                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                  JESSE RICHARD CISNEROS, Appellant.

                             No. 1 CA-CR 17-0182
                               FILED 6-18-2019


         Appeal from the Superior Court in Maricopa County
                      No. CR 2015-138997-001
       The Honorable Christine E. Mulleneaux, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
                           STATE v. CISNEROS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which Judge
Kent E. Cattani joined. Presiding Judge Jennifer B. Campbell specially
concurred.


M c M U R D I E, Judge:

¶1           Jesse Richard Cisneros appeals his convictions of aggravated
assault and possession or use of marijuana and the resulting sentences.
Cisneros argues that the superior court committed structural error by
denying his motion to strike prospective juror number 48 (“Juror 48”) for
cause, causing the jury to be tainted by a biased juror. For the following
reasons, we affirm Cisneros’s convictions and sentences.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Cisneros was charged with several counts related to an
aggravated assault involving a weapon and the subsequent discovery of
marijuana in his car. During voir dire, Cisneros’s counsel asked the
following questions related to whether a juror would want to hear “both
sides of a story”:

       A defendant doesn’t have to offer any witnesses. They don’t
       have to offer any exhibits. That’s what the law is.

       Does anybody, when you think about that, think about, you
       know, in your everyday life you want to hear both sides of the
       story, maybe. You think about if you’re accused of something,
       you’d want to tell your side.

       That being, maybe being, the case, is there anybody who,
       when you honestly think about it, would have a hard time in
       this case if the defense didn’t present any evidence? Is there
       anybody who would want to hear both sides?

¶3            After discussion with other jurors on these questions, Juror 48
raised his juror card. The following exchange between Cisneros’s counsel
and Juror 48 occurred:




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                          Decision of the Court

      [Cisneros’s counsel]: 48, what can you tell me about your
      concern as far as both sides of the story?

      [Juror 48]: . . . [I]f the State presented a compelling argument
      and the defense side did not defend themselves, it would lead
      me to believe that the defense was guilty.

      [Cisneros’s counsel]: Even if the Court instructed you that
      that wasn’t the way the law works, that’s not how the law
      operates as far as a defendant, would you still have those
      feelings a little bit?

      [Juror 48]: Right. If the State couldn’t present a compelling
      argument, then that would probably be okay for me, if they
      didn’t actually present a statement.

                              *      *      *

       [Juror 48]: If [the State] did not present a compelling
      argument of guilt, then I would probably understand why the
      defendant would not want to speak up. But if the State did
      present evidence of a crime, I would think that they would
      want to defend themselves.

      [Cisneros’s counsel]: Okay. So specifically if the State did
      present some evidence that a crime occurred and the defense
      offered no evidence, you’d have a problem? You’d hold that
      against the defendant?

      [Juror 48]: Yes.

¶4             Once questioning ended, the court suggested a list of
prospective jurors to be stricken for cause, including Juror 48. The State
objected to striking Juror 48, stating:

      What I understood him saying is that if the State proves its
      case beyond a reasonable doubt, he would convict. If the
      defense didn’t present any evidence, then he would need to
      convict because that’s what the law requires. He would want
      to hear from the defense, if the State had proven its case, for
      contrary testimony. But he said that if the State had proven its
      case, he would hold them to that burden. So I don’t think
      there’s anything contrary to what the law says on that juror.




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                            Decision of the Court

Cisneros’s counsel argued that the line of questioning centered on Juror 48’s
belief that an innocent defendant would present evidence to rebut the
State’s case. He explained that rather than applying a reasonable doubt
standard, Juror 48 would look for “compelling” evidence—a standard that
perhaps fell below reasonable doubt. The court denied Cisneros’s motion
to strike Juror 48.

¶5            After the court struck other prospective jurors for cause, both
the prosecution and defense were given six peremptory strikes. Neither
side struck Juror 48, and he served on the jury. At trial, the State presented
several witnesses in support of its case. Cisneros called only one witness,
an investigator employed by Cisneros’s counsel. Cisneros did not testify
and was only present for two out of the five days of trial.

¶6            The court read final instructions to the jury before it began
deliberations. The instructions repeated the presumption of innocence and
charged the jury to disregard Cisneros’s failure to testify or any failure to
supply evidence while considering its finding of guilt or innocence. The
court charged the jury to comply with its instructions.

¶7            After deliberation, the jury found Cisneros guilty of
aggravated assault and possession or use of marijuana. The defense polled
the jury, and each juror confirmed the verdicts. Cisneros timely appealed,
and we have jurisdiction under Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                                DISCUSSION

¶8            Cisneros argues that the superior court abused its discretion
by denying his motion to strike Juror 48 for cause because the juror’s voir
dire answers revealed a bias against a non-testifying defendant. Cisneros’s
argument fails, however, because neither Juror 48 nor any of the other
prospective jurors expressed disagreement with an express statement
during voir dire that “a defendant in a criminal case has a right not to testify”
and that “[t]he exercise of that right cannot be considered by the jury in
determining guilt or innocence.” Juror 48’s subsequent comments that
Cisneros challenges on appeal did not expressly state a bias against a
non-testifying defendant, and neither the prosecutor nor defense counsel
interpreted Juror 48’s comments to be directed at whether a defendant
chose not to testify. Under the circumstances presented, the superior court
reasonably interpreted Juror 48’s comments to relate to the need for a
defendant to provide some type of rebuttal evidence if the State presents a
compelling case against the defendant. The court did not err by accepting



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                             STATE v. CISNEROS
                             Decision of the Court

the parties’ interpretation of Juror 48’s comments and by concluding that
Cisneros did not establish a basis for striking Juror 48 for cause.

¶9            Arizona law provides that cause to excuse a prospective juror
exists “[w]hen there is reasonable ground to believe that a juror cannot
render a fair and impartial verdict.” Ariz. R. Crim. P. 18.4(b) (2016). “The
party challenging the juror bears the burden of establishing that the juror
could not be fair and impartial.” State v. Hoskins, 199 Ariz. 127, 139, ¶ 37,
(2000), supplemented on other grounds, 204 Ariz. 572 (2003); State v. Trostle,
191 Ariz. 4, 13 (1997). In assessing a potential juror’s fairness and
impartiality, the superior court has the best opportunity to observe
prospective jurors and thereby judge the credibility of each. See State v.
Lavers, 168 Ariz. 376, 390 (1991); State v. Pawley, 123 Ariz. 387, 389 (App.
1979). For that reason, “we will not set aside the trial court’s ruling on a
challenge to a juror absent a clear showing that the court abused its
discretion.” Lavers, 168 Ariz. at 390.

¶10            “Impartiality is not a technical conception. It is a state of mind.
For the ascertainment of this mental attitude of appropriate indifference,
the Constitution lays down no particular tests and procedure is not chained
to any ancient and artificial formula.” United States v. Wood, 299 U.S. 123,
145–46 (1936). The United States Supreme Court has held that jury selection
is “particularly within the province of the trial judge.” Ristaino v. Ross, 424
U.S. 589, 595 (1976) (quoting Rideau v. Louisiana, 373 U.S. 723, 733 (1963)
(Clark, J., dissenting)). “Reviewing courts are properly resistant to
second-guessing the trial judge’s estimation of a juror’s impartiality, for that
judge’s appraisal is ordinarily influenced by a host of factors impossible to
capture fully in the record—among them, the prospective juror’s inflection,
sincerity, demeanor, candor, body language, and apprehension of duty.”
Skilling v. United States, 561 U.S. 358, 386 (2010) (emphasis added). A court’s
rulings on for-cause challenges also reflect a recognition that juror
testimony on voir dire may be “ambiguous and at times contradictory.”
Patton v. Yount, 467 U.S. 1025, 1039 (1984). “[T]he lay persons on the panel
may never have been subjected to the type of leading questions and
cross-examination tactics that frequently are employed,” and therefore,
they “cannot be expected invariably to express themselves carefully or even
consistently.” Id. Thus, provided “the juror ultimately assures the court that
he or she can be fair and impartial, the juror need not be excused.” State v.
Purcell, 199 Ariz. 319, 323, ¶ 8 (App. 2001); see also State v. Payne, 233 Ariz.
484, 499, ¶ 23 (2013).

¶11           The superior court did not abuse its discretion by declining to
strike Juror 48 for cause. Juror 48’s statement that he “would probably


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                           STATE v. CISNEROS
                           Decision of the Court

understand why the defendant would not want to speak up” if the State
did not present a “compelling argument of guilt” can be reasonably
construed as focusing on the strength of the State’s case, and whether—as
the juror further noted—the defendant “would want to defend themselves”
should the State present compelling evidence of guilt. Whether a defendant
wants to defend himself does not necessarily implicate a requirement that
a defendant testify. Juror 48’s acknowledgment that he would be willing to
acquit the defendant if the State did not prove its case provided a basis from
which the court could conclude the juror would not improperly penalize a
defendant for not testifying or presenting a case.

¶12           Moreover, neither Cisneros’s counsel nor the prosecutor
considered Juror 48’s statement to be focused on a defendant’s decision not
to testify. The prosecutor paraphrased Juror 48’s views as requiring
“contrary testimony”—without indicating testimony from the defendant
himself—if the State presented a compelling case. Neither Cisneros’s
counsel nor the court disagreed with that depiction of Juror 48’s views.
Under these circumstances, the superior court did not abuse its discretion
by interpreting Juror 48’s statement to be focused on the burden of proof
applicable in a criminal case.

¶13           Nor has Cisneros established that Juror 48 did not understand
the burden of proof required for a criminal case. There is not a significant
distinction between Juror 48’s layman’s view of requiring “compelling
evidence” versus a legal requirement of being “firmly convinced” of guilt.
And the superior court informed the jury of the State’s burden of proof and
the defendant’s presumption of innocence before the exchange between
Cisneros’s counsel and Juror 48 occurred, stating:

       The law requires that the State prove the defendant guilty
       beyond a reasonable doubt. The defendant is presumed by
       law to be innocent. This means that the defendant is not
       required to prove innocence or to produce any evidence. . . .

       Also, a defendant in a criminal case has a right not to testify
       at a trial. The exercise of that right cannot be considered by
       the jury in determining guilt or innocence.

The court then asked if any prospective juror did not understand or agree
with those principles of law. Juror 48 did not indicate any
misunderstanding or disagreement. After Cisneros’s counsel questioned
Juror 48, he continued to explore the jurors’ perspective on the State’s
burden, asking:



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                             STATE v. CISNEROS
                             Decision of the Court

       [L]et’s say you are only 51 to 60 percent sure that the State’s
       version of events is correct. You think maybe [the crime]
       happened, but you are not firmly convinced. . . . There’s
       reasonable doubts left. But you still think that what the State
       is saying happened, might have happened, maybe even
       probably happened, but not quite to that reasonable doubt
       level. . . . Is there anybody who would have a problem voting
       for acquittal because, you know, I think something probably
       happened; it’s not quite proven to me, but I just can’t vote for
       acquittal because I think it probably happened, but no more?

Juror 48 again did not indicate any issue with acquitting a defendant in that
scenario. After several other jurors expressed confusion with counsel’s
questions and phrasing of the State’s burden of proof, the court clarified:

       Ignore that 51 percent. [Cisneros’s counsel is] talking about a
       civil standard which does not apply to this case. You will be
       given instructions, if you are part of the jury panel, that
       beyond a reasonable doubt, the standard is that you are firmly
       convinced. That’s what reasonable doubt is, but you’ll be
       given a definition later. . . . So [Cisneros’s counsel’s] question
       is if you believe the State has not met their burden of proof,
       which is beyond a reasonable doubt, which leaves you firmly
       convinced of the defendant’s guilt, can you find his client not
       guilty? If you can’t follow that instruction, that [is] what he’s
       trying to figure out.

Juror 48 once again did not indicate any issue with following the court’s
instruction.

¶14            Although Juror 48 may not have answered the voir dire
questions with lawyerly precision, the superior court decides if a juror
ultimately can be fair and impartial and follow the instructions as given.
Patton, 467 U.S. at 1039. The court acted within its discretion by determining
that Juror 48 had a proper understanding or “apprehension of duty.”
Skilling, 561 U.S. at 386; see also Purcell, 199 Ariz. at 323, ¶¶ 12–13 (court did
not err by refusing to strike a juror who initially expressed the belief that
personal experiences might affect her, but later indicated she could be fair
and impartial). Juror 48’s statements and acknowledgments, when read
together, do not reveal “an inability to serve as a fair and impartial juror.”
Lavers, 168 Ariz. at 391. Thus, because Cisneros has not carried his burden
of showing that Juror 48 could not be fair and impartial, he has not




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                            STATE v. CISNEROS
                            Decision of the Court

established that the court abused its discretion by denying the motion to
strike Juror 48 for cause. 1

                              CONCLUSION

¶15          For the foregoing reasons, we affirm Cisneros’s convictions
and sentences.


C A M P B E L L, J., Concurring in the Judgment:

¶16            Under the “cure or waive” rule adopted in State v. Rubio, 219
Ariz. 177, 181, ¶ 12 (App. 2008), Cisneros has waived review of his claim of
error because he failed to use his peremptory challenge on Juror 48. While
unfair or biased jurors should be removed for cause, when an error occurs,
“the defendant should peremptorily strike a truly biased or unqualified
juror before peremptorily striking a juror for a lesser reason not affecting
his right to a fair and impartial trial.” Id. Failure to do so waives the issue
on appeal. Id. Here, although Cisneros had six peremptory strikes, he failed
to use one to remove Juror 48. He used all his available strikes to remove
jurors he had not challenged for cause. Accordingly, Cisneros waived this
issue by failing to use a peremptory strike to remove the biased juror.

¶17             I note that the “cure or waive” rule in conjunction with other
Arizona caselaw gives defendants a small window to challenge the
presence of a biased juror. Indeed, under State v. Hickman, 205 Ariz. 192,
198, ¶ 28 (2003), our supreme court concluded that the curative use of a
peremptory strike was subject to harmless error review. Read together,
Hickman and Rubio leave no avenue for a defendant to appeal the superior
court’s denial of a request to strike a biased juror for cause: Hickman bars
relief when the defense uses a peremptory strike; Rubio bars relief when the
defense fails to do so. Even though an appeal is not available when the court
fails to strike a biased juror for cause, an avenue for correction does exist—
the peremptory strike itself. Indeed, peremptory challenges exist to ensure
the selection of an unbiased jury. Georgia v. McCollum, 505 U.S. 42, 57 (1992);


1      Because we conclude the court did not err by failing to strike Juror
48 for cause, we decline to address whether Cisneros’s failure to use a
peremptory strike to remove Juror 48 waived any claim of error under the
“cure or waive” rule announced in State v. Rubio, 219 Ariz. 177, 181, ¶ 12
(App. 2008), or whether it would be structural error to allow a biased juror
to serve.



                                      8
                         STATE v. CISNEROS
                     Campbell, J., Specially Concurring

Rubio, 219 Ariz. at 180, ¶ 9. Cisneros had the opportunity to cure the
superior court’s error with a mechanism designed for this very purpose. By
failing to do so, he has waived any error on appeal.

¶18            Cisneros argues that the presence of Juror 48 constituted
structural error. I disagree. “Unlike trial errors, structural errors deprive
defendants of basic protections without which a criminal trial cannot
reliably serve its function as a vehicle for determination of guilt or
innocence . . . and no criminal punishment may be regarded as
fundamentally fair.” State v. Ring, 204 Ariz. 534, 552, ¶ 45 (2003) (quotations
and citations omitted). Arizona law provides a structural safeguard for a
defendant to cure error when he believes that a juror should have been
stricken for cause—use of a peremptory strike. Failure to use a strike in this
fashion waives the issue on appeal and may allow a biased juror to sit on a
jury panel. Arizona law already permits this in certain circumstances. See,
e.g., State v. Bravo, 131 Ariz. 168, 171 (App. 1981) (“[E]ven though the
answers of a venireman demonstrate that he cannot be fair and impartial,
the challenge may be waived.”). Moreover, Juror 48 was properly
instructed on Cisneros’ right to remain silent and that as a defendant, he
need not present any evidence. We presume that jurors follow instructions
given by the court. State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006). Therefore,
I would not hold that the superior court’s error was structural.

¶19           This analysis could evolve should a situation arise where a
defendant lacked sufficient peremptory strikes to secure a fair and
impartial jury. See, e.g., State v. Acuna Valenzuela, 245 Ariz. 197, 209, ¶ 23
(2018). But here, no structural error exists. Cisneros was granted the basic
protections required for his trial to serve as a vehicle for determination of
guilt or innocence, including sufficient peremptory strikes to ensure a fair
and impartial jury.




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




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