                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                       DIAMORRIO REED, Appellant.

                             No. 1 CA-CR 16-0792
                               FILED 8-10-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-002039-001
                   The Honorable Dean M. Fink, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

The Law Office of Kyle T. Green PLLC, Tempe
By Kyle Green
Counsel for Appellant
                               STATE v. REED
                             Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Maria Elena Cruz and Retired Judge Patricia A. Orozco1
joined.


J O N E S, Judge:

¶1            Diamorrio Reed appeals his convictions and sentences for two
counts of sexual conduct with a minor, one count of kidnapping, and one
count of sexual abuse, arguing the trial court abused its discretion in
denying his motion to strike the entire jury panel for cause due to a
potential juror’s emotional outburst that occurred during voir dire. For the
following reasons, we affirm.

                 FACTS2 AND PROCEDURAL HISTORY

¶2            In December 2014, Reed was charged with two counts of
sexual conduct with a minor, one count of kidnapping, and one count of
sexual abuse, arising out of events occurring in 2002. Trial was held in
October and November 2014. In the course of voir dire, the trial judge asked
potential jurors whether “there [was] anything about the nature of this case
that would make it difficult for . . . [them] to serve as a fair and impartial
juror.” Prospective Juror 78 responded affirmatively, stating:

       [In] December of 2013 my husband was killed by a hit and
       run, and the justice system didn’t — wasn’t fair. And I think
       anyone who is guilty and says they’re not guilty, I would not
       be fair. I want them all that are guilty to hang, which should




1      The Honorable Patricia A. Orozco, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Sections 3 and 20, of the Arizona Constitution.

2       “We view the evidence and all reasonable inferences therefrom in
the light most favorable to sustaining the jury’s verdicts.” State v. Miles, 211
Ariz. 475, 476, ¶ 2 (App. 2005) (citing State v. Riley, 196 Ariz. 40, 42, ¶ 2 (App.
1999)).


                                        2
                              STATE v. REED
                            Decision of the Court

       be killed the same way or whatever they did, the same thing
       done to them.

       ...

       It was just a week ago. Seventeenth was when this, when the
       jury let the guy walk. So I’m very angry with the justice
       system right now, and I think people who are guilty should
       pay for what they’ve done.

She then expressed her belief that if the State had enough evidence to go to
trial, the defendant must be guilty. On follow-up, Prospective Juror 78
reiterated her frustration that guilty people do not always get convicted and
affirmed “they should pay for what they’ve done and not be able to walk
out.” Prospective Juror 78 was later stricken for cause.

¶3             Reed then moved to strike the entire jury panel for cause
based upon the emotional answers given in open court, fearing the
statements’ impact upon the remaining jurors before they even had a
chance to hear evidence. The State opposed the motion, noting that “[j]ust
because . . . the [potential] jurors were emotional when they responded to
certain questions does not mean necessarily that anybody on the panel was
tainted.”

¶4             The judge acknowledged “there were some greater emotions”
in this case than typically seen in jury selection. However, rather than strike
the entire panel, he indicated his inclination to explore, through additional
questioning of the remaining jurors, whether they had actually been
affected by Prospective Juror 78’s remarks. Defense counsel did not agree
further questioning would resolve the issue but did not object to the
additional questioning.

¶5           In exploring the issue, the trial judge was careful not to
reference Prospective Juror 78’s comments specifically; rather, the judge
asked the remaining potential jurors:

       We have had some jurors who have given some very strong
       opinions, or who have had some emotional reactions to some
       of the questions that have been asked today. My question for
       you is, are any of you going to be affected by either the strong
       opinion or the emotional reaction that a juror earlier today
       might have given that might cause you to be unable to be fair
       and impartial?



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                               STATE v. REED
                             Decision of the Court

None of the remaining jurors responded, and the trial court denied Reed’s
motion to strike.

¶6             Reed was ultimately convicted as charged and sentenced to a
total of eighty-eight years’ imprisonment. Reed timely appealed, and this
Court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.)
sections 12-120.21(A)(1),3 13-4031, and -4033(A)(1).

                                DISCUSSION

¶7            Reed argues the trial court erred by not striking the entire jury
panel. Reed asserts Prospective Juror 78’s comments tainted the entire
panel of prospective jurors, making it impossible to receive a fair trial in
violation of his due process rights.

¶8               Arizona Rule of Criminal Procedure 18.4(a) provides that
“[e]ither party may challenge the panel on the ground that in its selection
there has been a material departure from the requirements of law.” In
doing so, the party challenging the panel must show either that the jury was
unlawfully empaneled or that the jurors could not be fair and impartial. See
State v. Greenwalt, 128 Ariz. 150, 167 (1981); see also U.S. Const. amend. VI
(“In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed.”); Ariz. Const. art. 2, § 24 (“In criminal
prosecutions, the accused shall have the right to . . . have a speedy public
trial by an impartial jury.”). We review a ruling on a motion to strike a jury
panel for an abuse of discretion. See State v. Glassel, 211 Ariz. 33, 45, ¶ 36
(2005) (citing State v. Carlson, 202 Ariz. 570, 579, ¶ 29 (2002)). The trial court
is in the best position to assess the impact of a prospective juror’s comments
on others. State v. Doerr, 193 Ariz. 56, 62, ¶ 23 (1998). Therefore, we will
not find an abuse of discretion “unless the record affirmatively shows that
. . . a fair and impartial jury was not secured.” State v. Lujan, 184 Ariz. 556,
560 (App. 1995) (quoting State v. Arnett, 119 Ariz. 38, 50 (1978)).

¶9            We do not find fault with Reed’s characterization of
Prospective Juror 78’s comments as provocative, biased, inflammatory, and
inconsistent with Reed’s constitutional right to a presumption of innocence.
But “[u]nless there are objective indications of jurors’ prejudice, we will not
presume its existence.” State v. Tison, 129 Ariz. 526, 535 (1981). Reed does
not identify any objective evidence of prejudice. None of the remaining


3     Absent material changes from the relevant date, we cite a statute’s
current version.


                                        4
                              STATE v. REED
                            Decision of the Court

panel members displayed any emotional reaction or otherwise responded
to Prospective Juror 78’s diatribe. Moreover, no juror ultimately empaneled
indicated an inability to be fair and impartial, even after having been
present during Prospective Juror 78’s comments and observing her
emotional reaction. “Although the court should remove for cause any juror
who expresses serious misgivings about the ability to be fair and impartial”
— just as the trial court did here with Prospective Juror 78 — the court need
not remove jurors who otherwise indicate they can be fair and impartial.
State v. Blackman, 201 Ariz. 527, 533, ¶ 12 (App. 2002) (citing State v. Smith,
182 Ariz. 113, 115 (App. 1995), and State v. Reasoner, 154 Ariz. 377, 384 (App.
1987)).

¶10            “Excusing jurors is within the sound discretion of the trial
court, and its actions will not be disturbed absent ‘a clear and prejudicial
abuse of that discretion.’” Lujan, 184 Ariz. at 560 (quoting Arnett, 119 Ariz.
at 50). Prospective Juror 78 acknowledged her own inability to be fair and
impartial given her own experience with the justice system and
presumptions she bore regarding a defendant’s guilt simply by virtue of
being charged with a crime and exercising his right to a jury trial; but such
“non-expert” opinion statements are not presumed to taint the jury pool.
See Doerr, 193 Ariz. at 62, ¶¶ 19-20. Furthermore, in the absence of objective
indicia that Prospective Juror 78’s comments affected the other jurors’
ability to be fair and impartial, Reed cannot establish prejudice.
Accordingly, we find no abuse of discretion. See Bauta v. State, 698 So. 2d
860, 861-62 (Fla. Dist. Ct. App. 1997) (finding no abuse of discretion in the
trial court’s denial of the defendant’s motion to discharge the jury panel
following a prospective juror’s emotional outburst where further
examination of the remaining jury panel members revealed their objectivity
had not been affected by the outburst).

                               CONCLUSION

¶11           Reed’s convictions and sentences are affirmed.




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




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