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State v. Urrea

Supreme Court of Arizona

July 11, 2018

State of Arizona, Appellee,
v.
Francisco Miguel Urrea, Appellant.

          Appeal from the Superior Court in Pinal County The Honorable Dwight P. Callahan, Judge Pro Tempore No. CR201402545

         Opinion of the Court of Appeals, Division Two 242 Ariz. 518 (App. 2017)

          Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Joseph T. Maziarz, Chief Counsel, Phoenix, Amy Pignatella Cain (argued), Assistant Attorney General, Criminal Appeals Section, Tucson, Attorneys for State of Arizona

          Rafael F. Gallego (argued), Gallego Law Firm, P.C., Tucson, Attorney for Francisco Miguel Urrea

          Amy Kalman, Brian Thredgold, Arizona Attorneys for Criminal Justice, Phoenix; Jared G. Keenan (argued), Kathleen E. Brody, American Civil Liberties Union Foundation of Arizona, Phoenix, Attorneys for Amici Curiae

          JUSTICE BOLICK authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES PELANDER, TIMMER, GOULD, and LOPEZ joined.

          OPINION

          BOLICK JUSTICE.

         ¶1 During a trial on narcotics charges, the prosecutor violated Defendant's equal protection rights by using peremptory strikes to remove Hispanic jurors from the venire in violation of Batson v. Kentucky, 476 U.S. 79 (1986). We hold that the trial court's remedy reinstating the wrongfully excluded jurors to the venire was proper.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 Defendant Francisco Miguel Urrea was charged with and found guilty of transportation of a narcotic drug for sale. During jury selection, Urrea raised a Batson challenge, contending that five of the prosecutor's six peremptory strikes targeted potential jurors with "Hispanic ethnic background[s]."

         ¶3 The trial court conducted a Batson analysis and concluded that the prosecutor could not establish a race-neutral justification for striking three of the challenged jurors. Although it found a Batson violation, the court found no misconduct on the prosecutor's part. The court ruled that the prosecutor forfeited those three strikes and restored the three jurors to the venire. Urrea moved for a mistrial and dismissal of the entire venire. The court denied the motion and empaneled the first nine jurors who had not been struck, including two of the reinstated jurors.

         ¶4 A divided panel of the court of appeals affirmed. State v. Urrea, 242 Ariz. 518 (App. 2017). The court held that reinstatement of the wrongfully excluded jurors to the venire was permissible under Batson and proper under the circumstances. Id. at 525-26 ¶¶ 21-25. The dissenting judge stated that restoring improperly challenged jurors to the venire was permissible but an "incomplete" remedy, id. at 529 ¶ 39 (Miller, J., dissenting), and expressed that the court should have restored defense counsel's peremptory challenges or started the jury selection process anew, id. at 530 ¶ 42.

         ¶5 We granted review because the appropriate remedies for a Batson violation present an issue of statewide concern and first impression in Arizona. We have jurisdiction under article 6, section ...


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