State v. Urrea
State v. Urrea
Opinion of the Court
OPINION
¶ 1 After a jury trial, Francisco Urrea was convicted of transportation of a narcotic drug for sale and sentenced to a presumptive five-year prison term. On appeal, he renews arguments rejected by the trial court that the drugs found in his vehicle should have been suppressed and that the court imposed an inadequate sanction after finding a Batson
Factual and Procedural Background
¶ 2 We view the evidence in the light most favorable to upholding Urrea’s conviction. State v. Welch, 236 Ariz. 308, ¶ 2, 340 P.3d 387, 389 (App. 2014), In June 2014, a sheriffs deputy stopped Urrea’s vehicle for a traffic violation. After Urrea consented to a search, the deputy found a package containing over sixty grams of cocaine hidden in the rear cargo area of Urrea’s vehicle.
¶3 Urrea was indicted on one count of possession of a narcotic drug for sale and one count of transportation of a narcotic drug for sale. He sought suppression of the drugs before trial, arguing the “stop, seizure, search, [and] arrest” had been illegal and sought to preclude a police detective from testifying as an expert for the state. The trial court denied the suppression motion after an evidentiary hearing and heard arguments regarding the state’s expert immediately before Urrea’s trial began. The court ultimately allowed the expert to testify but precluded him from explaining the significance of a baseball cap in Urrea’s car and a tattoo on
¶ 4 During jury selection, Urrea raised a Batson challenge, arguing the state had improperly struck from the venire jurors with “Hispanic ethnic background[s].” After directing the prosecutor to identify the reasons for its strikes, the trial court denied three strikes for which it found the state had failed to provide adequate race-neutral reasons and reinstated the prospective jurors. Two of the reinstated jurors sat on the jury, which convicted Urrea of both charges after a two-day trial. The state subsequently dismissed the possession count, and the court sentenced Urrea as described above. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12—120.21(A)(1), 13-4031, and 13-4033(A)(1).
Motion to Suppress
¶ 5 Urrea first contends the trial court erred in denying his motion to suppress evidence obtained from the warrantless search of his vehicle. We review the court’s rulings on a suppression motion for an abuse of discretion, deferring to factual findings but reviewing de novo constitutional and purely legal issues. State v. Snyder, 240 Ariz. 551, ¶ 8, 382 P.3d 109, 112 (App. 2016). We consider only evidence presented at the suppression hearing and view that evidence in the light most favorable to upholding the court’s ruling. State v. Caraveo, 222 Ariz. 228, n.1, 213 P.3d 377, 378 n.1 (App. 2009).
¶ 6 At a hearing in July 2015, Deputy Nikola Zovko testified he had stopped Ur-rea’s vehicle after he observed it “merge[] over into the right-hand lane without its ton signal, causing another vehicle to abruptly slam on its brakes.” After obtaining Urrea’s license, registration, and insurance documents, the deputy asked Urrea to step out and wait at his patrol car while he conducted a records check, “[p]rimarily [as] a safety issue.” Urrea complied and throughout the stop was cooperative and friendly.
¶ 7 Before completing the traffic stop, the deputy approached Urrea’s vehicle a second time to check the Vehicle Identification Number (VIN) against the registration documents and a report he had received “from dispatch.” While doing so, he observed items in the car that suggested to him Urrea might be transporting drugs, including multiple air-fresheners and symbols on a baseball cap and tattooed on Urrea’s am associated with drug trafficking, and he asked Urrea if there were any drugs in the car. Urrea said there were not and told the deputy he “c[ould] check.” Urrea then signed a “consent to search” fom and was placed in the back of the deputy’s vehicle while the deputy and another officer searched Urrea’s car. The package of cocaine was found concealed behind the spare tire.
¶ 8 Urrea argued to the trial court that the initial stop was invalid, that Deputy Zovko illegally had “extended the detention to cheek federal [VIN] stickers,” and that the search of his vehicle had exceeded the scope of his consent. Ruling from the bench, the court concluded the traffic stop was valid, the subsequent “inspection of a VIN number [wa]s within the nomal discretion of an officer in a routine traffic stop,” and Urrea had consented to a search which “encompasse[d] all voids within the vehicle.” Although the court found “no unreasonable detention,” it noted it was “admitting the evidence as a consent search and not on any other basis.” On appeal, Urrea renews his arguments that the deputy impemissibly “ ‘detour[ed]’ from the mission of the underlying traffic stop” and the subsequent search of his vehicle was not based on “valid consent.” He does not challenge the validity of the traffic stop,
¶ 9 Regarding the duration of the stop, Urrea contends it was illegally prolonged not when the deputy returned to Urrea’s vehicle to check the VIN numbers, as he argued at the suppression hearing, but when he asked Urrea to “step out of the car and walk back to [the deputy’s] vehicle.” Because Urrea did not make this argument to the trial court, we review only for fundamental error. State v. Brown, 233 Ariz. 153, ¶ 12, 310 P.3d 29, 34 (App. 2013); see also State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008) (objection on one ground does not preserve issue on another ground). But Urrea has not argued fundamental error, and although we will not ignore such error if we see it, see State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007), Urrea has failed to show error of any kind occurred here. See also State v. Moreno-Medrano, 218 Ariz.
¶ 10 First, Urrea has not explained how his being directed to exit his vehicle while the deputy conducted a records check illegally prolonged the stop. As we have consistently held, “[l]aw enforcement officers are permitted to remove occupants from a vehicle as a safety precaution.” State v. Kjolsrud, 239 Ariz. 319, ¶ 13, 371 P.3d 647, 651 (App. 2016), citing Pennsylvania v. Mimms, 434 U.S. 106, 117 n.6, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); Newell v. Town of Oro Valley, 163 Ariz, 527, 529, 789 P.2d 394, 396 (App. 1990). And, as noted in Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), “[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop ... do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the duration of the stop.” Although the “[a]uthority for the seizure ... ends when tasks tied to the traffic stop infraction are— or reasonably should have been—completed,” Rodriguez v. United States, — U.S. -, -, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015), Urrea has provided nothing to support that either the records check or check of the VIN number illegally prolonged his detention. In fact, Rodriguez specifically permits “ordinary inquiries incident to” traffic stops, which include “cheeking the driver’s license” and “inspecting the automobile’s registration and proof of insurance.” Id. at -, 135 S.Ct. at 1615, quoting Illinois v. Caballes, 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). A check of a VIN number is a permissible inquiry sufficiently related to a traffic stop. See New York v. Class, 475 U.S. 106, 118-19, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (upholding VIN number cheeks in both windshield and doorjamb); United States v. Ramos, 194 F.Supp.3d 1134, 1167 (D.N.M. 2016) (concluding VIN inspection is lawful part of traffic stop).
¶ 11 Moreover, even had Deputy Zovko illegally prolonged the traffic stop when he asked Urrea to “step back to his patrol vehicle in order to discuss the reason for the stop,” the ensuing conversation appears to have been entirely consensual. Kjolsrud, 239 Ariz. 319, ¶ 10, 371 P.3d at 650 (“Once the time needed to complete this mission has passed, an officer ‘must allow a driver to continue on his way unless ... the encounter between the driver and the officer becomes consensual.’ ”), quoting State v. Sweeney, 224 Ariz. 107, ¶ 17, 227 P.3d 868, 873 (App. 2010). Not only did the sheriffs deputy describe Urrea as “overly friendly” during the encounter and “extremely eager to answer the questions,” but he testified Urrea had answered questions even before they could be asked.
¶ 12 Urrea nevertheless argues his consent was not voluntary because he had not been read his rights pursuant to Miranda,
Batson Remedies
¶ 13 Urrea next contends the trial court should have granted his request for a mistrial after it found the state had struck three Hispanic jurors without a sufficiently race-neutral justification for doing so. He does not, however, explain how the trial court erred in forfeiting the state’s strikes rather than employing the drastic remedy of a mistrial.
¶ 14 In Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Court held that the use of peremptory strikes to exclude potential jurors on the
¶ 15 Here, the trial court determined Ur-rea had made a prima facie case of discrimination when the state used five of its six strikes on potential jurors with “Hispanic ethnic background[s].” The state offered race-neutral reasons for the strikes, but failed to convince the court that three of the five challenged strikes were constitutionally valid.
¶ 16 Although discriminatory uses of peremptory challenges were deemed unconstitutional over three decades ago, courts have taken varied approaches to remedy Batson violations. See generally Jason Mazzone, Bat-son Remedies, 97 Iowa L. Rev. 1613 (2012) (setting out cases adopting different responses to Batson incursions). The Batson court itself addressed remedies for the constitutional violation only briefly, stating in a footnote:
In light of the variety of jury selection practices followed in our state and federal trial courts, we make no attempt to instruct these courts how best to implement our holding today. For the same reason, we express no view on whether it is more appropriate in a particular case, upon a finding of discrimination against [improperly struck] jurors, for the trial court to discharge the venire and select a new jury from a panel not previously associated with the ease, or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire.
Batson, 476 U.S. at 99 n.24, 106 S.Ct. 1712 (citations omitted).
¶ 17 The appropriateness of specific remedies has not been expanded upon in subsequent Supreme Court cases, although the federal appellate courts have generally interpreted Batson as “accord[ing] significant latitude” in the trial court’s ability to fashion an appropriate remedy. Koo v. McBride, 124 F.3d 869, 873 (7th Cir. 1997); see also McCrory v. Henderson, 82 F.3d 1243, 1247 (2d Cir. 1996) (concluding Batson error “remediable in any one of a number of ways”). In United States v. Walker, for example, the Eleventh Circuit noted that courts are encouraged to “take into account the practicalities of the situation” and stated it would not reverse the trial court’s remedy of a Batson violation absent an abuse of discretion. 490 F.3d 1282, 1294 (11th Cir. 2007). Generally, the federal appellate courts have upheld either of the two remedies identified in the Supreme Court’s Batson decision. Id. at 1294-95.
¶ 18 State courts, however, have approached remedies to Batson violations in various ways. Trial courts in South Carolina, for example, are required to select a new jury de novo when Batson violations are found. See State v. Jones, 293 S.C. 54, 368 S.E.2d 701, 704 (1987), abrogated on other grounds by State v. Chapman, 317 S.C. 302,-454 S.E.2d 317, 319 (1995).
¶ 19 In contrast, Missouri’s courts have for many years preferred reseating improperly struck jurors. There, Batson challenges are required to be made before the venire’s dismissal “while there remains time to correct the error by disallowing the offending strike” thereby maximizing “[¿judicial time and resources ... because there is no need to quash the jury and call a new venire.” State v. Parker, 836 S.W.2d 930, 936 (Mo. 1992). In requiring reseating, the Missouri Supreme Court has specifically noted its concern for protecting, to the greatest extent possible, the equal protection rights of the excluded venirepersons. Id at 935; State v. Hampton, 163 S.W.3d 903, 905 (Mo. 2005) (reseating “vindicates the equal protection rights both of the accused and the stricken venireper-son”). Other courts that favor reseating have observed that commencing jury selection anew effectively rewards the offending party by ensuring the improperly struck juror does not participate in that trial. See, e.g., Willis, 118 Cal.Rptr.2d 301, 43 P.3d at 137 (observing “situations can arise in which the remedy of mistrial and dismissal of the venire accomplish nothing more than to reward improper voir dire challenges”).
¶ 20 The majority of states, however, have allowed the trial court discretion to apply either of the remedies contemplated by the Batson court, See Coleman v. Hogan, 254 Va. 64, 486 S.E.2d 548, 549 (1997) (agreeing with “majority of states that the choice of [Batson violation] remedy should be within the discretion of the trial court”); Jones v. State, 343 Md. 584, 683 A.2d 520, 525-26 (1996) (same).
¶ 21 As a matter of first impression in Arizona,
¶ 22 In view of these issues and concerns, we conclude it is unnecessary to impose a single, bright-line remedy for Batson violations. The better approach, we think, is to leave it to our trial judges’ discretion to tailor an appropriate remedy to the particulars of the constitutional violation. We therefore hold that when a Batson objection has been sustained, the trial court may impose either of the remedies identified in that seminal case. That is, it is within the court’s discretion to either reseat an improperly challenged venireperson, or to grant a mistrial, depending on the particular circumstances. See Batson, 476 U.S. at 99 n.24, 106 S.Ct. 1712.
¶ 23 In so holding, we do not foreclose the possibility of other remedies. Although the Batson court identified only two solutions, it did not suggest they were exhaustive. Id. As stated in Danforth v. Minnesota, 552 U.S. 264, 306, 128 S.Ct. 1029, 169 L.Ed.2d 869 (2008), state courts are entitled to give broad effect to rules of constitutional procedure. If alternative remedies are to be employed, however, we are mindful of the Court’s observation that any remedy for a constitutional violation ought to take as its touchstone that the nature of the remedy must be determined by the character and scope of the violation. Milliken v. Bradley, 433 U.S. 267, 280, 97 S.Ct. 2749, 63 L.Ed.2d 745 (1977). Courts should also consider the practicalities of the situation such as the particulars of the case, the egregiousness of the violation, and any other factor they may find appropriate. See Koo, 124 F.3d at 873; see also People v. Luciano, 10 N.Y.3d 499, 860 N.Y.S.2d 452, 890 N.E.2d 214, 219 (2008) (identifying as relevant factors “whether the challenged juror is available to be reseated, whether the litigant appears to be engaging in a pattern of discrimination, and the number of peremptory challenges that remain to be exercised”). On review, we will defer to any factual finding unless clearly erroneous, see State v. Gay, 214 Ariz. 214, ¶ 16, 150 P.3d 787, 793 (App. 2007), and will uphold any remedy imposed absent a clear abuse of the trial court’s discretion, cf. Walker, 490 F.3d at 1294; State v. Newell, 212 Ariz. 389, ¶ 61, 132 P.3d 833, 846 (2006) (denial of mistrial for prosecutorial misconduct not disturbed absent clear abuse of discretion).
¶ 24 In this case, the trial court did not abuse its discretion in reinstating the improperly struck jurors and forfeiting the state’s invalid challenges. The record indicates that all strikes, justifications for the strikes, and arguments regarding the appropriateness of the remedy were made outside the presence of the jury; thus there was no risk a rejected juror could be offended or harbor animus against the state or justice system. And, although only two of the three reinstated venirepersons were impaneled on Urrea’s jury, the court specifically noted it had not found “any kind of personal misconduct” attributable to the prosecutors.
The Dissent
¶ 26 In his dissent, our colleague proposes grounds for reversal that appear to have little support, particularly in Arizona.
¶27 In support of its assertion that the trial court was “obligated” to seat all improperly struck jurors on the petit jury, the dissent cites a Mississippi case involving the improper denial of a defendant’s Batson challenge. But that decision did not address the scope of an appropriate Batson remedy, focusing only on the trial court’s failure to grant any remedy at all. See Conerly v. State, 544 So.2d 1370, 1372-73 (Miss. 1989) (remanding for new trial when trial court determined state’s explanation for striking juror was invalid but nevertheless allowed state’s peremptory challenge). Here, the trial court did not fail to act on the violation; it reinstated the excluded jurors on the venire, and then “resume[d] selection” as directed by Batson. 476 U.S. at 99 n.24, 106 S.Ct. 1712. The dissent’s assertion that “resuming] selection” under Batson “required [the court] to redo the Rule 18.5(g) procedure” entails a strained definition of the word “resume,” which is in common understanding quite distinct from the word “redo.”
¶ 29 The dissent’s speculation that the trial court “impaired Urrea’s right to peremptory challenges under Rule 18.6(g)” because Ur-rea may have struck different jurors knowing that the state could not strike the three reinstated jurors is likewise unwarranted. First, we disagree that the trial court was “required to vacate” Urrea’s fourth, fifth, and sixth peremptory challenges so that he could have another opportunity to re-exercise those strikes. The dissent cites no authority for that proposition, nor is there any evidence to support the presumption that Urrea would have used any of those strikes differently.
¶ 30 Second, that the jury might have been different had the trial court ruled differently did not violate Urrea’s constitutional rights. As the Supreme Court has noted, “peremptory challenges ... are a means to achieve the end of an impartial jury.” Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). In Boss, the Court unequivocally stated that peremptory strikes are “not of constitutional dimension.” Id.; see also Poland v. Stewart, 169 F.3d 673, 683 (9th Cir. 1999). The Court found no constitutional violation in Boss when the trial court erroneously failed to strike a juror for cause and the defendant used one of his peremptory strikes to remove the juror from the venire. Id. at 83, 108 S.Ct. 2273. The Court noted there, as the dissent does here, the trial court’s action “may have resulted in a jury panel different from that which would otherwise have decided the case.” Id. at 87, 108 S.Ct. 2273. But if there is no error when a defendant must use a peremptory strike to cure what would otherwise be a violation of a constitutional right, there can be no error when a defendant exercised all of his peremptory strikes but perhaps would have exercised them differently in other circumstances. As our own supreme court has said, “there is no principled basis for interpreting a court rule governing peremptory challenges more broadly than a federal constitutional right.” State v. Hickman, 206 Ariz. 192, ¶ 40, 68 P.3d 418, 427 (2003). Here, the trial court remedied the Batson violations in one of the ways approved of in Batson itself, and there has been no suggestion that the jury impaneled was anything less than impartial.
¶ 31 Nor did the trial court’s remedy violate Urrea’s statutory right to peremptory strikes. The Supreme Court held in United States v. Martinez-Salazar, 528 U.S. 304, 317, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), that “a defendant’s exercise of peremptory strikes pursuant to [the federal rule granting peremptory strikes] 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.” As noted above, removing jurors for cause is necessary to make the impaneled jury impartial, whereas peremptory strikes are merely a means towards that end.
¶32 Lastly, the dissent’s suggestion that “failing to remedy a Batson violation constitutes structural error” appears to be based on a misapplication of case law and the conflation of a non-remedied “Batson violation” with a theoretical failure to strictly comply with the procedural outlines of Rule 18.5(g). The cases applying structural error review to issues of jury selection do so either because a juror was wrongly placed on the jury, see, e.g., United States v. McFerron, 163 F.3d 952, 954-56 (6th Cir. 1998), or because a trial court allowed improper strikes of jurors in violation of Batson, see, e.g., Tankleff v. Senkowski, 135 F.3d 235, 247-48 (2d Cir. 1998). The situation presented here is much different, and the cases cited by the dissent do not compel the outcome suggested therein, particularly in view of Martinez-Salazar. See
¶ 33 Our supreme court held in Hickman that impairment of a defendant’s statutory right to peremptory strikes only requires reversal upon a showing of prejudice. 205 Ariz. 192, ¶ 32, 68 P.3d at 425-26. Applying that standard here, and even accepting ar-guendo the trial court failed to comply with Rule 18.5(g), Urrea cannot show prejudice. The dissent’s conclusion that Urrea was prejudiced because one “improperly struck juror ... did not serve on the jury” is undercut by Ross, Martinez-Salazar, Hickman, and the well-established principle that a defendant is not entitled to any particular juror, but only a fair trial. Morris, 215 Ariz. 324, ¶ 40, 160 P.3d at 213. Our dissenting colleague generally acknowledges the broad discretion accorded trial courts in fashioning a Batson remedy and identifies a number of potential variants, save the reasonable and appropriate remedy adopted by the trial court here. That remedy was in accord with Batson and its progeny, and well within the court’s discretion.
Profile Testimony
¶ 34 Urrea lastly claims the trial court erroneously admitted improper expert testimony at trial.
¶35 Drug courier profile evidence has been described as “an ‘informal compilation of characteristics’ ... typically displayed by persons trafficking in illegal drugs.” State v. Lee, 191 Ariz. 542, ¶ 10, 959 P.2d 799, 801 (1998), quoting Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980). Our supreme court has condemned the presentation of such evidence as substantive proof of guilt at trial. See id. ¶ 12. In contrast, generalized expert testimony about the way drug traffickers typically operate has been upheld. See State v. Gonzalez, 229 Ariz. 550, ¶ 13, 278 P.3d 328, 332 (App. 2012). An expert oversteps the permissible bounds when the testimony relates not just to generalized patterns of a criminal organization, but compares the modus operandi of a specific organization to the conduct of a defendant in a particular case. See State v. Garcia-Quintana, 234 Ariz. 267, ¶¶ 14-15, 321 P.3d 432, 436 (App. 2014).
¶ 36 Urrea broadly asserts the trial court erred in allowing the state’s expert to testify “concerning the manner in which drug[] transactions occur and the role of individuals in these transactions.” But, as noted above, such generalized testimony has been found to be admissible modus operandi evidence, rather than inadmissible profile evidence. See Gonzalez, 229 Ariz. 550, ¶ 13, 278 P.3d at 332. And because Urrea has made only a vague claim, without specifying any particular statement he takes exception to, we are unable to meaningfully address the issue further. See Ariz. R. Grim. P. 31.13(c)(l)(vi) (requiring citations to portions of the record l-elied on); State v. Moody, 208 Ariz. 424, n.9, 94 P.3d 1119, 1147 n.9 (2004) (undeveloped arguments waived).
¶37 Arguments made for the first time on appeal are reviewed for fundamental error. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). Here, Urrea has not argued the error was fundamental, nor have we found error which could be so characterized. See State v. Torres, 233 Ariz. 479, ¶ 9, 314 P.3d 825, 827 (App. 2013); see also Moreno-Medrano, 218 Ariz. 849, ¶ 17, 185 P.3d at 140 (fundamental error waived if not argued). And to the extent Urrea suggests the officer’s testimony was
Disposition
¶ 38 For all the foregoing reasons, Urrea’s conviction and sentence are affirmed.
. Batson v. Kentucky, 476 U.S. 79, 84, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (Equal Protection Clause forbids rejecting potential jurors because of race).
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. The state has not challenged the court’s Batson rulings on appeal, contending only that the remedy imposed was adequate.
. Reseating improperly struck jurors was subsequently upheld as a permissible remedy where a party continues to improperly exercise peremptory challenges on subsequent venires. See State v. Franklin, 318 S.C. 47, 456 S.E.2d 357, 360 (1995).
. See also State v. Morales, 71 Conn.App. 790, 804 A.2d 902, 920 n.27 (2002) (concluding state law does not require jury selection start anew after Batson challenge sustained); Jefferson v. State, 595 So.2d 38, 41 (Fla. 1992) (proceeding with improperly struck juror may be appropriate remedy in absence of prejudice); Holmes v. State, 273 Ga. 644, 543 S.E.2d 688, 691 (2001) (reseating improperly struck juror did not run afoul of constitutional mandate); Haschke v. Uniflow Mfg. Co., 268 Ill.App.3d 1045, 206 Ill.Dec. 387, 645 N.E.2d 392, 396 (1994) (vesting trial court with discretion to fashion remedy for Bat-son violation); Koo v. State, 640 N.E.2d 95, 100 (Ind. Ct. App. 1994) (remedy for Batson violation left to trial court’s discretion); Commonwealth v. Fruchtman, 418 Mass. 8, 633 N.E.2d 369, 373 (1994) (choice of remedy for Batson violation "the prerogative of the judge”); Ezell v. State, 909 P.2d 68, 72 (Okla. Crim. App. 1995) (concluding either remedy announced in Batson appropriate "depending on the particular circumstances at trial”); Woodson v. Porter Brown Limestone Co., Inc., 916 S.W.2d 896, 906-07 (Tenn. 1996) (signaling that reseating juror or striking entire venire alternate appropriate remedies); Peetz v. State, 180 S.W.3d 755, 759-61 (Tex. Ct. App. 2005) (trial court may fashion remedy for Batson violation according to its discretion); State v. Valdez, 140 P.3d 1219, 1233 (Utah 2006) (requiring Batson challenge to be raised in such a manner that trial court "is able to fashion a remedy”).
. The appropriateness of a Batson remedy has been addressed in only a handful of Arizona cases. In unpublished decisions, this court has upheld the reinstatement of improperly struck jurors to their original positions, State v. Martinez, No, 1 CA-CR 06-0936, ¶¶ 9-10, 2008 WL 2447441 (Ariz. App. June 12, 2008) (mem. decision); State v. Garcia, No. 1 CA-CR 10-0033, ¶¶ 7-
. Ariz. R. Crim. P. 18.5(g) directs the courtroom cleric to "strike the jurors on the bottom of the list until only the number to serve, plus alternates, remain" if parties fail to exercise the full number of peremptory challenges. A similar process has been approved in the civil context. See Ariz. R. Civ. P. 47 cmt. to 1995 amend, (describing purpose of amendments to allow for the "struck” juror selection method, in which for-cause challenges are made after the jury panel has been examined, peremptory strikes are then made and legal issues therefrom resolved, and "the clerk calls the first eight names remaining on the list").
. The dissent cites three Arizona cases to suggest reversal is required in this case. However, State ex rel. Romley, 181 Ariz. 271, 274, 889 P.2d 629, 632 (App. 1995), discussed the importance of peremptory strikes in saying that a party generally need not explain its "arbitrary and capricious” reasons for striking a juror. State v. Boston, 170 Ariz. 315, 316-17, 823 P.2d 1323, 1324-25 (App. 1991), is also distinguishable as the trial court there erroneously allowed a juror to be struck in violation of Batson. Finally, the "absolute" right to peremptory strikes attributed to State v. Thompson, 68 Ariz. 386, 390, 206 P.2d 1037, 1039 (1949), is quoted from the 1936 edition of American Jurisprudence. The more recent second edition notably excised this language. See 47 Am. Jur. Jwy § 206.
.As for the dissent's suggestion the trial court "truncat[ed] the proceeding with an inadequate remedy” because of concerns about time, the Supreme Court has recognized that judges' decisions in jury selection "are fast paced, made on the spot and under pressure” and even a wrong decision does not always require reversal. United States v. Martinez-Salazar, 528 U.S. 304, 316, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000).
. Urrea additionally renews his claim that Detective Felix was untimely disclosed and should have been precluded from testifying. His failure to develop or support this argument, however, waives the issue and we do not address it further. See State v. Moody, 208 Ariz. 424, n.9, 94 P.3d 1119, 1147 n.9 (2004) (merely mentioning argument insufficient).
Dissenting Opinion
dissenting:
¶ 39 I agree with my colleagues that a trial court has broad discretion to fashion an appropriate remedy for a Batson violation, and we will not disturb its ruling absent an abuse of discretion. I also agree that imposing either of the two remedies the Supreme Court mentioned in Batson is not an abuse of discretion. Those two remedies are: (1) “disc-harg[ing] the venire and seleet[ing] a new jury from a panel not previously associated with the case,” or (2) “disallow[ing] the discriminatory challenges and resum[ing] selection with the improperly challenged jurors reinstated on the venire.” Batson, 476 U.S. at 99 n.24, 106 S.Ct. 1712. But the trial court imposed only an incomplete version of the latter remedy, and it impaired Urrea’s right to peremptory challenges under Rule 18.5(g), Ariz. R. Crim. P. A defendant who perceives a Batson violation should not be given a Hobson’s choice whether to assert his right to a constitutionally valid jury or to relinquish his Rule 18.5 right to exercise his peremptory challenges. For the reasons that follow, I conclude the court abused its discretion when it sustained Urrea’s Batson challenges to three jurors, but did not allow him to exercise peremptory challenges with the remaining members of the jury panel.
¶ 40 Each party is allowed six peremptory challenges in a noncapital case tried in superior court, such as the present case. See Ariz. R. Crim. P. 18.4(c)(l)(ii). The procedure for the use of peremptory challenges is set forth in Rule 18.5(g). After examining the jurors, the prosecutor and the defendant take turns exercising their peremptory challenges on the clerk’s list, beginning with the prosecutor. Id. Either party may waive its remaining challenges on one of its turns, but the other party is nevertheless entitled to use all of its remaining challenges if desired. Id. “If the parties fail to exercise the full number of challenges allowed them, the clerk shall strike the jurors on the bottom of the list until only the number to serve, plus alternates, remain” (here, nine total).
¶ 41 Here, the trial court found the state’s fourth, fifth, and sixth peremptory challenges violated Batson.
¶43 Instead of employing any of these permissible alternatives,
¶44 In announcing its ruling, the trial court stated, “we’re running out of time” and “[w]e can’t just sit here and talk about it for two days.” Although the court’s frustration with the lack of Arizona case law guidance was understandable, simply truncating the proceeding with an inadequate remedy was not sufficient, particularly where it was simple and efficient to permit another round of peremptory challenges. The original challenges took the attorneys no more than eighty-one minutes including their lunch break. A second round would have taken half that time and would not have inconvenienced the jury panel, which was on break. See also Andrews, 78 A.3d at 984 (“The remedy or remedies selected to redress a Batson ... violation must never be informed solely by the desire to expedite a trial.”).
¶ 46 The majority’s reliance on Martinez-Salazar, Ross, and Hickman for the proposition that harmless error review applies is misplaced. In each of those cases, the defendant used a peremptory challenge to strike a juror whom the court should have dismissed for cause. Martinez-Salazar, 528 U.S. at 308-09, 120 S.Ct. 774; Ross, 487 U.S. at 83, 108 S.Ct. 2273; Hickman, 205 Ariz. 192, ¶ 3, 68 P.3d at 419. In such a situation, only the defendant’s rights are at stake, and as long as the jury ultimately impaneled is fair and impartial, the defendant is not prejudiced. See Hickman, 205 Ariz. 192, ¶ 28, 68 P.3d at 424. But unlike those cases, Batson is about more than just ensuring a fair trial for a defendant. See Powers, 499 U.S. at 406-07, 111 S.Ct. 1364 (Batson serves multiple ends, only one of which is to protect defendant from discrimination). It is also about safeguarding participatory democracy and the equal protection rights of venirepersons.
¶ 47 Even assuming for the sake of argument that a Batson violation constitutes technical error, which would not require reversal in the absence of prejudice to the defendant, the error was not harmless here. The practical result of the trial court’s incomplete remedy was that improperly struck juror O.C. did not serve on the jury. By merely striking the bottom three names from a list that included the reinstated jurors, rather than ordering that the improperly struck jurors serve on the jury and then reinitiating the Rule 18.5(g) procedure, the court effectively ratified one of the prosecutor’s unconstitutional strikes.
¶ 48 Accordingly, I would reverse and remand for a new trial.
. A non-capital criminal case in which the sentence authorized by law is less than thirty years requires a jury of eight, and typically, as here, the court will qualify one alternate juror as well for a total of nine. See A.R.S, § 21—102(A)—(B); Ariz. R, Crim. P. 18.1(a), 18.2, 18.4(c)(l)(ii), 18.5(b), (h).
. A Batson violation necessarily includes a finding of discriminatory intent. Hernandez v. New York, 500 U.S. 352, 359-60, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) ("Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason [for a peremptory strike] will be deemed race neutral."). Therefore, I cannot agree with the majority’s conclusion that there was a "lack of any misconduct by the state” and the situation was not ’’serious[]” enough to warrant a robust remedy. The arguably inconsistent statement by the trial court regarding the prosecutor does not obviate the trial court's finding of a Batson violation, which requires discriminatory intent.
. However, reinstatement may not always be possible. See, e.g., Chin, 771 N.Y.S.2d at 159 (reinstatement not feasible because improperly struck juror already released from service); State v. Walker, 154 Wis.2d 158, 453 N.W.2d 127, 135 n.12 (1990) (in jury box system, where prospective jurors are seated, examined, and publicly challenged or accepted one at a time, reinstatement could cause juror bias against attorney who made improper strike), abrogated on other grounds by State v. Felix, 339 Wis.2d 670, 811 N.W.2d 775 (2012).
. The majority indicates that the nature of remedy must be matched against the severity of the violation, citing Milliken, 433 U.S. at 279-80, 97 S.Ct. 2749, and Willis, 118 Cal.Rptr.2d 301, 43 P.3d at 134-35. These cases are not on point. Milliken involved the propriety of the equitable remedy of remedial education in the context of a school desegregation case involving the Detroit school system. 433 U.S. at 269, 279, 97 S.Ct. 2749. Willis concerned the offensive use of multiple, continuous Batson violations to force a mistrial under California’s then-absolute rule requiring a mistrial. 118 Cal.Rptr.2d 301, 43 P.3d at 133-37. Neither case supports the proposition that Batson violations are weighed for severity before deciding the appropriate remedy.
.The practice of peremptory challenges is not without its critics. See, e.g., State v. Medina, 172 Ariz. 287, 290, 836 P.2d 997, 1000 (App. 1992) (many based on "ugly generalizations”); Vivien Toomey Montz & Craig Lee Montz, The Peremptory Challenge: Should It Still Exist? An Examination of Federal and Florida Law, 54 U. Miami L. Rev. 451, 481-86 (2000) (empirical evidence suggests attorneys "generally unsuccessful in reliably predicting jurors' tendencies"); Morris B. Hoffman, Peremptory Challenges Should Be Abolished: A Trial Judge’s Perspective, 64 U. Chi. L. Rev. 809, 871 (1997) (dubious theories underlying exercise of peremptory challenges are "[a]t worst ... our old friends racism, sexism, and class hatred all dressed up in twentieth century psychobabble” even after Batson, and "[a]t best, they are animus-free nonsense, but nonsense nonetheless”). But unless and until our supreme court prohibits peremptory challenges, we are required to treat them as a substantial right that cannot be abrogated without justification.
. The majority suggests Thompson is no longer authoritative because it cited a treatise since changed, but does not contend it has been abrogated or overruled. See also Hickman, 205 Ariz. 192, ¶ 26, 68 P.3d at 424 (distinguishing Thompson rather than undermining it), "We are constrained by decisions of the Arizona Supreme Court and may not overrule, modify, or disregard them.” Craven v. Huppenthal, 236 Ariz. 217, ¶ 13, 338 P.3d 324, 327 (App. 2014).
. Although the majority is correct that peremptory challenges are not of a constitutional dimension, Batson, of course, is. Batson, 476 U.S. at 89, 106 S.Ct. 1712, citing U.S. Const. amend. XIV,§ 1.
. The majority is correct that Urrea had no right to a particular jury, Morris, 215 Ariz. 324, ¶ 40, 160 P.3d at 213, but that observation does not address or obviate the rights of citizens "not to be excluded from [a particular petit jury] on account of race,” Powers, 499 U.S, at 409, 111 S.Ct. 1364, as happened here,
. Because the suppression and profile testimony issues would be likely to recur on remand, I would address those issues and reach the same conclusions as my colleagues. See State v. May, 210 Ariz. 452, ¶ 1, 112 P.3d 39, 40 (App. 2005).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.