—including Juror #8—appeared for additional voir dire. After the
court followed up with the jurors regarding their availability for trial, the
parties stipulated to remove four potential jurors for cause. The court then
allowed counsel to continue voir dire directly with those who remained.

¶6            Juror #8 indicated on her questionnaire that the domestic
violence alleged in this case and her previous work experience as a nurse at
the Coconino County Sheriff’s Office could make it difficult to serve as
juror. Upon further questioning by the prosecutor, Juror #8 explained a
trial was pending regarding an incident in which an acquaintance of hers
was allegedly killed by a former boyfriend a year earlier in Flagstaff. When
asked whether that experience “would be an issue” in being fair and
impartial, Juror #8 responded, “I don’t think so. . . . Not that I can tell.”
Defense counsel asked Juror #8 about her work experience at the Sheriff’s
Office, and she explained it would not affect her ability to serve as a juror
in this case. Defense counsel then moved to strike Juror #8 for cause. The
trial court denied the motion “at this time” subject to counsel’s further
questioning of Juror #8.

¶7             The court and counsel continued questioning Juror #8 outside
the presence of other jurors. There, she provided more details about her
relationship with the domestic violence victim in the other pending trial,
and she indicated her concern for the victim’s child in that case would
“probably [make it] hard” to serve as a juror in this case “if there were
children involved.” Regarding her prior work experience at the Sheriff’s
Office, Juror #8 said she could be fair and impartial because she “no longer
work[s] there,” and she did not recognize any names of former co-workers
on the witness list.


1 Available at https://www.azcourts.gov/Portals/74/Jury%20TF/SJS%20

Workgroup/SJSW_Final%20Report%20and%20Recommendations_11_01_
21.pdf?ver=QosXeyxN0xkk1IdwRQF-cw%3d%3d


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                           STATE v. COLORADO
                            Opinion of the Court

¶8            After questioning ended, defense counsel renewed the
motion to strike, to which the prosecutor objected. Before ruling, the trial
court asked whether the victim in this case had children. Both counsel
affirmed that she did not. “Well, with that said,” the court responded,
“[Juror #8] was quite clear that she believes she can be fair and impartial. I
don’t see anything [in] her demeanor or attitude or anything else that could
be interpreted as other than that, being a truthful statement . . . .” The court
denied the renewed motion to strike. Juror #8 served on the jury.

¶9             The only disputed issue of fact at trial was whether Colorado
acted with premeditation when he shot and killed the victim. See A.R.S. §
13-1105(A)(1) (“A person commits first degree murder if . . . [i]ntending or
knowing that the person’s conduct will cause death, the person causes the
death of another person . . . with premeditation . . . .”). The jury deliberated
and returned a guilty verdict on the first-degree charge, finding it was a
domestic violence offense. At sentencing, the court imposed a mandatory
natural life prison term. Colorado timely appealed. We have jurisdiction
under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1), 13-4031, and 13-4033(A).

                               DISCUSSION

I.     Colorado’s Argument that the Standard of Review for For-Cause
       Strikes Should Change is Unpersuasive.

       A.     Since 1864, Arizona Appellate Courts Have Deferred to
              Trial Court Assessments of Whether Potential Jurors Can
              Fairly Sit in Judgment, Because That Question Is Fact-
              Intensive.

¶10            Colorado frames his challenge to the denial of his motion to
strike Juror #8 for cause as an issue of standards of review. He asks whether
Arizona law should continue to apply abuse-of-discretion as the standard
for reviewing the propriety of strikes for cause. See State v. Allen, 

, 307 ¶¶ 41, 47 (2022) (applying abuse-of-discretion standard). He urges
us to apply instead a de novo standard that accords no such deference, and
is typically used to review a trial court’s rulings on matters of law or mixed
questions of fact and law. See State v. Mendoza-Ruiz, 

, 475 ¶ 6
(App. 2010) (“[W]e review the superior court’s legal decisions de novo.”).

¶11            Colorado argues Juror #8’s answers to certain questions make
it objectively clear she was unable to judge his case without bias. While
doing so, he likewise advocates for a new, assertedly more objective



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                           STATE v. COLORADO
                            Opinion of the Court

standard that he argues would not unduly defer to a juror’s subjective
assertions that they lack disqualifying biases.

¶12           Colorado emphasizes, accurately, that Arizona case law often
discusses whether to exclude a juror with reference to the juror’s assurances
of impartiality. He then argues that an exclusively for-cause system of
strikes is poorly served by caselaw relying (heavily, he claims) on juror
assurances of impartiality, concluding that trial courts now lack “articulable
legal standards” to guide their rulings on motions to strike for cause. For
this reason, he argues Arizona courts should henceforth review such strikes
de novo.

¶13             We reject Colorado’s argument in part because it disregards
160 years of Arizona legal history commending to the trial court—not jurors
themselves—the duty and authority to assess and address juror bias. That
the trial court must excuse any juror who cannot act with impartiality has
been part of Arizona law since the Howell Code’s enactment in 1864. See
e.g., Howell Code, ch. XI, §§ 319, 322 (1864)2; see Rev. Stat. Ariz. Territory,
Penal Code §§ 910(13), 915 (1901); see also Leigh v. Territory, 

(1906) (“[I]t is . . . for the court to determine whether or not [the] knowledge
or information [a juror has about the case] has in fact brought about in the
juror a state of mind which will prevent him from acting with entire
impartiality.”); Brady v. Territory, 

 (1900) (“The challenge [for
cause] raised an issue of fact upon which the court had to determine
whether the nature and strength of the opinion formed [by the juror] was
such as would prevent the juror from acting with entire impartiality,” and
“[t]he finding of the trial court upon that issue should not be set aside by
the appellate court unless the error is manifest.”); Ariz. Code §§ 44-1313(j),
-1314 (1939); Ariz. Rev. Code §§ 5035(13), 5036 (1928); Rev. Stat. Ariz., Penal
Code §§ 1023(13), 1024–25 (1913); see State v. Johnson, 

, 197–99
¶¶ 113–21 (2019); State v. Tison, 

 (1981); State v. Evans, 

 (1978); State v. Narten, 

, 121–22 n.1 (1965); Burnett
v. State, 

 (1928); see also Ariz. R. Crim. P. 219–20 (1956);
Ariz. R. Crim. P. 18.4(b) 2018 cmt. (noting that the contemporary
description for the standard first appeared in the 1973 Rules).

¶14         The current procedural rule governing challenges for cause is
Arizona Rule of Criminal Procedure 18.4(b), which provides in relevant

2 Territorial and historical statutes, codes, and rules are archived by the

Arizona State Library, Archives and Public Records, a division of the
Arizona Secretary of State, and made available through the Arizona
Memory Project, https://azmemory.azlibrary.gov/.


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                           STATE v. COLORADO
                            Opinion of the Court

part that: “The court, on motion or on its own, must excuse a prospective
juror or jurors from service in the case if there is a reasonable ground to
believe that the juror or jurors cannot render a fair and impartial verdict.”
The Arizona Supreme Court left this rule substantively unchanged when it
eliminated peremptory challenges and revised related procedures for jury
selection, strongly indicating it did not intend to change the law
surrounding reasonable grounds for excusal.

¶15           Throughout Arizona’s history, its courts have treated the trial
court’s determination of what requires excusal as a factual question calling
for deference to the trial court. In 1900, the Arizona Supreme Court wrote
that:

      The challenge [for cause] raised an issue of fact upon which
      the court had to determine whether the nature and strength
      of the opinion formed [by the juror] was such as would
      prevent the juror from acting with entire impartiality. The
      finding of the trial court upon that issue should not be set aside by
      the appellate court unless the error is manifest.

Brady, 

 (emphasis added).

¶16           Six years later, the Arizona Supreme Court again underscored
the fact-intensive nature of such an inquiry, calling it “a question which
must be left largely to the wise discretion of the trial court” so that “the
determination of the trial court in that regard will not be disturbed on
appeal, unless it appears to be clearly erroneous.” Leigh, 

.
And as noted above, in a decision postdating the abolition of peremptory
challenges, the Arizona Supreme Court approvingly described the
standard of review applicable to challenges to for-cause strikes as a
deferential standard: “Reviewing courts defer to the trial judge’s
perceptions of the juror and question only whether the judge’s findings are
supported by the record.” See Allen, 253 Ariz. at 307 ¶ 47. As such,
Colorado’s arguments are contrary to our appellate courts’ longstanding
view, still enshrined in Arizona law, that the trial court is in the best
position to perceive and assess jurors and any biases the jurors may harbor.
See id.

      B.     The 2022 Amendments Did Not Alter the Standard of
             Review, While Making the Trial Court’s Inquiry in Voir
             Dire About Bias Even More Fact-Intensive.

¶17        We also reject Colorado’s position because the Arizona
Supreme Court did not adopt a de novo standard of review when enacting


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                            STATE v. COLORADO
                             Opinion of the Court

the 2022 amendments to Rules 18.4 and 18.5, which it could easily have
done. See Pierce v. Underwood, 

 (1988) (“For some few trial
court determinations, the question of what is the standard of appellate
review is answered by relatively explicit statutory command,” however,
“[f]or most others, the answer is provided by a long history of appellate
practice.”). To the contrary, the amended Rules appear to contemplate the
continued application of the abuse-of-discretion standard by requiring trial
courts to conduct a holistic, fact-intensive inquiry when evaluating a juror’s
self-assurances of fairness, as they “consider the totality of a prospective
juror’s conduct and answers.” Ariz. R. Crim. P. 18.5(h) (emphasis added).

¶18            Colorado’s argument is also unpersuasive because it would
undercut one of the lynchpins of the 2022 amendments. In eliminating
peremptory challenges, the Arizona Supreme Court was careful to put in
place structures that would provide additional data from which the trial
court could investigate actual bias in jurors. As noted, Rule 18.5(c) now
urges the use of “case-specific written questionnaire[s]” to provide ample
data concerning potential jurors. Here, their use led to the excusal of a
significant number of potential jurors, demonstrating the efficacy of this
tool. But the Arizona Supreme Court also urged wide-ranging and open-
ended discussions with potential jurors to allow for the most accurate
assessment of bias by the trial court. Rule 18.5(f) requires the trial court to
“conduct a thorough oral examination of the prospective jurors and control
the voir dire examination.” The 2022 Comment to Rule 18.5(f) goes further:

       When feasible, the court should permit liberal and
       comprehensive examination by the parties, refrain from
       imposing inflexible time limits, and use open-ended
       questions that elicit prospective jurors’ views narratively. The
       court should refrain from attempting to rehabilitate prospective
       jurors by asking leading, conclusory questions that encourage
       prospective jurors to affirm that they can set aside their opinions and
       neutrally apply the law.

(Emphasis added.)

¶19           The revised rules thus allow trial courts to develop a more
robust factual record. Our trial courts have more facts to assess, more
dialogue to consider before empaneling a juror, and more information from
which to assess credibility before empaneling a juror. All those facts make
motions to dismiss a juror for cause even more fact-specific than before.
This robust factual record underscores the need for continued abuse-of-
discretion review. The Comment to Rule 18.5(f) provides an especially


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                           STATE v. COLORADO
                            Opinion of the Court

strong basis for rejecting Colorado’s position. Its text discourages rote
affirmations that a prospective juror is unbiased. This addresses Colorado’s
concern that Arizona law is somehow standardless because it reflects
undue deference to unpersuasive, subjective assurances of no bias by
potential jurors. Thus, Colorado’s proposed de novo standard of review is
not only contrary to our state’s longstanding practice of deferring to the
trial court but also contrary to the spirit, if not the letter, of the 2022
amendments the Arizona Supreme Court enacted.

¶20             Colorado also incorrectly suggests longstanding but deleted
comments to Rule 18.4 support his argument against placing weight on
potential jurors’ assurances that they can be fair. He cites the pre-2022
comment to Rule 18.4(b), which provides that a party may base a challenge
for cause on a “showing of facts from which an ordinary person would
i[nfer] a likelihood of predisposition in favor of one of the parties.” Though
we agree the trial court remains free to infer bias from facts suggesting
predisposition, the 2022 amendments removed the comment on which he
relies. The 2022 amendments suggest the trial court is free to infer bias in
jurors on any reasonable basis, not just the fifteen grounds suggesting bias
previously enumerated in the deleted comment (some of which originated
in Section 319 of the Howell Code).

       C.     Colorado’s    Disagreement       With   Any      Perceived
              Rehabilitation of Juror #8 Provides No Basis to Change the
              Standard of Review.

¶21             Colorado’s complaint about the voir dire is, to some extent,
one about rehabilitation. Here, the trial court learned certain facts
concerning Juror #8’s potential bias from her questionnaire responses and,
given the questions they raised, engaged in colloquies with her before
determining that she could sit fairly as a juror. The mere fact of
rehabilitation provides no reason to change standards of review. Either the
trial court or counsel may attempt through further individual questioning
to seek more information to explore potential bias, which may rehabilitate
a juror or strengthen the case to disqualify them. See Ariz. R. Crim. P. 18.5(f)
(“Upon request, the court must allow the parties sufficient time, with other
reasonable limitations, to conduct a further oral examination of the
prospective jurors.”). This further inquiry is not only permitted but is
desirable because “[a] juror’s preconceived notions or opinions about a case
do not necessarily render that juror incompetent to fairly and impartially
sit in a case.” State v. Martinez, 

, 459 ¶ 28 (2000). Indeed, Rule
18.5(h) requires trial courts, when ruling on a motion to strike for cause, to
elicit information from the subject juror relevant to the motion and to


                                       8
                            STATE v. COLORADO
                             Opinion of the Court

consider “the totality of a prospective juror’s conduct” when determining
whether the juror can be fair and impartial. Ariz. R. Crim. P. 18.5(g), (h).

¶22             Addressing how this additional inquiry works, Colorado
claims a juror’s personal assurances of his or her impartiality are
insufficient, standing alone, to reveal the juror’s biases or preconceived
notions of a defendant’s guilt. We agree. But Arizona law already
recognizes that insufficiency. See, e.g., State v. Jimenez, 2 CA-CR 2022-0062,
at *2 ¶8, 

 (Ariz. App. July 13, 2023) (“[T]he court need not
accept the subjective beliefs of challenged venirepersons regarding their
ability to remain unbiased.”); State v. Smith, 

 (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,” because
“[t]hese issues are not to be resolved by ‘magic words.’”). Thus, as noted,
trial courts must evaluate a juror’s assurances of impartiality in the context
of the totality of factors under consideration by the trial court, including a
juror’s demeanor and conduct. State v. Glassel, 

, 48 ¶ 50 (2005)
(“Trial judges are permitted to determine a potential juror’s credibility
when deciding whether to strike a juror for cause.”). If the juror’s
demeanor, conduct, or other factors give the court a reason to disbelieve his
or her personal assurances of serving fairly and impartially, the court
should strike the juror for cause. See State v. Burns, 

, 13 ¶ 23 (2015)
(“A trial judge must consider the entirety of a prospective juror’s demeanor
and behavior; if a juror’s promise to uphold the law is coupled with
ambiguous statements and uncertainty, the trial judge may strike the juror
for cause.”). Failing to do so risks reversible error if the record shows the
juror ultimately selected should have been stricken.

¶23            The trial court’s closeness to juror demeanor drives our
deference to its factual determinations. Arizona law commends to the trial
court the task of weighing credibility when a juror gives assurances of
impartiality. Trial courts observe and assess the juror personally, while we
only read a record. We, therefore, appropriately defer to the trial court’s
credibility findings when ruling on motions to strike, just as we do with a
factfinder’s credibility determinations in other contexts. See Smith, 

 (“What the juror actually conveyed in the moment of speaking is so
dependent on demeanor and intonation as to be inaccessible to a reviewing
court,” and “[t]hus, this is a paradigm case for deference to the trial judge,
who had the opportunity to see and hear her speak.”); see also State v.
Gonzalez–Gutierrez, 

 (1996) (stating trial court determines
credibility of witnesses at pre-trial suppression hearing); State v. Williams,

, 231 ¶ 6 (App. 2004) (addressing claim of insufficient evidence
and noting that “[a]lthough the record contains some conflicting evidence,


                                        9
                          STATE v. COLORADO
                           Opinion of the Court

it was for the jury to weigh the evidence and determine the credibility of
the witnesses”). Thus, the deferential abuse-of-discretion standard is
appropriate for reviewing a decision on a motion to strike for cause. For all
of these reasons, Colorado’s arguments that the 2022 amendments modify,
or require modification of, the standard of review for for-cause challenges
are unpersuasive.

II.   The Trial Court Did Not Abuse its Discretion By Denying
      Colorado’s Motion to Strike Juror #8 for Cause.

¶24           Applying the abuse-of-discretion standard to the trial court’s
denial of Colorado’s motion to strike Juror #8 for cause, we find no error.

¶25            The trial court and the parties composed questionnaires for
the potential jurors to complete before appearing in court. Complying with
Rule 18.5(f) and its 2022 comment, the trial court also posed open-ended
questions to Juror #8, and the trial court gave the parties a sufficient
opportunity to question Juror #8 outside the presence of the other potential
jurors. Thus, as a threshold question, the trial court complied with the
procedural rules governing voir dire, as amended.

¶26           The extended individual voir dire of Juror #8 revealed
objective information that mitigated potential biases suggested by her
questionnaire. For example, although she initially disclosed a domestic
violence incident that resulted in the death of her friend, Juror #8 revealed
during further questioning that she and the victim were not “close
friend[s].” Additionally, Juror #8 explained that her potential inability to
serve fairly stemmed from her concern for the victim’s surviving son.
Given Juror #8’s concern, the trial court confirmed that in Colorado’s case,
there was no surviving child to provoke the potentially biased response
about which Juror #8 warned.

¶27           In a similar vein, Juror #8 gave context to her questionnaire
disclosure of her past employment at the Sheriff’s Office. Juror #8
explained she left that job before Colorado was arrested in this case, and
thus had no personal interaction with him. She also confirmed that none of
the hospital employees she worked with appeared on the witness list in this
case.

¶28           After using case-specific questionnaires, allowing further
questioning of Juror #8 by counsel, and posing open-ended questions to
Juror #8 — all steps called for in the 2022 amendments — the trial court
denied Colorado’s motion to strike. In doing so, it found Juror #8 “was
quite clear that . . . she can be fair and impartial” and nothing in her


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                           STATE v. COLORADO
                            Opinion of the Court

“demeanor or attitude or anything” indicated any concerns that her
assurances were untruthful. Colorado points to nothing in the record that
counters the court’s finding that Juror #8’s assurances of impartiality were
credible. See State v. Acuna Valenzuela, 

, 209 ¶ 21 (2018) (stating
rule that a “party asserting that the trial court erred in denying a motion to
strike a juror for cause has the burden of establishing that the juror is
incapable of rendering a fair and impartial verdict”) (quoting State v. Lavers,

 (1991)).

¶29           Significantly, defense counsel also expressly noted Juror #8
was “thoughtful” and “clearly has been thinking long and hard about this.”
This reasonable concession well captures the record we see on review —
one in which a substantial colloquy unpacked the thoughts of a juror who
shared potentially concerning information by questionnaire. The trial court
conducted the very colloquy the 2022 amendments urged, which allowed
the court to assess whether Juror #8 should have been dismissed for cause
under Rule 18.4(b). Because in this case the trial court that met, questioned,
and listened to Juror #8 had a logical and factual basis to find her able to
render a fair and impartial verdict, we see no basis to conclude the trial
court abused its discretion in denying Colorado’s motion to strike Juror #8
for cause, and affirm.

                                CONCLUSION

¶30             The elimination of peremptory challenges in Arizona did
nothing to alter the abuse-of-discretion standard of review that applies to a
trial court’s ruling on a motion to strike a potential juror for cause. The trial
court here did not abuse its discretion in denying Colorado’s motion to
strike Juror #8. We affirm Colorado’s conviction and sentence.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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