Court of Appeals of Arizona, Second Division, Department B
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20120017001 Honorable Howard Hantman, Judge
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Kathryn A. Damstra Tucson Attorneys for Appellee.
Manch Law Firm, PLLC By Eric S. Manch Tucson Attorney for Appellant.
VIRGINIA C. KELLY, Judge.
¶1 Christopher Eck appeals from his convictions and sentences for one count each of assault and aggravated assault with a deadly weapon or dangerous instrument. He argues the trial court erred in denying his Batson challenge to the state's peremptory strike of a potential juror, denying his motion for a mistrial and motion for a judgment of acquittal, and giving a jury instruction that he claims improperly shifted the burden of proof to him. We vacate Eck's assault conviction and affirm his aggravated assault conviction.
¶2 "We view the facts in the light most favorable to sustaining the convictions." State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). One evening in December 2011, Eck invited victim R.F. to his home. The two spent the evening "hanging out and drinking" with Eck's girlfriend B.H. Eck was listening to the radio and, at some point, R.F. turned it off. Eck became angry and told R.F., "[D]on't ever . . . touch my radio." R.F. felt "uneasy" and began gathering his things to leave. Eck repeatedly asked R.F. to stay and, when R.F. refused, Eck "took offense" and pulled out a knife. R.F. tried to dial 9-1-1 on his cellular telephone, but Eck cut him on the top of his hand before he could complete the call. B.H. screamed at Eck to stop and, as R.F. was trying to leave the home, Eck stabbed him two times. Outside, Eck continued to attack R.F. until neighbors eventually separated them. Eck later admitted to police that he had stabbed R.F., but claimed he had been attacked first by R.F. Eck was arrested and convicted as described above. The trial court imposed concurrent sentences, the longer of which was five years' imprisonment, and this appeal followed. Discussion Batson Challenge
¶3 Eck argues the trial court erred by denying his Batson challenge to the state's peremptory strike of prospective juror W.M., an African American veniremember. We review the court's decision for clear error. State v. Gallardo, 225 Ariz. 560, ¶ 10, 242 P.3d 159, 164 (2010).
¶4 In Batson v. Kentucky, the United States Supreme Court held that excluding a potential juror based solely on race violates the Equal Protection Clause of the Fourteenth Amendment. 476 U.S. 79, 89 (1986); State v. Butler, 230 Ariz. 465, ¶ 36, 286 P.3d 1074, 1083 (App. 2012). A trial court's analysis of a Batson challenge consists of three steps: (1) the challenging party "must make a prima facie showing of discrimination based on race . . . or another protected characteristic, " (2) "'the striking party must provide a race-neutral reason for the strike, '" and (3) the court must evaluate the credibility of the proponent's explanation to determine whether the opponent has met his burden to prove discrimination. Butler, 230 Ariz. 465, ¶ 40, 286 P.3d at 1084, quoting Gallardo, 225 Ariz. 560, ¶ 11, 242 P.3d at 164. To satisfy the second step, the state's explanation "need not be persuasive or plausible so long as it is facially neutral." Id. In the third step, the court evaluates the persuasiveness of the state's justification, which is a fact-intensive determination that turns on issues of credibility. State v. Newell, 212 Ariz. 389, ¶ 54, 132 P.3d 833, 845 (2006). Therefore, the court's finding "is due much deference." Id.
¶5 In Eck's objection to the trial court, he stated that W.M. was "the only African American on the jury panel" and that the case had "some issues with respect to . . . race" because Eck's girlfriend, B.H., was African American. After the court asked the state to explain its strike,  the prosecutor responded that she had struck W.M. because he had "voted not guilty on a [previous] assault case." She noted she had struck other prospective jurors who had found criminal defendants not guilty in previous cases and explained she "is always very wary of people who have found people not guilty [in] the past" because "in [her] experience they're willing to . . . hold the State to a higher burden than is required." Eck noted that the state had failed to strike juror B.S., who also had found a criminal defendant not guilty while serving on a previous jury. The court denied Eck's challenge.
¶6 On appeal, Eck argues the trial court should have concluded the state's justification for striking W.M. was pretextual because "[t]here were no other African Americans on the panel, " and it had not struck B.S. even though he had "voted not guilty on a previous jury trial." "[A] defendant may rely on 'all relevant circumstances' to raise an inference of purposeful discrimination" and side-by-side comparisons of jurors who were struck and those allowed to serve may provide some evidence of intentional discrimination. Miller-El v. Dretke, 545 U.S. 231, 240, 241 (2005), quoting Batson, 476 U.S. at 96.
¶7 Here, the record supports the trial court's conclusion that the state's race- neutral reason for striking W.M. was credible. The state struck two other jurors who, like W.M., had served on one prior jury and found a defendant not guilty. As Eck concedes, B.S.'s previous jury experience was distinguishable from that of W.M. because B.S. had served on two juries, voting not guilty in one and guilty in the other. Moreover, the state argues, and Eck does not dispute, that four minority jurors remained on the panel after the state's strikes, three of whom served on the jury. See Gallardo, 225 Ariz. 560, ¶ 13, 242 P.3d at 164 (accepting ...