SUPREME COURT OF ARIZONA 

En Banc 

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-09-0189-PR 

 Appellee, ) 

 ) Court of Appeals 

 v. ) Division Two 

 ) No. 2 CA-CR 08-0051 

ANGEL ELEUTERIO DIAZ, ) 

 ) Pima County 

 Appellant. ) Superior Court 

 ) No. CR20002597 

 ) 

 ) 

 ) O P I N I O N

__________________________________) 

Appeal from the Superior Court in Pima County 

The Honorable Howard Hantman, Judge 

AFFIRMED 

________________________________________________________________ 

Opinion of the Court of Appeals, Division Two 

221 Ariz. 209, 211 P.3d 1193 (App. 2009) 

VACATED 

________________________________________________________________ 

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix 

 By Kent E. Cattani, Chief Counsel 

 Criminal Appeals/Capital Litigation Section 

 Diane L. Hunt, Assistant Attorney General Tucson 

Attorneys for State of Arizona 

ROBERT J. HIRSH, PIMA COUNTY PUBLIC DEFENDER Tucson 

 By David J. Euchner 

Attorney for Angel Eleuterio Diaz 

________________________________________________________________ 

P E L A N D E R, Justice 

¶1 After a jury trial, Angel Diaz was convicted of first 

degree burglary, attempted armed robbery, and aggravated 
2 

assault. On appeal, relying on the reporter’s transcript 

reflecting that only eleven jurors were polled following return 

of the verdicts, Diaz successfully argued that his right to a 

twelve-person jury had been violated. We disagree and conclude 

that Diaz failed to establish any legal error. Accordingly, we 

vacate both the opinion and supplemental opinion below and 

affirm his convictions. 

I

¶2 On the first day of Diaz’s trial, the trial court 

empanelled fifteen jurors. Two days later, after closing 

arguments, three jurors were selected as alternates and excused. 

The trial court instructed the remaining jurors that their 

verdicts “must be unanimous” and that “[a]ll 12 of you must 

agree on a verdict.” The jurors began deliberating that 

afternoon. 

¶3 The jurors resumed deliberations the next morning 

under the charge of the court’s bailiff, and that afternoon the 

foreperson informed the court that the jury had reached its 

verdicts. After the jurors were brought into the courtroom, the 

trial court stated, “[t]he record may show the presence of the 

jury.” The clerk then read the verdicts from the verdict forms, 

which the jury foreperson had signed on behalf of “the Jury, 

duly impaneled and sworn.” The jury found Diaz guilty of the 

aforementioned charges and not guilty of several others. 
3 

¶4 After reading the verdicts, the clerk asked: “Members 

of the Jury, are these the verdicts and the verdicts of each of 

you?” The jurors, in unison, answered “[y]es.” The court then 

asked the clerk to poll the jurors by number, and each 

responding juror confirmed the verdicts. 

¶5 The reporter’s transcript reflects that only eleven 

jurors were asked and responded to the polling question. 

Specifically, the transcript omits any mention of juror number 

six, one of the twelve jurors designated to serve and decide the 

case. Diaz’s counsel did not object to any aspect of the jurypolling process or question whether all twelve jurors were 

present or responded affirmatively when polled. Nor does the 

record reflect that the prosecutor, the bailiff, the clerk, the 

other jurors, or the judge noticed or mentioned a juror’s 

absence or failure to respond to the poll. 

¶6 Diaz appealed, claiming a violation of his right to a 

twelve-person jury. In a split opinion, the court of appeals 

agreed and reversed Diaz’s convictions, finding “fundamental, 

prejudicial error.” State v. Diaz, 221 Ariz. 209, 214 ¶ 15, 211 

P.3d 1193, 1198 (App. 2009). 

II 

¶7 It is uncontested that Diaz was entitled to a twelveperson jury because he faced a possible sentence of thirty years 

or more in prison. See Diaz, 221 Ariz. at 212 ¶¶ 7-8 & n.2, 211 
4 

P.3d at 1196 & n.2; see also Ariz. Const. art. 2, § 23; Ariz. 

Rev. Stat. (A.R.S.) § 21-102(A) (2001). “[T]he crux of Diaz’s 

argument,” the court of appeals stated, was that all twelve 

jurors had not “participated in deliberating and determining his 

guilt.” Diaz, 221 Ariz. at 212 ¶ 10, 211 P.3d at 1196. Based 

“[o]n the record before [it],” the court agreed, stating “the 

facts that the trial court noted the presence of ‘the jury’ on 

the day it resumed deliberations and reached its verdicts and 

that the polled jurors affirmed their verdicts were unanimous 

say nothing about the number of jurors present.” Id. at 212-13 

¶¶ 11, 13, 211 P.3d at 1196-97. Relying on State v. Henley, 141 

Ariz. 465, 687 P.2d 1220 (1984), and reviewing for fundamental 

error because Diaz had not raised the issue below, the court 

reversed the convictions based on “denial of Diaz’s right to a 

twelve-person jury.”1

 Id. at 211-12, 214 ¶¶ 6-7, 15, 211 P.3d at 

1195-96, 1198. 

¶8 Judge Howard dissented, stating “[t]he flaw in Diaz’s 

argument is that the transcript of the polling proves only a 

                                                           

1

 In State v. Soliz, 223 Ariz. 116, 117 ¶ 1, 219 P.3d 1045, 

1046 (2009), this Court departed from Henley and found no 

violation of Article 2, Section 23 of the Arizona Constitution 

“when a sentence of thirty years or more is authorized by law 

for the crimes charged, the case proceeds to verdict with a jury 

of less than twelve people without objection, and the resulting 

[and lawful] sentence is less than thirty years.” That 

principle does not apply here, however, because the parties 

agreed twelve jurors were required and the court empanelled a 

jury of that size. 
5 

defect in the polling, or possibly in the transcript, but it 

does not reflect a defect in the deliberations.” Id. at 215

¶ 19, 211 P.3d at 1199 (Howard, J., dissenting). According to 

the dissent, “[t]he reasonable inference is that twelve jurors 

decided Diaz’s guilt and juror number six was not polled.” Id. 

Judge Howard concluded Diaz had not established fundamental 

error and, therefore, his convictions and sentences should be 

affirmed. Id. at ¶ 21. 

¶9 About one week after the court of appeals issued its 

opinion, the court reporter filed a “corrected transcript,” 

showing that juror number six had answered “yes” when polled. 

In an accompanying affidavit, the reporter averred that she had 

mistakenly failed to transcribe the polling of juror number six 

from her notes. The State moved for reconsideration, urging the 

court to vacate its prior opinion and affirm Diaz’s convictions 

because twelve jurors had, in fact, decided his guilt. In a 

supplemental opinion, the court declined to reconsider its 

ruling and denied the State’s belated motion to supplement the 

record on appeal, concluding that “any attempt to amend the 

record at this juncture is untimely.” Diaz, 221 Ariz. at 218 

¶ 12, 211 P.3d at 1202 (supp. op.). 

¶10 We granted review to address a recurring issue of 

statewide importance that has produced conflicting results in 
6 

our appellate court.2 We have jurisdiction pursuant to Article 

6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-

120.24 (2003). 

III 

¶11 “Alleged trial court error in criminal cases may be 

subject to one of three standards of review: structural error, 

harmless error, or fundamental error.” State v. Valverde, 220 

Ariz. 582, 584 ¶ 9, 208 P.3d 233, 235 (2009). Regardless of how 

an alleged error ultimately is characterized, however, a 

defendant on appeal must first establish that some error 

occurred.3

 See State v. Henderson, 210 Ariz. 561, 568 ¶ 23, 115 

P.3d 601, 608 (2005) (“To obtain relief under the fundamental 

error standard of review, [a defendant] must first prove 

error.”).

¶12 This case is somewhat unusual in that it involves a 

dispute about what actually happened in the trial court rather 

                                                           

2

 See, e.g., State v. Smith, 1 CA-CR 08-0864, 2009 WL 4981844 

(Ariz. App. Dec. 22, 2009) (mem. decision); State v. Hutchison, 

2 CA-CR 2008-0213, 2009 WL 693336, at *3 ¶¶ 8-11 (Ariz. App. 

Mar. 17, 2009) (mem. decision); State v. (Raymond) Diaz, 1 CA-CR 

06-0768, 2008 WL 2791997, at *2 ¶¶ 8-11 (Ariz. App. Feb. 7, 

2008) (mem. decision). 

3

 We now know, of course, that twelve jurors in fact 

deliberated and determined Diaz’s guilt; thus, the error he 

complains of did not occur. We do not consider the corrected 

transcript that establishes those facts, however, because the 

court of appeals denied the State’s untimely attempt to 

supplement the record and we did not grant review of that issue. 
7 

than whether an undisputed trial record establishes legal error. 

Diaz essentially asks us to determine what occurred in the trial 

court by accepting his interpretation of the original jury-poll 

transcript and finding that what occurred was error of 

fundamental proportion. The factual predicate for Diaz’s legal 

argument, however, is lacking. Diaz has failed to meet his 

burden of showing that the alleged error occurred and, 

therefore, we need not determine the applicable standard of 

review. 

¶13 In evaluating Diaz’s claim of error, we review the 

entire record. See State v. Thomas, 130 Ariz. 432, 436, 636 

P.2d 1214, 1218 (1981) (“If . . . error occurred, the 

prejudicial nature of the unobjected-to error must be evaluated 

in light of the entire record.”); see also State v. Ramirez, 116 

Ariz. 259, 265-66, 569 P.2d 201, 207-08 (1977) (finding no error 

when the record as a whole supported the trial court’s finding 

that defendant’s waiver of Miranda rights was knowing and 

voluntary). We will not reverse a conviction based on 

speculation or unsupported inference. See State v. Carlson, 202 

Ariz. 570, 579-80 ¶¶ 31-33, 48 P.3d 1180, 1189-90 (2002) 

(rejecting argument that additional voir dire should have been 

permitted because the Court was “unwilling to speculate as a 

basis for reversal” of conviction); State v. Doerr, 193 Ariz. 

56, 61 ¶ 18, 969 P.2d 1168, 1173 (1998) (declining to “indulge 
8 

in . . . guesswork” based on defendant’s speculation that the 

remarks of two jurors tainted the entire panel). Rather, error 

must affirmatively appear in the record. Birch v. State, 19 

Ariz. 366, 370, 171 P. 135, 137 (1918) (“Cases may be reversed 

in this court only where the record affirmatively shows error 

prejudicial to some substantial right of a defendant . . . .”); 

see also Thomas, 130 Ariz. at 436, 636 P.2d at 1218 (“Before a 

finding of fundamental error can be made, it must be apparent 

that error was committed by the trial court in some aspect of 

the proceedings.”). 

¶14 Applying these principles, we find this record does 

not show that “only eleven jurors participated in the 

determination of [Diaz’s] guilt.” Diaz, 221 Ariz. at 210 ¶ 1, 

211 P.3d at 1194. The record contains several references to 

“the jury,” which consisted of twelve persons. It also reflects 

that the jurors were repeatedly instructed that their verdicts 

must be unanimous and reflect agreement by “[a]ll 12” jurors. 

The record does not suggest, nor does Diaz contend, that only 

eleven jurors were present when those instructions were given, 

and we presume the jury followed the instructions. See State v. 

Ramirez, 178 Ariz. 116, 127, 871 P.2d 237, 248 (1994). Further, 

nothing in the record indicates either that a juror was absent 

when the court noted “the presence of the jury” immediately 

before the verdicts were read or that fewer than twelve jurors 
9 

responded affirmatively when they answered in unison that these 

were their verdicts. 

¶15 The omission of any mention of juror number six from 

the reporter’s original transcript of the poll is certainly 

irregular and likely reflects some sort of mistake. Diaz argues 

it reflects the absence of a juror, while the State contends it 

merely suggests one of several other, more likely, scenarios: 

(1) a polling error (i.e., juror number six, though present, was 

skipped over without anyone noticing the mistake); (2) a 

recording error, caused by the reporter’s failure to hear the 

question to and response from juror number six; or (3) a 

transcription error, caused by the reporter’s failure to 

transcribe from her notes the polling of juror number six. 

¶16 As Judge Howard correctly noted, however, Diaz’s 

proffered theory is unfounded because “one juror’s omission from 

the poll does not prove that only eleven jurors deliberated.” 

Diaz, 221 Ariz. at 215 ¶ 19, 211 P.3d at 1199 (Howard, J., 

dissenting). Diaz’s theory of what actually occurred is 

particularly suspect when the record reflects no comment by the 

trial court, other jurors, the bailiff who was in charge of the 

jury, other court staff, or counsel, that a juror was missing. 

We simply cannot conclude, based solely on the omission of one 

juror from the reporter’s transcript of the poll, that only 

eleven jurors participated in determining Diaz’s guilt when all 
10 

other parts of the record indicate the presence of the entire 

jury throughout the trial, deliberations, and return of the 

verdicts. 

¶17 When the uncorrected record is considered as a whole, 

the prospects that a juror inexplicably and without notice 

failed to appear on the final day when deliberations resumed or 

simply vanished when the jury reentered the courtroom to return 

its verdicts are the least likely explanations for why the 

reporter’s transcript reflects the polling of only eleven 

jurors. See Cabberiza v. Moore, 217 F.3d 1329, 1336-37 (11th 

Cir. 2000) (rejecting, under similar facts, habeas corpus 

petitioner’s request to “conclusively . . . presume that a juror 

who was not polled did not join in the jury’s verdict,” instead 

finding the most “plausible conclusion” was that “the reporter 

simply failed to record the poll of the sixth juror”). And, 

because Diaz bears the burden of establishing error and has 

failed to do so, we need not choose among the other, more likely 

explanations. 

¶18 Finally, we note that this issue could have been 

resolved at a much earlier stage by applying Arizona Rule of 

Criminal Procedure 31.8(h).4

 Once the State learned of Diaz’s 

                                                           

4

 Rule 31.8(h) provides in part: “If any controversy arises 

as to whether the record discloses what actually occurred in the 

trial court, the difference shall be submitted to and settled by 

the trial court.” Pursuant to the rule, an appellate court, “on 
11 

contention on appeal and his reliance on the reporter’s 

transcript to support it, the State could and should have asked 

the appellate court to employ that rule to clarify what actually 

occurred during the polling process. That procedure would have 

better served the goals of timely administering justice and 

searching for the truth. We do not fault the court of appeals 

for rejecting the State’s untimely efforts to supplement the 

record after receiving that court’s opinion because the parties 

bear primary responsibility for assuring the accuracy of the 

record on appeal. But appellate courts may sua sponte stay an 

appeal and remand the case to the superior court for 

reconsideration or clarification of the record under Rule 

31.8(h). We encourage parties as well as trial and appellate 

courts to use this rule in appropriate circumstances to avoid 

delay and waste of time and resources. 

IV 

¶19 We hold that Diaz failed to establish any error, 

fundamental or otherwise, relating to the number of jurors who 

determined his guilt. Accordingly, we vacate the court of 

appeals’ opinions and affirm Diaz’s convictions and sentences. 

                                                                                                                                                                                               

motion or on its own initiative, may direct that [any] omission 

or misstatement [in the record] be corrected, and if necessary 

that a supplemental record be certified and transmitted.” The 

rule “is intended to prevent major delays and confusion when 

mistakes or omissions occur.” Ariz. R. Crim. P. 31.8(h) cmt. 
12 

 _____________________________________ 

 A. John Pelander, Justice 

CONCURRING: 

_____________________________________ 

Rebecca White Berch, Chief Justice 

_____________________________________ 

Andrew D. Hurwitz, Vice Chief Justice 

_____________________________________ 

Michael D. Ryan, Justice 

_____________________________________ 

W. Scott Bales, Justice