                       IN THE COURT OF APPEALS                 FILED BY CLERK
                           STATE OF ARIZONA
                             DIVISION TWO                         DEC 17 2010
                                                                   COURT OF APPEALS
                                                                     DIVISION TWO

THE STATE OF ARIZONA,           )
                                )                 2 CA-CR 2008-0377
                     Appellee, )                  DEPARTMENT B
                                )
         v.                     )                 OPINION
                                )
DOUGLAS LEE EDDINGTON,          )
                                )
                     Appellant. )
                                )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                               Cause No. CR20061586

                           Honorable Kenneth Lee, Judge

                                    AFFIRMED


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and David A. Sullivan                                 Tucson
                                                           Attorneys for Appellee

Robert J. Hirsh, Pima County Public Defender
 By Rebecca A. McLean                                                     Tucson
                                                          Attorneys for Appellant


E C K E R S T R O M, Judge.
¶1            Following a jury trial, appellant Douglas Eddington was convicted of

second-degree murder and sentenced to sixteen years‟ imprisonment. On appeal, he

argues the trial court‟s refusal to strike a potential juror for cause requires reversal. He

also contends his conviction should be reversed or reduced because the jury received

defective instructions regarding second-degree murder and the consideration of lesser

offenses. We conclude the court erred in refusing to strike the challenged juror for cause

given that he was a peace officer employed by the same office that had investigated the

case. Finding no prejudice, however, we affirm.

                                      Background1

¶2            After an investigation by the Pima County Sheriff‟s Department, Eddington

and two codefendants were charged with first-degree murder. During voir dire on the

first day of trial, a venireman testified he was a Pima County sheriff‟s deputy and knew

between one-third and one-half of the state‟s fourteen potential witnesses from the

sheriff‟s department, including the lead detective, Christopher Hogan. The deputy further

stated he currently was assigned to provide security at the Pima County Superior Court.

He also stated without elaboration that he understood why there were two security




       1
       Given our disposition and the procedural nature of Eddington‟s arguments, we
need not recite the underlying facts of the case. Cf. State v. Garcia, 220 Ariz. 49, ¶ 2,
202 P.3d 514, 515 (App. 2008).
                                             2
officers in the courtroom, a comment which suggested he knew Eddington was being

held in custody.2

¶3            Based on these facts, Eddington moved the trial court to strike the deputy

for cause. The court denied the motion, referring to the deputy‟s repeated avowals that

he could be a fair and impartial juror and would not treat the testimony of law

enforcement officers differently from that of any other witness. “[G]iven the record . . .

we have in terms of the questions and the responses,” the court concluded, “there‟s not

sufficient basis to strike him for cause.” Eddington subsequently removed the deputy

from the panel by use of a peremptory strike. Eddington was ultimately acquitted of first-

degree murder but convicted of second-degree murder and sentenced as noted above.

This appeal followed.

                                    Motion to Strike

¶4            Eddington contends his conviction should be reversed because the trial

court erred in denying his motion to strike the deputy for cause. Eddington specifically

urged the court to strike the deputy from the venire panel because the deputy “work[ed]




       2
       Eddington misreads the record in claiming the deputy had himself transported the
two codefendants.
                                            3
for the same agency” as “all the law enforcement witnesses,”3 because he “kn[ew] a third

of the witnesses,” and because the deputy was aware Eddington was in custody.4

¶5            As a general matter, a trial court must dismiss a juror for cause when “there

is [a] reasonable ground to believe that [the] juror cannot render a fair and impartial

verdict.” Ariz. R. Crim. P. 18.4(b). The party challenging the juror bears the burden of

establishing that the juror could not be unbiased and fair. State v. Trostle, 191 Ariz. 4,

13, 951 P.2d 869, 878 (1997). “In assessing a potential juror‟s fairness and impartiality,

the trial court has the best opportunity to observe prospective jurors and thereby judge the

credibility of each.” State v. Hoskins, 199 Ariz. 127, ¶ 37, 14 P.3d 997, 1009 (2000). We

therefore review a trial court‟s assessment of that question only for a clear abuse of

discretion. Id.

¶6            Under the above standards, a peace officer is not automatically barred from

serving as a juror. See State v. Hill, 174 Ariz. 313, 319, 321, 848 P.2d 1375, 1381, 1383

(1993) (finding no abuse of discretion in court‟s refusal to strike police officer for cause);

see also A.R.S. § 21-202(B)(5) (giving peace officers option to be excused from jury

service). Although “the impartiality of a potential juror who is personally acquainted

with individuals involved in the prosecution is necessarily suspect,” such acquaintances
       3
       The record reveals that two law enforcement witnesses did not work for the same
agency as the deputy.
       4
        In his opening brief, Eddington does not squarely argue each of these three bases
as grounds for relief but rather focuses on the deputy‟s knowledge of Eddington‟s in-
custody status as a basis for his appeal. Because we do not grant Eddington relief at any
rate, we exercise our discretion to comprehensively address the issue as to all aspects of
the claim raised to the trial court.
                                            4
alone are not grounds for automatic disqualification. Hill, 174 Ariz. at 319, 848 P.2d at

1381.

¶7            However, any individual is disqualified by law from sitting on a jury if he

or she is “interested directly or indirectly in the matter under investigation.” A.R.S. § 21-

211(2). We review the applicability of a statutory provision de novo and are not bound

by the trial court‟s conclusions of law. See Reeder v. Johnson, 225 Ariz. 312, ¶ 6, 238

P.3d 123, 125 (App. 2010) (appellate court not bound by trial court‟s legal conclusions or

conclusions on mixed questions of law and fact); State v. Gonzalez, 216 Ariz. 11, ¶ 2, 162

P.3d 650, 651 (App. 2007) (questions of statutory application reviewed de novo); see also

Lopez v. Farmers Ins. Co. of Ariz., 177 Ariz. 371, 373-75, 868 P.2d 954, 956-58 (App.

1993) (concluding venirepersons insured by insurer which was a party to the case had

interest in case necessitating disqualification under § 21-211(2) notwithstanding trial

court‟s finding they could be “fair and impartial”).

¶8            We hold that when a peace officer5 is currently employed by the same

agency, office, or department that conducted the investigation in a criminal case, that

officer has, at minimum, an indirect interest in the case and must therefore be stricken for

cause from a venire panel under § 21-211(2).6           In any criminal prosecution, law




        5
       We use the term “peace officer” as it is defined in A.R.S. §§ 1-215(28) and 13-
105(28). Both definitions apply to the venireperson here.
        6
       We are not here presented with a case wherein a particular law enforcement
agency has only minor or token involvement in an investigation, and we do not address
                                        5
enforcement officers and prosecutors work together as agents of the state. See State v.

Lane, 69 Ariz. 236, 243-44, 211 P.2d 821, 826 (1949) (“Whatever investigation the

sheriff made as an agent of the state was made for the benefit of the county attorney as an

agent of the state in enabling him to successfully prosecute the offender . . . .”); State ex

rel. Romley v. Superior Court, 172 Ariz. 232, 239, 836 P.2d 445, 452 (App. 1992)

(identifying law enforcement officers as “agent[s] of the state”). Indeed, as our rules of

procedure reflect, police investigators often literally serve beside prosecutors in the

courtroom in attempting to prove the state‟s case. Ariz. R. Crim. P. 9.3(d) (allowing

prosecutor “presence of one investigator at counsel table”); e.g., State v. Jones, 185 Ariz.

471, 483, 917 P.2d 200, 212 (1996) (detective was Rule 9.3(d) investigator seated at

counsel table); State v. Williams, 183 Ariz. 368, 379, 904 P.2d 437, 448 (1995) (two

investigating detectives from different police agencies seated at counsel table).

¶9            Although prosecutors and peace officers alike have a broad interest in

attaining justice in every case, see State v. Hughes, 193 Ariz. 72, ¶ 33, 969 P.2d 1184,

1192 (1998), peace officers, like prosecutors, also have a particular interest in seeing that

the criminal cases their offices have investigated and developed are successfully

prosecuted. Our jurisprudence recognizes that law enforcement can often become a

“„competitive enterprise,‟” just like any other human endeavor. State v. Watling, 104

Ariz. 354, 358, 453 P.2d 500, 504 (1969), quoting Giordenello v. United States, 357 U.S.



whether employees of an agency with such minimal involvement would have an indirect
interest in the proceedings.
                                         6
480, 486 (1958). If nothing else, a prosecution that results in a conviction closes a case

and thereby conserves a police department‟s limited resources. Officers therefore have

some interest in any investigation in which their own department has an institutional

interest. And, in such event, they should be removed from a jury for cause, just as a

deputy county attorney who works in the same office as the prosecutor should be

removed from a jury panel. See People v. Terry, 35 Cal. Rptr. 2d 729, 732 (Ct. App.

1994).

¶10           Peace officers also have some interest in matters investigated by their own

departments arising from their role as an employee of the organization that has a stake in

the outcome of the case. The same considerations noted in Terry regarding prosecutors

serving as jurors apply equally to peace officers called to judge their colleagues‟ work

and credibility: When a case has been investigated and referred for prosecution by one‟s

own employer, a peace officer serving as a juror might feel reluctant to join an adverse

verdict because the case has been “brought by a fellow [investigator] from his own

office” and presumptively “supervised by his own superior.” 35 Cal. Rptr. 2d at 731; see

also Tate v. People, 247 P.2d 665, 670-71 (Colo. 1952) (noting special deputy sheriff

“would be presumed to be under ordinary allegiance to his superior, the sheriff,” a

material witness in case).7


         7
         The state cites several cases addressing whether law enforcement officers have a
sufficient interest in their investigations to meaningfully diminish the probative value of
their in-court testimony. See State v. Miller, 187 Ariz. 254, 258, 928 P.2d 678, 682 (App.
1996); State v. Nevarez, 178 Ariz. 525, 527, 875 P.2d 184, 186 (App. 1993). Those cases
                                               7
¶11           By the above standards, the deputy‟s interests in these proceedings were

especially pronounced.     He had a professional relationship with more of the state‟s

witnesses than he could precisely count—including the lead homicide detective, who

both testified as a state‟s witness and sat at the prosecutor‟s table during portions of the

trial. If seated as a juror, the deputy would necessarily be forced to judge the credibility

and conduct of his coworkers, a role with potential consequences for his future working

relationships. Disqualifying people with such professional entanglements and presumed

allegiances was one of the clear purposes behind § 21-211(2).             See § 21-211(3)

(disqualifying certain “[p]ersons related by consanguinity or affinity” to parties); see also

Commonwealth v. Fletcher, 369 A.2d 307, 308-09 (Pa. Super. Ct. 1976) (concluding

police detective should have been dismissed for cause given totality of circumstances,

including fact that detective knew several police witnesses and worked for same

department); cf. State v. Davis, 137 Ariz. 551, 555, 559-60, 672 P.2d 480, 484, 488-89

(App. 1983) (upholding refusal to strike civilian police assistant for cause, emphasizing

“he was not acquainted with the police officers in this case”).

¶12           By broadly excluding people “interested directly or indirectly in the matter

under investigation,” § 21-211(2) removes from the jury venire those whose financial or




are readily distinguishable insofar as they did not interpret the meaning of a “direct[] or
indirect[]” interest under § 21-211(2), nor did they purport to address an officer‟s
potential interests in the context of jury eligibility.

                                             8
professional self-interest may compete with the interests of justice.8 Contrary to the

suggestion of our concurring colleague, § 21-211(2) does not give a trial court discretion

to consider whether a venireperson with a direct or indirect interest may nonetheless

serve fairly and impartially. Rather, it states that such a person “shall be disqualified.”9

Thus, although we do not question the sincerity of the deputy‟s avowals of impartiality or

the trial court‟s implicit trust in those avowals, such avowals do not render a venireperson

with a direct or indirect interest in the matter eligible to sit on the jury. We likewise

accept, and defer to, the trial court‟s express and implicit findings on the nature of the

deputy‟s relationships to the witnesses and investigating agency. But, for the reasons

stated above, we cannot agree with, nor need we defer to, the trial court‟s legal

conclusion that the deputy had no interest, direct or indirect, in the outcome of a case

investigated by his office. See Lopez, 177 Ariz. at 373-75, 868 P.2d at 956-58 (reversing

trial court and concluding insurance policyholders had direct interest in case and were

therefore disqualified under § 21-211(2) when verdict could affect their premiums).
       8
        The comment to Rule 18.4(b) similarly provides that a challenge for cause may
be based on a “showing of facts from which an ordinary person would i[nfer] a likelihood
of predisposition in favor of one of the parties,” including the fact that a potential juror
“stands in the relationship of . . . master and servant . . . or is an employee . . . of the
person . . . on whose complaint the prosecution was instituted.” Although the rule does
not expressly state the consequence of such an employment relationship, it will
automatically disqualify a juror under § 21-211(2).
       9
        In requiring disqualification notwithstanding a venireperson‟s avowals of
impartiality, § 21-211(2) is similar to the criteria for judicial disqualification set forth in
our own Code of Judicial Conduct. See Rule 2.11(A), Arizona Code of Judicial Conduct,
Ariz. R. Sup. Ct. 81 (“A judge shall disqualify himself or herself in any proceeding in
which the judge‟s impartiality might reasonably be questioned . . . .”). Both provisions
are aimed at instilling confidence in the justice system.
                                               9
¶13           Our concurring colleague maintains that A.R.S. § 21-202(B)(5) expresses a

legislative intent at odds with disqualifying a peace officer pursuant to § 21-211(2). But

§ 21-202(B)(5) merely provides peace officers the right to be excused from jury service

at their discretion upon application. No language in that provision suggests that any class

of citizens is exempt from the requirements for jury service set forth in § 21-211,

including peace officers who choose to serve.          And although we agree that § 21-

202(B)(5) contemplates that peace officers are generally eligible for jury service, nothing

in our analysis limits peace officers‟ rights to participate in jury service in all cases, civil

or criminal, wherein their employer has no direct or indirect interest.

¶14           The concurring opinion also suggests that we have announced a new rule

not contemplated by either our legislature or our supreme court. But the legislature, not

this court, enacted § 21-211(2), which renders any person ineligible for jury service who

has a direct or indirect interest in the case in question. And, assuming arguendo our

supreme court has the constitutional authority to override legislation directed at the trial

process, nothing in our supreme court‟s own rule relating to juror challenges, or the

historical modifications to that rule, suggests any intention to modify or supplant § 21-

211(2). See Ariz. R. Crim. P. 18.4; see also Seisinger v. Siebel, 220 Ariz. 85, ¶ 8, 203

P.3d 483, 487 (2009) (supreme court recognizes “statutory enactments that supplement

rather than conflict with rules” promulgated by judicial branch).

¶15           For all the above reasons, we conclude a peace officer has, at a minimum,

an indirect interest in the outcome of a criminal investigation conducted by his employer.

                                              10
The trial court therefore erred when it denied Eddington‟s motion to strike the deputy

from the venire panel.10

¶16           In evaluating the deputy‟s fitness to serve as a juror here, we are also

concerned by the deputy‟s awareness of Eddington‟s in-custody status. Contrary to the

prosecutor‟s suggestion below, this was neither common knowledge nor a trivial fact.

Indeed, criminal defendants have a constitutional right to appear in non-jail attire

precisely to avoid reminding the jury of a defendant‟s in-custody status—knowledge that

would create an “unacceptable risk” that the presumption of innocence will be eroded.

Estelle v. Williams, 425 U.S. 501, 504-05 (1976). If forcing a criminal defendant to

appear before a jury in jail attire erodes the presumption of innocence sufficiently to

violate the defendant‟s right to due process, we are skeptical that a trial court retains the

discretion to empanel jurors who are aware of a defendant‟s in-custody status, especially

given the ease with which a venireperson may be replaced at that early stage in the

proceedings. Cf. State v. Murray, 184 Ariz. 9, 35, 906 P.2d 542, 568 (1995) (finding

motion for mistrial based on witnesses‟ testimony exposing defendant‟s custodial status

properly denied when information “not prejudicial” in context of case).

¶17           The trial court‟s reasoning in rejecting the motion to strike suggests the

court may have believed it lacked the discretion to strike the deputy once he sincerely


       10
         We do not address whether the same rationale would render all employees of the
investigating agency, including clerical and other support staff not involved in criminal
investigation, ineligible for jury service in those cases investigated by that agency. We
instead limit our reasoning to the issue presented on the record before us.
                                              11
avowed his impartiality.     Indeed, a potential juror‟s inability to “render a fair and

impartial verdict” is the only criterion articulated under Rule 18.4(b) for excusing a juror

for cause. But we emphasize that our courts retain broad discretion under that rule to

determine “[w]hen there is [a] reasonable ground to believe” that a venireperson could

not be fair and impartial notwithstanding the venireperson‟s own sincere belief to the

contrary. See State v. Glassel, 211 Ariz. 33, ¶ 50, 116 P.3d 1193, 1208 (2005) (assuming

juror sincere about being able to apply law, trial court “could have reasonably determined

that the juror‟s views would substantially impair his ability to deliberate impartially”).

Thus, even if our legislature had not provided additional eligibility requirements for jury

service in § 21-211(2) pertinent to this case, the trial court was not obligated under Rule

18.4(b) to retain the deputy on the venire panel merely because he had testified sincerely

that he believed he could be fair and impartial.

¶18           Although we find Eddington‟s motion to strike should have been granted,

the trial court‟s ruling is nevertheless subject to harmless error review. See State v.

Garza, 216 Ariz. 56, ¶ 32, 163 P.3d 1006, 1015 (2007); State v. Hickman, 205 Ariz. 192,

¶ 28, 68 P.3d 418, 424 (2003). “Reversal is not required if a fair and impartial jury was

ultimately empanelled.” Garza, 216 Ariz. 56, ¶ 32, 163 P.3d at 1015; accord State v.

Kuhs, 223 Ariz. 376, ¶ 27, 224 P.3d 192, 198 (2010). The state argues the error was

harmless because Eddington was ultimately tried by a fair and impartial jury. We agree.

¶19           Eddington contends he was prejudiced because his use of a peremptory

strike on the deputy prevented him from striking a juror who worked as an engineer for

                                             12
Raytheon and had rendered a guilty verdict in another case. Although these details may

have made this juror less appealing to Eddington, they in no way suggested the juror was

biased or could not serve as a fair and impartial trier of fact. Cf. State v. MacDonald, 110

Ariz. 152, 153-54, 515 P.2d 1172, 1173-74 (1973) (finding no prejudice when defendant

merely argued “peremptory challenges are very valuable” and was prevented from

“exercising his peremptory challenges to his best advantage”). “[W]hen a defendant

secures an impartial jury, even through the curative use of a peremptory challenge, a

conviction by that jury will not have prejudiced that defendant.” Hickman, 205 Ariz.

192, ¶ 31, 68 P.3d at 425.         Because Eddington has not articulated beyond mere

speculation how the trial court‟s error affected the outcome of the case, we find the error

harmless.

¶20           We recognize that in order to preserve an appellate claim that a trial court

erred in failing to strike a venireperson for cause, a defendant must use a peremptory

strike to remove that person from the panel. State v. Rubio, 219 Ariz. 177, ¶ 12, 195 P.3d

214, 218 (App. 2008).       Thus, under all but the most extraordinary circumstances,

defendants will be unable, as here, to show prejudice and secure any relief arising from a

trial court‟s erroneous failure to strike a venireperson for cause. See Hickman, 205 Ariz.

192, ¶ 31, 68 P.3d at 425 (acknowledging near impossibility of determining effect on trial

when defendant uses peremptory strike to remove juror challenged for cause). For this

reason, an appellate challenge to a trial court‟s failure to strike a potential juror for cause

would, in most criminal cases, evade review if we routinely declined to reach such claims

                                              13
in every case wherein we found no prejudice from the error. We think the better practice

is to address such claims on their merits when, as here, we can provide our trial courts

important guidance in so doing.

                                    Jury Instructions

¶21           Eddington contends he is entitled to appellate relief because the trial court

gave three erroneous jury instructions, all of which he failed to challenge below. Because

he did not properly allege these errors in the trial court when they could have been

corrected, see Ariz. R. Crim. P. 21.3(c), Eddington has forfeited appellate review for all

but fundamental error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601,

607-08 (2005). Under this more restrictive standard, a defendant bears the burden of

establishing that error occurred, that the error was fundamental, and that it resulted in

prejudice. Id. ¶ 20.

¶22           A principal reason for applying the fundamental error standard of review is

to discourage defendants from attempting to use a curable error as a “„hole card‟” on

appeal in the event they are dissatisfied with the results of their trial. Id. ¶ 19, quoting

State v. Valdez, 160 Ariz. 9, 13, 770 P.2d 313, 317 (1989), overruled on other grounds by

Krone v. Hotham, 181 Ariz. 364, 890 P.2d 1149 (1995). So, although Eddington is

correct that erroneous jury instructions may often be characterized as fundamental error,

e.g., State v. Schad, 142 Ariz. 619, 621, 691 P.2d 710, 712 (1984), it is also the case that

defendants will seldom obtain appellate relief on the basis of defective instructions to



                                            14
which they raised no objection in the trial court. State v. Gomez, 211 Ariz. 494, ¶ 20, 123

P.3d 1131, 1136 (2005). A particular showing of prejudice is required. Id. ¶ 21.

Second-Degree Murder

¶23            The trial court defined second-degree murder with the following

instruction:

                      The crime of second degree murder requires proof of
               one of the following:

                     1. The defendant intentionally caused the death of
               another person; or

                      2. The defendant caused the death of another person
               by conduct which the defendant knew would cause death or
               serious physical injury; or

                      3. Under     circumstances     manifesting    extreme
               indifference to human life, the defendant recklessly engaged
               in conduct that created a grave risk of death and thereby
               caused the death of another person. The risk must be such
               that disregarding it was a gross deviation from what a
               reasonable person in the defendant‟s situation would have
               done; or

                      4. The defendant intentionally, knowingly or under
               circumstances manifesting extreme indifference to human life
               recklessly engaged in conduct that created a grave risk of
               death and caused the death of another person.

The court then clarified that “recklessly” as used in the above instruction “means that a

defendant is aware of and consciously disregards a substantial and unjustifiable risk that

conduct will result in the death of another,” adding, “The risk must be such that




                                            15
disregarding it is a gross deviation from what a reasonable person would do in the

situation.”

¶24           Eddington now contends the fourth point listed above was erroneous. In

his view, this portion of the instruction “inserted a fourth way of committing second

degree murder, which reemphasized the third way (extreme indifference recklessness).”

It follows, he claims, that the instruction confused jurors by “includ[ing] the terms

intentional or knowing, which are not elements of extreme indifference second degree

murder.” He also maintains the instruction was deficient because “it neglect[ed] to

include the „gross deviation‟ language required for extreme indifference second degree

murder.” All these arguments rest on an inaccurate characterization and isolated reading

of the provision in question.

¶25           Reading this instruction in its overall context, as we must, see State ex rel.

Thomas v. Granville, 211 Ariz. 468, ¶ 8, 123 P.3d 662, 665 (2005), we find that it

correctly stated the law, even though the fourth enumerated point was unnecessary and

arguably inadvisable.    Contrary to Eddington‟s interpretation, this fourth provision

neither “reemphasized” second-degree murder with extreme indifference to human life

nor defined a new, “fictional” offense. Rather, it simply restated the three ways of

committing second-degree murder. The statements regarding mens rea therefore were

accurate. Second-degree murder can be committed by “intentionally . . . [or] knowing[ly]

. . . caus[ing] the death of another person,” as the challenged provision states. See A.R.S.

§ 13-1104(A)(1), (2). What distinguishes this crime from first-degree murder, as the trial

                                            16
court correctly noted elsewhere in its instructions, is that it lacks the element of

premeditation. See A.R.S. §§ 13-1104(A), 13-1105(A)(1).

¶26          As to the fourth point‟s definition of reckless second-degree murder under

circumstances manifesting extreme indifference to human life, see § 13-1104(A)(3), this,

too, was a correct statement of the law when read together with the trial court‟s

instructions as a whole. See State v. Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056

(1986).   Eddington claims the repetition of the elements of reckless second-degree

murder did not “include that the deviation must be a gross deviation.” But he overlooks

that, immediately after reading the challenged provision, the court instructed the jurors

that a guilty verdict based on reckless second-degree murder required them to find the

defendant‟s disregard for the risk of death represented a “gross deviation” from

reasonable standards of behavior. See A.R.S. §§ 13-105(10)(c), 13-1104(A)(3).

¶27          Eddington further criticizes the instruction because it omitted the word

“thereby” in the fourth point, which he claims implied “the conduct d[id] not necessarily

have to be connected to the mental state.” But the instruction implied nothing of the sort.

In summarizing the three ways of committing second-degree murder, the trial court

merely omitted this word to avoid the flawed syntax that would result from saying the

offense could be committed by “intentionally or knowingly . . . thereby causing the death

of another person.” It was apparent in context that any reckless conduct must have been

the cause of death for the jury to pronounce guilt. Thus, despite the formal differences



                                            17
between the third and fourth points, the jury was able to reach a legally correct decision

on the second-degree murder charge. See Granville, 211 Ariz. 468, ¶ 8, 123 P.3d at 665.

¶28           Although the fourth provision may be criticized for its redundancy, it

correctly set forth the applicable law when read in conjunction with the court‟s other

instructions. Accordingly, we find no error, fundamental or otherwise, that would entitle

Eddington to relief.11

Heat-of-Passion Manslaughter

¶29           The trial court instructed the jury that second-degree murder and heat-of-

passion manslaughter12 were both lesser-included offenses of first-degree murder. In an

instruction fashioned from State v. LeBlanc, 186 Ariz. 437, 438, 924 P.2d 441, 442

(1996), the court then told the jurors they must not consider the lesser manslaughter

offense unless they either acquitted Eddington of the greater offense of second-degree

murder or were unable to reach a verdict after deliberation. We found no error in the use

of the LeBlanc instruction as applied to second-degree murder and heat-of-passion

manslaughter in State v. Garcia, 220 Ariz. 49, ¶¶ 3, 6-8, 202 P.3d 514, 515, 516-17 (App.

2008).
         11
         We need not separately address Eddington‟s assertion that the instruction was
also an impermissible “comment[] on the evidence,” given his failure to properly develop
a legal argument on this point as required by Rule 31.13(c)(1)(vi), Ariz. R. Crim. P. In
any event, we believe this contention is founded upon the same mistaken interpretation of
the instruction we have already rejected.
         12
          Section 13-1103(A)(2), A.R.S, defines the offense as “[c]ommitting second
degree murder as defined in § 13-1104, subsection A upon a sudden quarrel or heat of
passion resulting from adequate provocation by the victim.” For ease of reference, we
refer to it simply as heat-of-passion manslaughter.
                                            18
¶30           Eddington claims, however, that Garcia was wrongly decided and that

LeBlanc does not apply to second-degree murder and heat-of-passion manslaughter

because the latter is not truly a lesser-included offense of the former. See Peak v. Acuña,

203 Ariz. 83, ¶¶ 5-6, 50 P.3d 833, 834-35 (2002) (holding heat-of-passion manslaughter

not lesser-included offense of second-degree murder for double jeopardy purposes). The

manslaughter offense, he points out, is comprised of the same elements as second-degree

murder but has the additional elements—or “circumstance[s],” as the court described

them in Peak—of being caused by a sudden quarrel or heat of passion that is the result of

adequate provocation. 203 Ariz. 83, ¶ 6, 50 P.3d at 834. Thus, he claims, as applied

here, the LeBlanc instruction “prevented the jury from properly considering whether

[Eddington] was guilty of second-degree murder or manslaughter.”

¶31           This argument is logically compelling, given that we presume juries follow

instructions, LeBlanc, 186 Ariz. at 439, 924 P.2d at 443, and a jury literally following the

LeBlanc instruction would never reach the issue of adequate provocation in order to find

a defendant guilty of manslaughter under § 13-1103(A)(2) rather than second-degree

murder. See Garcia, 220 Ariz. 49, ¶¶ 6-7, 202 P.3d at 516 (acknowledging logic of

argument against applying LeBlanc instruction to heat-of-passion manslaughter). But,

although the point Eddington raises is academically interesting and may warrant future

clarification by our supreme court, we need not resolve it here, given the fundamental-

error posture of this case.



                                            19
¶32           Even if we assume it was error to give the LeBlanc instruction as to heat-of-

passion manslaughter, the jury was aware both from defense counsel‟s argument and

from the trial court‟s instructions that, if the murder was the result of a sudden quarrel or

the heat of passion stemming from adequate provocation by the victim, Eddington would

be guilty of the less serious offense of manslaughter, not second-degree murder. The jury

was instructed pursuant to A.R.S. § 13-115(B) as follows: “If you determine that the

defendant is guilty of either second degree murder or manslaughter by sudden quarrel or

heat of passion but you have a reasonable doubt as to which it was, you must find the

defendant guilty of manslaughter by sudden quarrel or heat of passion.” The lesser

offense was therefore in jurors‟ minds when they rendered their verdict on second-degree

murder, and they had been clearly instructed that adequate provocation would be a

ground for finding Eddington not guilty of the offense of which he was convicted.

Cf. Garcia, 220 Ariz. 49, ¶ 7, 202 P.3d at 516 (presuming jury would not disregard

definition of manslaughter when rendering verdict on second-degree murder).

Accordingly, we do not find the instruction here resulted in prejudice.

¶33           Given this lack of prejudice, we need not address Eddington‟s additional

arguments based on his alternative contentions that (1) inadequate provocation is an

element of second-degree murder or (2) adequate provocation is an affirmative defense

that a defendant bears the burden of proving by a preponderance of the evidence.

Assuming Eddington is correct on either point, the jury‟s verdict here included an

implicit finding that the murder was not the result of adequate provocation. And, as to

                                             20
the second point specifically, he was not prejudiced to the extent the trial court‟s

instructions relieved him of his burden of proof. Cf. State v. Valverde, 220 Ariz. 582,

¶ 17, 208 P.3d 233, 237 (2009) (finding no prejudice in failure to instruct jury regarding

defendant‟s burden of proving self-defense). Moreover, Eddington‟s failure to support

his prejudice argument in his opening brief with citations to the record provides an

independent ground to reject his claims. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (requiring

appellant to provide citation to record for each contention raised). Because he has not

discharged his burden of showing prejudice pursuant to Henderson, we deny relief.

Manslaughter

¶34            The trial court instructed the jury that it could consider the lesser offense of

manslaughter only if it acquitted Eddington of first- and second-degree murder and heat-

of-passion manslaughter or if, after a full consideration of the facts, it was unable to reach

a verdict on these three offenses. The court then provided the following manslaughter

instruction:

               The crime of manslaughter requires proof that the defendant:

                      1. caused the death of another person; and

                      2. was aware of and showed a conscious disregard of
               a substantial and unjustifiable risk of death.

                      The above definition of recklessly applies to this
               offense.

                       Second degree murder and manslaughter may both
               result from recklessness. The difference is that the culpable


                                              21
              recklessness involved in manslaughter is less than the
              culpable recklessness involved in second degree murder.

                    If you determine that the defendant is guilty of either
              second degree murder or manslaughter but you have a
              reasonable doubt as to which it was, you must find the
              defendant guilty of manslaughter.

¶35           Eddington contends the trial court “prejudicially misstated the law by

erroneously defining reckless manslaughter as a lesser included offense of heat of passion

manslaughter.” He alleges he suffered prejudice, specifically, because “the jury was

instructed that it had to either acquit [or hang] on heat of passion manslaughter . . . before

it could consider reckless manslaughter,” when jurors should have been “permitted . . .

and instructed to . . . consider both forms of manslaughter at the same time.”

¶36           But we find no prejudice here.        The jury was properly instructed that

manslaughter is a lesser-included offense of reckless second-degree murder. See State v.

Valenzuela, 194 Ariz. 404, ¶ 11, 984 P.2d 12, 14-15 (1999). The jury was also made

aware that second-degree murder and manslaughter are similar offenses and that, to find

Eddington guilty of the greater offense, all jurors had to be convinced beyond a

reasonable doubt that he was guilty of second-degree murder rather than manslaughter.

The record thus suggests the jury necessarily considered the elements of manslaughter

pursuant to A.R.S. § 13-1103(A)(1) when it found Eddington guilty of second-degree

murder.

¶37           To the extent the trial court erred in informing the jurors they first had to

consider heat-of-passion manslaughter before they could consider reckless manslaughter,

                                             22
any such error did not affect the verdict. Thus, no prejudice has been shown on the

record before us.

                                       Disposition

¶38           For the foregoing reasons, we affirm Eddington‟s conviction and sentence.




                                             /s/ Peter J. Eckerstrom
                                             PETER J. ECKERSTROM, Judge

CONCURRING:


/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge


K E L L Y, Judge, specially concurring.


¶39           I concur with my colleagues‟ decision affirming Eddington‟s conviction

because Eddington was not prejudiced by the trial court‟s refusal to strike a venireperson

for cause. But I disagree with their conclusion that the court abused its discretion by not

striking the deputy for cause. And I disagree with their creation of a new per se rule

disqualifying peace officers from jury service when their agency conducted the

investigation that is the subject of a criminal trial.    As a preliminary matter, it is

unnecessary for us to address whether the court erred when it denied Eddington‟s motion

to strike the deputy for cause. “A defendant in a criminal case must show prejudice”

before he is entitled to harmless error review for the curative use of a peremptory
                                            23
challenge. State v. Hickman, 205 Ariz. 192, ¶ 28, 68 P.3d 418, 424 (2003). Because

Eddington failed to prove the denial of his challenge for cause resulted in a jury that

could not be fair and impartial, he has shown no prejudice. Absent a showing of

prejudice, Eddington is not entitled to review, and we need not consider or analyze

whether the court erred in refusing to strike the deputy for cause. But my colleagues

nevertheless have granted review and decided that the trial court abused its discretion.

I disagree.

¶40           Here, the court conducted appropriate voir dire on all of the issues

potentially related to whether the deputy should have been struck for cause. After the

court learned that the deputy was employed by the Pima County Sheriff‟s Department

and knew “about half” of the witnesses, it asked him whether his employment and

familiarity with witnesses would affect his ability to be fair and the deputy said it would

not. The deputy expressly stated that neither his training in law enforcement nor his

employment as a court security officer for the previous two years would affect his ability

to be fair and impartial.

¶41           At the request of Eddington‟s counsel, the court called the deputy to the

bench and allowed counsel to question him. He told her he did not recognize Eddington

or the names of his codefendants and that he had limited contact with defendants in the

courthouse. He stated that other than the two years he had been working as a courtroom

deputy, he had been a detective in Green Valley and “a corrections officer at [the] very

beginning.” The deputy told counsel he knew, but had not worked with or had a personal

                                            24
relationship with, one of the investigating detectives, and that he knew “[m]aybe a third”

of the other investigators. The deputy said that he would not assign more credibility to

officers from the same agency. He also reported he had heard nothing about the case.

Based on the deputy‟s answers, the court concluded there was “not sufficient basis to

strike him for cause.” The trial court‟s decision is entitled to deference because the trial

court has the opportunity to observe “the prospective juror‟s demeanor and the tenor of

his answers,” State v. Munson, 129 Ariz. 441, 443, 631 P.2d 1099, 1101 (1981), and “is

in a position to determine first hand whether a juror can render a fair and impartial

verdict,” State v. Rose, 121 Ariz. 131, 139, 589 P.2d 5, 13 (1978).

¶42            Relying upon A.R.S. § 21-211, my colleagues conclude today that the trial

court erred by failing to disqualify the deputy because he had an interest in the case.

“The decision as to whether a juror [is] disqualified in a particular case rests in the sound

discretion of the trial court, based upon the evidence.” State v. Moraga, 98 Ariz. 195,

200, 403 P.2d 289, 293 (1965). Although Eddington never squarely raised this issue in

the trial court,13 it is presumed the court knew the criteria set forth in A.R.S. § 21-211 for

disqualification of jurors. Cf. State v. Ramirez, 178 Ariz. 116, 128, 871 P.2d 237, 249

(1994) (“[T]he trial court is presumed to know and follow the law.”). The trial court

conducted appropriate voir dire on all of the issues potentially related to whether the


       13
         The issue of whether the deputy would be disqualified from jury service because
he had an interest in the case based on his employment was neither raised in the trial
court nor in Eddington‟s opening brief. It was not until we requested supplemental
briefing on this issue that any party addressed it.
                                             25
deputy might have an interest in the case. Thus, it gave focused attention to the facts

which might have supported such a finding.            Having done so, the court implicitly

concluded that those facts did not support a finding that the deputy was disqualified from

jury service on this case.

¶43           I cannot agree with my colleagues‟ finding of error based on the application

of their new per se rule that peace officers must be disqualified when their agency

conducted the criminal investigation because they “have a particular interest in seeing

that matters their offices have investigated are prosecuted successfully.” Although I

agree there are many situations in which it would be appropriate for the trial court, in the

exercise of its discretion, to disqualify a similarly situated venireperson, I reject the

creation of a per se rule which strips the trial court of its fact-finding role and discretion.

¶44           I disagree with my colleagues‟ announcement of this new rule because such

action is more appropriate for the legislature or our supreme court, in its rule-making

capacity, after due consideration of the rule‟s effect on the various jurisdictions within

our state and the practicality of its application in connection with multi-agency

investigations. A rule-making body could address, for example, my concern that the rule

sweeps too broadly. In a county with millions of residents, thousands of law enforcement

officers, and great distances between its communities, there will be situations in which

the court appropriately finds that the peace-officer venireperson had no direct or indirect

interest in the outcome of the criminal case investigated by his or her agency. At the

same time, the rule is too narrow to serve its purported purpose because it does not

                                               26
encompass other employees of investigating agencies who share the same alleged

interests as the peace officers. I see no reasoned basis to exclude from a criminal jury

peace officers employed by the investigating law enforcement agency, but not counsel or

clerical and laboratory employees employed by the same agency. Additionally, my

colleagues have not addressed the rule‟s effect on small counties with small jury pools.

¶45           Neither our supreme court, in modifying the rule governing challenges for

cause, nor the legislature, in amending the statute governing excuse from jury duty, found

it necessary to create such a per se rule, even though these were logical opportunities for

such action had either the legislature or the court considered it appropriate. Rule 18.4(b),

Ariz. R. Crim. P., provides that the trial court shall strike a juror for cause “[w]hen there

is reasonable ground to believe that a juror cannot render a fair and impartial verdict.”

My colleagues cite the comment to this rule in support of their position, stating that a

challenge for cause may arise from the fact that a venireperson “stands in the relationship

of . . . master and servant” to a party. But, that comment states that the list of possible

grounds for disqualification, which had been part of the 1956 Arizona Rules of Criminal

Procedure, and the source of the ground of a master-servant relationship, was removed

from the rule in order to “direct the attention of attorneys and judges to the essential

question—whether a juror can try a case fairly.” Thus, the court moved away from a per

se rule in favor of a more balanced approach focused on whether a potential juror could

be fair. That is a matter better determined by the trial court.



                                             27
¶46            Finally, I note that our legislature recently has provided that a peace officer

may apply to be excused temporarily from jury duty. A.R.S. § 21-202(B)(5). The peace

officer‟s employer is expressly prohibited from influencing in any way the peace officer‟s

decision to seek to be excused from jury service. Thus, in recently considering the

propriety of having peace officers serve as jurors, our legislature has clarified that peace

officers have that right, and has given the peace officer the right to decide if he or she

wishes to serve. In view of the legislature‟s recent consideration of peace officers‟ jury

service, I expect that, if the legislature had wished to create a per se prohibition against

peace officers sitting on juries in certain circumstances, it would have done so, as have

the legislatures of other states.14 Cf. Cal. Civ. Proc. Code § 219(b)(2) (“[N]o peace

officer . . . shall be selected for voir dire in criminal matters.”); Cal. Civ. Proc. Code

§ 229(b) (“A challenge for implied bias may be taken” if the venireperson “[s]tand[s] in

the relation of . . . master and servant . . . to either party . . . .”); Colo. Rev. Stat. § 16-10-

103(1)(k) (“The court shall sustain a challenge for cause” if “[t]he juror is a compensated

employee of a public law enforcement agency or a public defender‟s office.”).

¶47            Accordingly, because we are not required in the first instance to reach the

issue of error and because the record supports the trial court‟s exercise of its discretion in

denying Eddington‟s motion to strike the deputy for cause, I disagree with my


       14
          Two of the three out-of-state cases upon which my colleagues rely were decided
in states where such specific statutory support for a rule of this nature exists. See People
v. Terry, 35 Cal. Rptr. 2d 729, 732 (Ct. App. 1994); Tate v. People, 247 P.2d 665, 670-71
(Colo. 1952).
                                             28
colleagues‟ conclusion that the court abused its discretion in refusing to strike the deputy

or disqualify him for cause.        Because Eddington failed to raise the issue of

disqualification under § 21-211 in his opening brief and because the creation of a per se

disqualification rule is more appropriate for the legislature or the supreme court in its

rule-making capacity, I cannot agree with today‟s creation of a broad new rule

disqualifying certain peace officers from serving as jurors. I concur with the majority

opinion in all other respects.

                                                 /s/ Virginia C. Kelly
                                                 VIRGINIA C. KELLY, Judge




                                            29
