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State v. Bush

Supreme Court of Arizona

August 16, 2018

State of Arizona, Appellee,
v.
Jason Eugene Bush, Appellant.

          Appeal from the Superior Court in Pima County The Honorable John S. Leonardo, Judge No. CR-2009-2300-003

          Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Lacey Stover Gard (argued), Chief Counsel, Capital Litigation Section, Tucson, Attorneys for State of Arizona

          John L. Saccoman (argued), Law Office of John L. Saccoman, Phoenix; and Brent E. Graham, Law Office of Brent E. Graham, PLLC, Glendale, Attorneys for Jason Eugene Bush

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

          OPINION

          PELANDER, JUSTICE

         ¶1 This automatic appeal arises from Jason Eugene Bush's convictions and death sentences for murdering nine-year-old Brisenia Flores and her father, Raul "Junior" Flores, in their Arivaca home. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031 and 13-4033(A)(1).

         BACKGROUND

         ¶2 The facts largely mirror those in State v. Forde, in which this Court affirmed the first degree murder convictions and death sentences of Shawna Forde, Bush's accomplice and the "self-proclaimed leader of a private 'minuteman' border monitoring group" in which Bush participated. 233 Ariz. 543, 552 ¶ 2 (2014). On the evening of May 29, 2009, Junior Flores, his wife, Gina Gonzales, and their daughter, Brisenia, were at their home while the couple's other daughter spent the night with a relative. After Junior and Gina went to bed, and as Brisenia slept on the living room couch, Junior woke Gina to tell her law enforcement officers were at their door. Gina rose from bed and joined Brisenia, who was still asleep on the couch, while Junior went to the door.

         ¶3 Gina heard two voices, a male and female, order Junior to open the door so they could enter to "take a look." Junior complied, and a man and woman entered the Flores's home. The man was tall, wore camouflage and black face paint, and carried a handgun and a longer gun covered with duct tape. Junior pressed the intruders for identification and asked the man why one gun was covered in duct tape. The man responded, "Don't take this personally but this bullet has your name on it," and shot Junior in the chest. The man then turned the handgun on Gina and shot her in the shoulder and thigh. After Gina fell to the floor, the man focused again on Junior, who was yelling, "Stop shooting my wife," and killed him with additional shots.

         ¶4 Lying on the floor feigning death, Gina heard two more men, both Spanish-speaking, enter the home. Brisenia awoke, began crying, and asked the armed man why he shot her father. He told Brisenia everything would be okay, that nobody would hurt her, and asked about her sister's whereabouts. Brisenia said her sister was spending the night with a relative. Gina then heard the man load his gun while Brisenia repeatedly begged, "Please don't shoot me." Despite her pleas, the man fatally shot Brisenia twice in the face at point-blank range.

         ¶5 After hearing the female intruder tell the group to leave, Gina called 911 and attempted to aid Brisenia, who was shaking and struggling to breathe. The female intruder then returned, saw that Gina was still alive, and ordered someone to "go back and finish her off." Gina immediately rushed to the kitchen, grabbed a gun Junior kept there, and collapsed on the kitchen floor. Meanwhile, the tall man with black face paint reentered the home and began shooting at Gina, who returned fire. Gina heard the man cry out in pain before leaving the home. When another man entered, Gina yelled, "Get the hell out," and "That is enough," which prompted the man to leave. Gina returned to the phone, which was still connected to the 911 dispatcher, and waited for police.

         ¶6 Law enforcement officers identified Albert Gaxiola as a suspect in the murders and, after obtaining a search warrant, discovered Bush's DNA, fingerprints, and other incriminating items at Gaxiola's home. Officers located Bush ten days later at the residence he shared with his girlfriend. Bush, who had been wounded by Gina's gunfire, told his girlfriend that he had been shot in the leg while working for the military as an undercover immigration operative.

         ¶7 After arresting Bush on June 11, 2009, officers questioned him at the Mohave County Sheriff's Department for approximately four hours. Though initially denying any involvement in the murders, Bush eventually confessed to shooting and killing Junior and Brisenia, claiming that his accomplices threatened to kill him and his family if he did not do so. In addition to making numerous incriminating statements, Bush drew a diagram of the Flores's home and marked where each victim was when he shot them. The State charged Bush with two counts of first degree murder, A.R.S. § 13-1105, attempted first degree murder, A.R.S. § 13-1001, two counts of aggravated assault, A.R.S. § 13-1204, first degree burglary, A.R.S. § 13-1508, armed robbery, A.R.S. § 13-1904, and aggravated robbery, A.R.S. § 13-1903.

         ¶8 A jury found Bush guilty on all counts. For the murder convictions, the jury found three aggravating circumstances: Bush was convicted of a serious offense, committed multiple homicides on the same occasion, and murdered a person under the age of fifteen. See A.R.S. § 13-751(F)(2), (8), (9). Considering those factors and the mitigation evidence, the jury sentenced Bush to death for each murder. For the non-capital convictions, the trial court sentenced Bush to prison terms totaling seventy-eight years.

         DISCUSSION

         A. Pretrial Motions for a Change of Venue and Continuance

         ¶9 Bush contends the trial court abused its discretion in denying his motion for a change of venue or, alternatively, a continuance, which he argues was necessary because of outrageous and extensive pretrial publicity about the case. We review for abuse of discretion a trial court's denial of a motion for a change of venue or continuance. Forde, 233 Ariz. at 553 ¶ 11; State v. Dixon, 226 Ariz. 545, 555 ¶ 53 (2011).

         ¶10 Bush's motion, filed a week before his trial, cited numerous internet articles allegedly containing "an overwhelming amount of prejudicial and inflammatory statements" about him. In denying the motion, the trial court reasoned that Bush had not shown he was entitled to a presumption of prejudice and could not show actual prejudice because the jury had not yet been selected. The court indicated it would explore Bush's concerns if the voir dire process failed to "yield an impartial jury." Bush unsuccessfully moved for a mistrial after jury selection but did not renew his motions for a change of venue or continuance.

         ¶11 Our review of pretrial publicity issues "entails a two-step inquiry to decide 'whether, under the totality of the circumstances, the publicity attendant to [the] defendant's trial was so pervasive that it caused the proceedings to be fundamentally unfair.'" Forde, 233 Ariz. at 553 ¶ 12 (quoting State v. Cruz, 218 Ariz. 149, 156 ¶ 13 (2008)). The first inquiry is whether "the publicity so pervaded the proceedings that the trial court erred by not presuming prejudice." Id. at 554 ¶ 12; accord Cruz, 218 Ariz. at 156 ¶ 14. If the trial court properly declined to presume prejudice, the next inquiry is "whether the defendant showed actual prejudice." Forde, 233 Ariz. at 554 ¶ 12; accord Cruz, 218 Ariz. at 156 ¶ 14. We find no error under either inquiry.

         ¶12 Courts "rarely presume prejudice due to outrageous pretrial publicity," State v. Bible, 175 Ariz. 549, 564 (1993), because of the defendant's extremely heavy burden to show "the publicity [is] 'so unfair, so prejudicial, and so pervasive that [the trial court] cannot give any credibility to the jurors' answers during voir dire, '" Cruz, 218 Ariz. at 157 ¶ 15 (quoting State v. Bolton, 182 Ariz. 290, 300 (1995)); accord Bible, 175 Ariz. at 564-65. "In other words, . . . the 'media coverage [must be] so extensive or outrageous that it permeate[s] the proceedings or create[s] a 'carnival-like' atmosphere, '" Cruz, 218 Ariz. at 157 ¶ 15 (quoting State v. Atwood, 171 Ariz. 576, 631 (1992)), devoid of the "fundamental and essential element[s] of . . . 'dignity, order, and decorum, '" Bible, 175 Ariz. at 567 (quoting Illinois v. Allen, 397 U.S. 337, 343 (1970)).

         ¶13 Bush argues that pretrial publicity created the prohibited carnival-like atmosphere in his proceedings. But in Forde, which involved the same murders underlying this case, we noted that "[m]ost of the publicity occurred in the immediate aftermath of the crimes - approximately eighteen months before [Forde's] trial," and "most news accounts were essentially factual." 233 Ariz. at 554 ¶ 14; see also State v. Kiles, 222 Ariz. 25, 35-36 ¶¶ 46-50 (2009) (change of venue denied despite ten years of media coverage).

         ¶14 Questionable or allegedly inaccurate publicity alone is not enough to presume prejudice, particularly when, as here, the "information in the great bulk of the news reports" was "largely factual." Bible, 175 Ariz. at 564. Nor does a presumption of prejudice arise merely because the media published an interview to which Bush agreed, or other articles stating that he confessed to the murders or discussing facts adduced during Forde's trial that implicated Bush in the murders. In short, Bush has not shown that "the media successfully influenc[ed] law enforcement officers [, ] . . . court personnel[, ] [or] the court itself." Id. at 565.

         ¶15 "Absent presumed prejudice, the focus is whether the potential jurors 'could not judge impartially the guilt of the defendant.'" Id. at 566 (quoting Patton v. Yount, 467 U.S. 1025, 1035 (1984)). To prevail, the defendant must show that "the dissemination of the prejudicial material will probably result in the party being deprived of a fair trial." Ariz. R. Crim. P. 10.3(b) (2011); see also Bible, 175 Ariz. at 566-67 (applying Rule 10.3(b)). Bush fails to make that required showing.

         ¶16 Bush's actual prejudice argument primarily rests on the allegedly "inconsistent answers" Jurors 1, 5, 11, and 13 gave about their exposure to pretrial publicity. But all empaneled jurors disclosed their preliminary opinions regarding Bush's guilt and provided adequate assurances they would set their opinions aside and consider only the evidence presented at trial. These assurances plainly "undercut [his] prejudice claim." Bible, 175 Ariz. at 566. Additionally, nothing in the record supports departing from the well-established presumption that the jurors followed the trial court's instructions to consider only the evidence presented at trial. Cruz, 218 Ariz. at 158 ¶ 25. The court did not abuse its discretion in denying Bush's motion for a change of venue.

         ¶17 Because Bush failed to show that the pretrial publicity prejudiced him, we likewise reject his claim of error relating to his motion for a continuance. State v. Burns, 237 Ariz. 1, 11 ¶ 10 (2015) ("We will not find that a trial court abused its discretion in denying a continuance unless the defendant shows prejudice.").

         B. Jury Selection and Voir Dire Issues

         1. Non-statutory Aggravators in Juror Questionnaire

         ¶18 Jury selection in this case lasted five days and involved 225 potential jurors. Before trial, each juror received and completed an eighteen-page juror questionnaire containing many questions probing the juror's ability to deliver a fair and impartial verdict. In various ways, the questionnaire delved into the prospective jurors' views on capital punishment, and some questions sought to identify jurors who might harbor death-favorable views. The State and Bush's defense team received copies of the prospective jurors' completed questionnaires. In addition, the trial court conducted three voir dire sessions in which subgroups of prospective jurors were sworn in, instructed on the phases of a capital murder trial, and made available to the parties for questioning.

         ¶19 Bush contends the trial court erred by allowing the State, through the juror questionnaire, to "improperly inject non-statutory aggravating factors . . . for consideration by prospective jurors." Bush's argument is based on question 27, which stated:

27. If you agree the death penalty may be appropriate in some cases, please rank the following reasons from 1 to 4, 1 being most important, that would cause you to favor the death penalty.
___To deter others from committing murder.
___For economic reasons. It is expensive to house prisoners for the remainder of their lives.
___Because an eye for an eye, is fair.
___To protect the public against defendants who might get out of jail in the future.
___Other (please specify): ___.

         ¶20 "We review a trial court's decisions regarding the use and content of jury questionnaires for abuse of discretion," State v. Naranjo, 234 Ariz. 233, 241 ¶ 24 (2014), and "will not disturb the trial court's selection of the jury in the absence of a showing that a jury of fair and impartial jurors was not chosen," State v. Moody, 208 Ariz. 424, 451 ¶ 93 (2004) (internal quotation marks omitted) (quoting State v. Walden, 183 Ariz. 595, 607 (1995)).

         ¶21 Despite having been furnished in advance with the trial court's proposed questionnaire, Bush did not object to question 27 or any other part. Instead, after the prospective jurors received, completed, and submitted their questionnaires, but before voir dire began, Bush moved for a mistrial on the ground that question 27 "engrained in [the jurors] that it is appropriate at some level for them to consider" the "improper and impermissible" non-statutory aggravating factors it lists. The trial court denied the motion but instructed the potential jurors that they were not to consider the factors listed in question 27. The court also asked the potential jurors whether they would disregard that instruction, but no juror indicated any such intent.

         ¶22 The trial court's instruction and follow-up query notwithstanding, defense counsel still "ask[ed] each [potential juror] individually" about whether they could "put those [reasons listed in question 27] aside" as non-factors and be fair and impartial. But in his further probing of the prospective jurors, counsel confusingly stated he was not "saying [they] can't think about these [factors]." The trial court later clarified that defense counsel's follow-up questioning was meant to determine whether the factors listed in question 27 are "still going to be something that you consider even if the Court instructs you [otherwise]."

         ¶23 In response to Bush's questioning, and contrary to their prior statements that they would follow the trial court's instructions on this point, petit Jurors 9, 11, and 13 indicated by raising their hands that they would consider a factor listed in question 27. Even so, and despite insisting he would move to strike any jurors who indicated they would consider question 27's factors, Bush did not move to strike any of these jurors.

         ¶24 Arizona law provides fourteen "aggravating circumstances" that, if alleged by the state, a capital case jury shall consider "in determining whether to impose a sentence of death." A.R.S. § 13-751(F). Bush contends that "question 27 called jurors' attention to non-statutory aggravating factors" and that he is entitled to a new trial because the final response of Jurors 9, 11, and 13 during voir dire indicates that "at least [their] verdicts were influenced by improper considerations."

         ¶25 We disagree. On its face, question 27 does not instruct jurors that the reasons it lists are aggravating factors, but rather expressly states that its purpose is to determine what reasons would lead a particular juror to "favor the death penalty" if given that sentencing option. Moreover, the trial court and the parties explained several times that each juror must follow the court's instructions generally and that jurors were not to consider the factors question 27 mentions. We presume the jurors heeded those instructions, Cruz, 218 Ariz. at 158 ¶ 25, and Bush's assertion that the reasons listed in question 27 influenced any juror's deliberation or decision is purely speculative.

         ¶26 Bush nevertheless contends that the post-instruction, show-of-hand responses made by Jurors 9, 11, and 13 indicate inadequate rehabilitation. But those conflicting responses at most suggest the jurors did not understand the purpose or substance of defense counsel's questioning. And to the extent there was confusion, it was at least partially attributable to counsel's misguided statement to the prospective jurors that "we're not saying you can't think about these [factors]."

         ¶27 In any case, later in the jury selection process the trial court asked if any prospective jurors "would be unable to follow the law" as given in the court's instructions, "disregarding [their] own notions of what the law is" or "ought to be." No juror responded or expressed any concern. In addition, during voir dire and later in the aggravation phase the prosecutor and the trial court clearly explained the separate phases of a capital case trial, the distinct issues the jurors would have to decide in each phase, and the three aggravators the State alleged. The court's aggravation-phase instructions expressly stated that "the State has the burden of proving beyond a reasonable doubt the aggravating circumstances it has alleged," all of which are listed in § 13-751(F). Bush fails to rebut the presumption that the jurors followed the court's instructions. See State v. Prince, 226 Ariz. 516, 537 ¶ 80 (2011).

         ¶28 In sum, the trial court did not abuse its discretion in allowing the prospective jurors to answer question 27 of the juror questionnaire. Nonetheless, we see little purpose for, and a potential risk of confusion and possible prejudice created by, a question such as question 27. We therefore disapprove of its future use in capital case pretrial juror questionnaires.

         2. Denial of Individual Voir Dire

         ¶29 Bush contends the trial court violated his constitutional rights to a fair trial and due process by denying his request for individual voir dire. "We review a trial court's rulings on voir dire of prospective jurors for abuse of discretion," State v. Glassel, 211 Ariz. 33, 45 ¶ 36 (2005), and necessarily defer largely to a trial court's "sound discretion" in such matters, Ristaino v. Ross, 424 U.S. 589, 594 (1976) (internal quotation marks omitted) (quoting Connors v. United States, 158 U.S. 408, 413 (1895)).

         ¶30 Bush moved before trial for individual, sequestered, and in-chambers voir dire, asserting it was necessary to "put the prospective juror at ease and encourage honest responses." The trial court denied the motion, noting that Bush's request was impracticable because of the large number of potential jurors. But the court said it would privately question a prospective juror "if that need became apparent" either from the juror's request or to avoid tainting the other prospective jurors. Based on the same reasoning, the trial court denied Bush's two subsequent filings seeking individual voir dire.

         ¶31 Notwithstanding the trial court's rulings, during the first day of voir dire defense counsel asked individualized questions to make sure the jurors were being "honest with [him]." The court took issue with the inefficient and ineffective manner of his questioning, but counsel insisted that he "ha[d] the right to ask [jurors] individually" because the juror questionnaire "implanted in their mind" that the factors listed in question 27 were appropriate. The trial court ultimately gave counsel considerable "leeway," such that his extensive and uninterrupted voir dire questions were a mixture of individual and group inquiries.

         ¶32 Relying in part on Morgan v. Illinois, 504 U.S. 719 (1992), Bush contends that individualized voir dire was constitutionally required in his "complex, highly publicized capital trial." But Morgan merely requires trial courts to allow "more detailed questioning of prospective jurors beyond . . . simple questions" to "evaluat[e] a prospective juror's ability to be impartial." State v. Garza, 216 Ariz. 56, 64 ¶ 25 (2007); see also State v. Parker, 231 Ariz. 391, 400 ¶ 21 (2013) ("We have repeatedly rejected invitations to expand Morgan's holding."). And unlike in Morgan, the trial court here did not "refuse inquiry into whether a potential juror would automatically impose the death penalty upon conviction of the defendant." 504 U.S. at 721. Nor does Bush identify any occasion on which he unsuccessfully asked for voir dire of a specific juror individually. Cf. State v. Moore, 222 Ariz. 1, 10 ¶ 36 (2009) (finding no Morgan error when defendant "was allowed to question the jurors" and "[t]he trial court did not prevent defense counsel from asking life-qualifying questions"). Instead, the record shows that Bush had ample time and opportunity to probe the prospective jurors on their juror questionnaire responses, pretrial publicity, and other matters. See Garza, 216 Ariz. at 64 ¶ 25 (concluding that voir dire consisting of "extensive oral questioning and . . . a twenty-four page questionnaire completed by all prospective jurors" "complied with Morgan").

         ¶33 To the extent Bush suggests individual voir dire was necessary to prevent prospective jurors' answers from tainting the panel, we disagree. As in Bible, "the written questionnaire addressed many of the questions that might normally militate in favor of individualized . . . or in camera voir dire," and Bush "cites no 'contaminating' comment made during oral voir dire." 175 Ariz. at 570; accord Forde, 233 Ariz. at 560 ¶¶ 55-56. Accordingly, the trial court did not abuse its discretion in denying individualized voir dire. See Bible, 175 Ariz. at 570 ("Whatever the risk of the procedure used, the danger did not materialize.").

         3. Exclusion of Evidence from Voir Dire

         ¶34 During the second day of voir dire, Bush moved to present to prospective jurors some graphic photographs of the murder victims and a tape recording of Gina's 911 call that the State intended to introduce as evidence at trial. Though acknowledging that this was a "novel idea that's generally not permitted during voir dire," Bush contended it was necessary to identify jurors who, after seeing the photographs and hearing the recording, would be "substantially impaired" from being fair and impartial during the mitigation phase. Bush argues that the trial court abused its discretion and violated his constitutional rights to a fair trial and due process by denying his request.

         ¶35 Although we generally review a trial court's voir dire rulings for abuse of discretion, State v. Patterson, 230 Ariz. 270, 273 ¶ 5 (2012), fundamental error review applies to Bush's constitutional claims because he did not raise them at trial, State v. Henderson, 210 Ariz. 561, 567 ¶ 19 (2005) (noting that "[a] defendant who fails to object at trial forfeits the right to obtain appellate relief except in those rare cases" involving fundamental error). Bush must therefore show error that is both fundamental and prejudicial. Id. ¶ 20.

         ¶36 Voir dire is "not meant to allow a defendant to 'ask a juror to speculate or precommit on how that juror might vote based on any particular facts.'" State v. Smith, 215 Ariz. 221, 231 ¶ 42 (2007) (quoting United States v. McVeigh, 153 F.3d 1166, 1207 (10th Cir. 1998)). Nor must a trial court allow a defendant to ask questions "designed to condition the jurors to damaging evidence expected to be presented at trial and to commit them to certain positions prior to receiving the evidence." State v. Melendez, 121 Ariz. 1, 3 (1978). Rather, "part of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Morgan, 504 U.S. at 729 (emphasis added); see also Burns, 237 Ariz. at 13 ¶ 21 (rejecting argument that Morgan entitles defendant "to ask whether [potential jurors] would impose the death penalty based on the specific facts of his case"). Here, Bush was allowed to question potential jurors on whether the anticipated evidence would prevent them from being fair and impartial.

         ¶37 In his voir dire questioning, Bush repeatedly referred to this case as involving "first degree, premeditated, cold-blooded, inexcusable murder" and vividly described the "gruesome photographs" and other "gut-wrenching" evidence that would be presented. Because Bush's statements sufficiently informed the potential jurors about the graphic nature of the evidence in the case, exposing them to the 911 tape and photographs would have unnecessarily risked conditioning the jurors to the State's damaging evidence. See Melendez, 121 Ariz. at 3. As such, the trial court did not err in precluding Bush from presenting that evidence during voir dire.

         4. Failure to Strike Jurors Sua Sponte

         ¶38 Bush argues that the trial court committed structural error and violated his rights "to due process and a fair trial by an impartial jury, and . . . to be free from cruel and unusual punishment" under the federal and Arizona constitutions by failing to strike sua sponte four allegedly "death-presumptive jurors" who served on the petit jury. Specifically, he contends the court erred by not striking Jurors 2, 3, 8, and 9 because they allegedly "made death-presumptive statements in their questionnaires for which they were never rehabilitated." We find no structural or other error.

         ¶39 During the jury selection process the trial court dismissed forty-five potential jurors for cause, including several whom Bush moved to strike because he believed they would automatically vote to impose a death sentence. Bush did not move to strike empaneled Jurors 2, 3, 8, or 9. But after voir dire he moved for a mistrial based "on the entire way [the jury selection] process has been conducted" and argued that some prospective, stealth jurors, without specifically identifying the four now in question, had "not been forthcoming with information" to shed light on some of their responses in the juror questionnaire. Bush made clear that his motion for mistrial was distinct from his request to strike certain specified prospective jurors he viewed as death-biased. The trial court denied Bush's motion, stating that jury selection "has been an effective process" that resulted in "a panel at this point that is fair and can be impartial and will follow the law."

         ¶40 We first reject Bush's assertion that the trial court's failure to sua sponte strike Jurors 2, 3, 8, and 9 resulted in structural error. State v. Anderson (Anderson I), 197 Ariz. 314 (2000), on which Bush relies, is inapposite. There, contrary to our rules and case law, the trial court refused the defendant's request for oral voir dire to rehabilitate prospective jurors who generally opposed the death penalty. Id. at 319 ¶ 10, 320-21 ¶¶ 13-14; cf. Moore, 222 Ariz. at 10-11 ¶¶ 41-42 (finding Anderson I "not analogous" to situation where trial court failed "to specifically ask jurors if they could set aside their beliefs"). Here, in contrast, the trial court did not deny Bush his right to voir dire, let alone his right to strike jurors based on their allegedly death-presumptive statements. Nor did any of the jurors in question express a belief that "death should be imposed ipso facto upon conviction of a capital offense," Morgan, 504 U.S. at 735, or otherwise state that he or she would "automatically vote for the death penalty without regard to the mitigating evidence," id. at 738.

         ¶41 Bush alternatively argues that "[f]undamental error analysis does not apply here as [he] specifically objected to the court's voir dire as inadequate and moved for a mistrial." We disagree. Bush does not argue that the trial court erred in denying his motion for a mistrial. And that motion was, at best, a "general objection to death qualification," which is insufficient to preserve issues relating to the qualification of particular jurors. E.g., Moody, 208 Ariz. at 449-50 ¶ 85. Furthermore, even assuming Bush's oral motion for a mistrial constituted a challenge to the panel, it failed to comply with Arizona Rule of Criminal Procedure 18.4(a), which at all relevant times required such challenges to be "in writing." We therefore review his claim for fundamental error, which requires Bush to show that the trial court's failure to sua sponte strike Jurors 2, 3, 8, and 9 constituted error that was fundamental and prejudicial. Henderson, 210 Ariz. at 567 ¶¶ 19-20; see also Garza, 216 Ariz. at 64 ¶¶ 28-29 (reviewing death-biased jury claims for fundamental error); Bible, 175 Ariz. at 573-74 (same).

         ¶42 "When there is reasonable ground to believe that a juror cannot render a fair and impartial verdict, the court, on its own initiative, . . . shall excuse the juror from service in the case." Ariz. R. Crim. P. 18.4(b) (2011); see also Morgan, 504 U.S. at 729 ("The Constitution . . . [requires] that the defendant be afforded an impartial jury."). But a potential juror is not precluded from jury service "[s]imply because [the] juror favors the death penalty" so long as the juror is "willing to put aside his opinions and base his decisions solely upon the evidence." State v. Velazquez,216 Ariz. 300, 307 ¶ 19 (2007) (internal quotation marks omitted) (quoting State v. Martinez,196 Ariz. 451, 459 ΒΆ 28 (2000)). Thus, ...


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