Court of Appeals of Arizona, Second Division, Department B
July 11, 2013
THE STATE OF ARIZONA, Appellee,
EVERESTO HARRISON JR., Appellant.
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20111597001 Honorable Howard Fell, Judge Pro Tempore
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz and Diane Leigh Hunt Attorneys for Appellee.
Ronald Zack, PLC Ronald Zack Tucson Attorney for Appellant.
¶1 Appellant Everesto Harrison Jr. appeals from his convictions for theft of a means of transportation, burglary, and possession of burglary tools. He maintains "the trial court abused its discretion when it denied [his] motion to strike a juror." We disagree and therefore affirm Harrison's convictions and sentences. Finding fundamental error in relation to the court's entry of a criminal restitution order, however, we vacate that order.
¶2 In May 2011, the owner of a pickup truck noticed his vehicle was missing and reported it stolen. A Tucson police officer found the vehicle nearby with Harrison and another man inside. The truck's ignition was broken, and the officer found gloves, a crowbar, a straight-blade knife, and a backpack containing "jiggle key[s]" and a filed- down screwdriver. Officers searched Harrison and found a garage door opener, a flashlight, and a "window punch."
¶3 The state charged Harrison with theft of a means of transportation, burglary, and possession of burglary tools, and a jury found him guilty on all counts. The trial court sentenced him to enhanced, mitigated, and concurrent terms of imprisonment, the longest of which was twelve years. This appeal followed.
¶4 In the sole issue raised, Harrison maintains the trial court should have granted his motion to strike for cause a juror whose apartment had been burglarized four days before the start of trial. "We review a trial court's decision whether to strike jurors for cause for abuse of discretion." State v. Glassel, 211 Ariz. 33, ¶ 46, 116 P.3d 1193, 1207, opinion corrected on denial of reconsideration, 211 Ariz. 370, 121 P.3d 1240 (2005).
¶5 During voir dire, the trial court asked if any of the prospective jurors had "been the victim of a crime, had your car stolen, your house broken into, assaulted, anything like that?" Several jurors answered positively, with one indicating her apartment had been broken into "last Friday, " apparently four days before the trial began. The court then asked broadly if any of the prospective jurors who had been victimized felt that anything about their experience "would interfere with [their] ability to sit and listen to this case." No one responded. The court further explained that the prospective jurors would "have to keep an open mind and be objective and not let [their] own experience influence [them] in any way." The record does not show any response from the prospective jurors to the court's explanation.
¶6 Later, defense counsel individually questioned some of the prospective jurors, particularly asking the juror whose apartment had been burglarized how she was feeling about it. The juror stated, "It's still fresh. It's got me a little shaken up." Counsel asked if that would have any impact on her ability "to listen to the evidence and apply it, " and the juror responded, "I really don't have any tolerance for thieves right now." The court then explained that "Harrison has just been accused of something. He said, I didn't do it. And so the State has to prove that to you. So what [counsel] is asking is, can you, despite your own experience just last week, sit here and listen and not be influenced by what happened to you[?]" The juror responded, "I can do that." At the close of voir dire, Harrison indicated concern about the juror sitting on the panel, which the court treated as a motion to strike and denied. Harrison used a peremptory strike to remove the juror from the panel, and she did not sit as a juror.
¶7 We cannot say the trial court abused its discretion in denying Harrison's motion to strike the juror. A juror who initially shows some bias or partiality may serve on a jury if he or she is properly rehabilitated. A trial judge "may use the voir dire to convince a juror" of his or her responsibility "to put his [or her] opinions aside and weigh the evidence as the law requires, " "thereby rehabilitating an initially suspect venire [person]." State v. Clabourne, 142 Ariz. 335, 344, 690 P.2d 54, 63 (1984); see also State v. Martinez, 196 Ariz. 451, ¶ 28, 999 P.2d 795, 803 (2000). That is exactly what happened here. The court and counsel questioned the prospective juror more closely about her views and her ability to set aside her personal experience, and the juror agreed she could follow the law. Unlike the juror in State v. Rodriguez, on which Harrison relies, the juror here ultimately did not continue to "demonstrate that she had serious misgivings about her ability to be impartial because of her recent experiences." 131 Ariz. 400, 402, 641 P.2d 888, 890 (App. 1981).
¶8 Moreover, even had the juror not been properly rehabilitated, reversal is not required. Our supreme court has adopted the rule "requir[ing] a showing of prejudice before a case will be reversed when a defendant uses a peremptory challenge to remove a juror the trial court should have excused for cause." State v. Hickman, 205 Ariz. 192, ¶¶ 20-21, 68 P.3d 418, 422 (2003). And, "a defendant is required to use an available peremptory strike to remove an objectionable juror whom the trial court has refused to remove for cause" if he wishes to maintain any error was prejudicial, and thereby preserve his claim for appeal. State v. Rubio, 219 Ariz. 177, ¶ 12, 195 P.3d 214, 218 (App. 2008). Harrison therefore must demonstrate that, notwithstanding his use of a peremptory strike, he was deprived of a "fair and impartial" jury. Hickman, 205 Ariz. 192, ¶ 41, 68 P.3d at 427. Harrison has articulated no objection to any of the other jurors who deliberated in his case. Because he therefore has not demonstrated any cognizable prejudice arising from the trial court's ruling, he is not entitled to relief.
¶9 Finally, although Harrison does not raise the issue, the record shows the court reduced "all fines, fees, assessments and/or restitution" to a criminal restitution order (CRO), ordering that "no interest, penalties or collection fees [were] to accrue while [Harrison] is in the Department of Corrections." "[T]he imposition of a CRO before the defendant's probation or sentence has expired 'constitutes an illegal sentence, which is necessarily fundamental, reversible error.'" State v. Lopez, Ariz., ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009). This error is not made harmless by a court's delaying the accrual of interest, penalties, or fees. Id. ¶ 5. And we will not ignore fundamental error if we find it. State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007). Thus, the CRO is vacated. Harrison's convictions and sentences are otherwise affirmed.
CONCURRING: GARYE L. VÁSQUEZ, Presiding Judge, VIRGINIA C. KELLY, Judge.