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Not for Publication Rule 111, Rules of the Supreme Court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. CR20112923001 Honorable Deborah Bernini, Judge
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Amy Pignatella Cain Tucson Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender By Michael J. Miller Tucson Attorneys for Appellant
PETER J. ECKERSTROM, Judge
¶1 Following a jury trial in 2012, appellant Nicarwia Hudson was convicted of aggravated assault on a police officer. The trial court suspended the imposition of sentence and placed Hudson on probation for eighteen months. On appeal, Hudson argues she was denied her constitutional right to be present during the jury selection process. She asks that we reverse her conviction and remand for a new trial. For the reasons set forth below, we affirm.
¶2 We view the facts in the light most favorable to upholding the conviction. See State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App. 2007). Hudson's conviction arose from an incident involving an altercation with police officers during a traffic stop in August 2011. On several occasions before trial, the trial court had informed Hudson of the consequences "should she fail to appear" at any hearing or at trial, and she confirmed by signature that she understood that if she failed "to appear at court[, ] the court case and any trial c[ould] continue in [her] absence." The trial originally was scheduled to begin in Judge Christopher Browning's courtroom at 1:30 p.m. on March 13, 2012. Due to a reassignment of judges in the week before trial, it was rescheduled to begin on the same date, but at 10:30 a.m. in Judge Deborah Bernini's courtroom.
¶3 When Hudson failed to appear at the newly scheduled time and location, her attorney explained that he had not informed her personally of the new courtroom and starting time, but he had informed "her mother who answered the phone at the house [where] she is staying, " that "this is the time change, she needs to show up in Judge Bernini's courtroom on that date. So hopefully she got the message." The trial court stated, "I'd like to proceed with the jury selection without her. I can tell the jurors that the trial was accelerated and we're expecting her after the lunch hour or something along those lines. Any objection?" Defense counsel responded, "That would be fine, Judge."
¶4 The jury then was brought into the courtroom. The trial court read the names of the potential jurors, explained the jury selection process, introduced the attorneys and defense counsel's legal assistant, and asked if any of the jurors recognized them or the names of any of the potential witnesses, including Hudson. The court then told the jury:
Let me explain something, Ms. Hudson has not yet joined us in the courtroom. Ladies and gentlemen, this case was reassigned to me from another judge yesterday, and I'm a morning start and a lot of our criminal judges don't start until the afternoon. We're going to start jury selection now and then we'll proceed with the trial. So she had been notified the trial was at 1:30 and we're hoping she'll be here this afternoon.
If not, I'll explain to you how that will work, but we're going to start in her absence. I wait for no man. We start this trial on time and we move forward at quite a fast and rapid pace.
One potential juror, who worked for the Tucson Fire Department, told the court that although he did not recognize the names of the officers or victims, he might "[p]otentially" know them once he saw them. The judge admonished the jurors to notify the court at any point during the trial if they recognized a witness as someone they knew. Hudson then arrived, and the court told the jury: "Ms. Hudson got the message that we moved the trial up on her by about three hours. Ms. Hudson, would you be nice enough to stand, everybody had to do that when they were introduced, to see if anyone recognizes you? This is Ms. Hudson." The voir dire process then continued.
¶5 On appeal, Hudson argues her absence during the beginning portion of the jury selection process deprived her of meaningful "interaction" with the jurors and may have suggested to the jury she is irresponsible. Asserting her attorney should not have been allowed to waive her presence, Hudson maintains the trial court should have permitted counsel "to attempt to contact her" before proceeding in her absence. She further suggests she may have been late because "she had trouble finding the new courtroom" or because of "[t]raffic and parking" or "construction" issues. Hudson also asserts the court abused its discretion "by denying [a] short continuance, " thereby depriving her of her constitutional right to be present at trial. But, because counsel did not request a "short continuance, " none was denied.
¶6 Moreover, once Hudson did arrive, counsel did not offer any further explanation for her tardiness or object to the trial court having proceeded in her absence. Although our supreme court has held that exclusion from the entire jury selection process is structural error, exclusion from a minor portion can be harmless. State v. Garcia-Contreras, 191 Ariz. 144, ¶¶ 17, 22, 953 P.2d 536, 540-41 (1998). Because Hudson was not excluded from the entire jury selection process and because she did not object below, we review only for fundamental error.See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005) ("Fundamental error review . . . applies when a defendant fails to object to alleged trial error."). Fundamental error is "'error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.'" Id., quoting State v. ...