NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee, 

v.

JESSE RICHARD CISNEROS, Appellant. 

No. 1 CA-CR 17-0182 

Appeal from the Superior Court in Maricopa County

No. CR 2015-138997-001 

The Honorable Christine E. Mulleneaux, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Michelle L. Hogan

Counsel for Appellee 

Maricopa County Public Defender’s Office, Phoenix

By Paul J. Prato 

Counsel for Appellant

FILED 6-18-2019
STATE v. CISNEROS

Decision of the Court

2 

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which Judge 

Kent E. Cattani joined. Presiding Judge Jennifer B. Campbell specially 

concurred.

M c M U R D I E, Judge:

¶1 Jesse Richard Cisneros appeals his convictions of aggravated 

assault and possession or use of marijuana and the resulting sentences.

Cisneros argues that the superior court committed structural error by 

denying his motion to strike prospective juror number 48 (“Juror 48”) for 

cause, causing the jury to be tainted by a biased juror. For the following 

reasons, we affirm Cisneros’s convictions and sentences. 

FACTS AND PROCEDURAL BACKGROUND

¶2 Cisneros was charged with several counts related to an 

aggravated assault involving a weapon and the subsequent discovery of 

marijuana in his car. During voir dire, Cisneros’s counsel asked the 

following questions related to whether a juror would want to hear “both 

sides of a story”: 

A defendant doesn’t have to offer any witnesses. They don’t 

have to offer any exhibits. That’s what the law is.

Does anybody, when you think about that, think about, you 

know, in your everyday life you want to hear both sides of the 

story, maybe. You think about if you’re accused of something, 

you’d want to tell your side.

That being, maybe being, the case, is there anybody who, 

when you honestly think about it, would have a hard time in 

this case if the defense didn’t present any evidence? Is there 

anybody who would want to hear both sides? 

¶3 After discussion with other jurors on these questions, Juror 48 

raised his juror card. The following exchange between Cisneros’s counsel

and Juror 48 occurred: 
STATE v. CISNEROS

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3 

[Cisneros’s counsel]: 48, what can you tell me about your 

concern as far as both sides of the story? 

[Juror 48]: . . . [I]f the State presented a compelling argument 

and the defense side did not defend themselves, it would lead 

me to believe that the defense was guilty.

[Cisneros’s counsel]: Even if the Court instructed you that 

that wasn’t the way the law works, that’s not how the law 

operates as far as a defendant, would you still have those 

feelings a little bit?

[Juror 48]: Right. If the State couldn’t present a compelling 

argument, then that would probably be okay for me, if they 

didn’t actually present a statement.

* * * 

 [Juror 48]: If [the State] did not present a compelling 

argument of guilt, then I would probably understand why the 

defendant would not want to speak up. But if the State did 

present evidence of a crime, I would think that they would 

want to defend themselves.

[Cisneros’s counsel]: Okay. So specifically if the State did 

present some evidence that a crime occurred and the defense 

offered no evidence, you’d have a problem? You’d hold that 

against the defendant?

[Juror 48]: Yes.

¶4 Once questioning ended, the court suggested a list of 

prospective jurors to be stricken for cause, including Juror 48. The State 

objected to striking Juror 48, stating: 

What I understood him saying is that if the State proves its 

case beyond a reasonable doubt, he would convict. If the 

defense didn’t present any evidence, then he would need to 

convict because that’s what the law requires. He would want 

to hear from the defense, if the State had proven its case, for 

contrary testimony. But he said that if the State had proven its 

case, he would hold them to that burden. So I don’t think 

there’s anything contrary to what the law says on that juror.
STATE v. CISNEROS

Decision of the Court

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Cisneros’s counsel argued that the line of questioning centered on Juror 48’s 

belief that an innocent defendant would present evidence to rebut the 

State’s case. He explained that rather than applying a reasonable doubt 

standard, Juror 48 would look for “compelling” evidence—a standard that

perhaps fell below reasonable doubt. The court denied Cisneros’s motion 

to strike Juror 48.

¶5 After the court struck other prospective jurors for cause, both 

the prosecution and defense were given six peremptory strikes. Neither 

side struck Juror 48, and he served on the jury. At trial, the State presented 

several witnesses in support of its case. Cisneros called only one witness, 

an investigator employed by Cisneros’s counsel. Cisneros did not testify

and was only present for two out of the five days of trial. 

¶6 The court read final instructions to the jury before it began

deliberations. The instructions repeated the presumption of innocence and 

charged the jury to disregard Cisneros’s failure to testify or any failure to 

supply evidence while considering its finding of guilt or innocence. The 

court charged the jury to comply with its instructions.

¶7 After deliberation, the jury found Cisneros guilty of 

aggravated assault and possession or use of marijuana. The defense polled 

the jury, and each juror confirmed the verdicts. Cisneros timely appealed, 

and we have jurisdiction under Arizona Revised Statutes (“A.R.S.”) 

sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶8 Cisneros argues that the superior court abused its discretion 

by denying his motion to strike Juror 48 for cause because the juror’s voir 

dire answers revealed a bias against a non-testifying defendant. Cisneros’s 

argument fails, however, because neither Juror 48 nor any of the other 

prospective jurors expressed disagreement with an express statement 

during voir direthat “a defendant in a criminal case has a right not to testify” 

and that “[t]he exercise of that right cannot be considered by the jury in 

determining guilt or innocence.” Juror 48’s subsequent comments that 

Cisneros challenges on appeal did not expressly state a bias against a 

non-testifying defendant, and neither the prosecutor nor defense counsel 

interpreted Juror 48’s comments to be directed at whether a defendant 

chose not to testify. Under the circumstances presented, the superior court 

reasonably interpreted Juror 48’s comments to relate to the need for a 

defendant to provide some type of rebuttal evidence if the State presents a 

compelling case against the defendant. The court did not err by accepting 
STATE v. CISNEROS

Decision of the Court

5 

the parties’ interpretation of Juror 48’s comments and by concluding that 

Cisneros did not establish a basis for striking Juror 48 for cause.

¶9 Arizona law provides that cause to excuse a prospective juror 

exists “[w]hen there is reasonable ground to believe that a juror cannot 

render a fair and impartial verdict.” Ariz. R. Crim. P. 18.4(b) (2016). “The 

party challenging the juror bears the burden of establishing that the juror 

could not be fair and impartial.” State v. Hoskins, 199 Ariz. 127, 139, ¶ 37, 

(2000), supplemented on other grounds, 204 Ariz. 572 (2003); State v. Trostle, 

191 Ariz. 4, 13 (1997). In assessing a potential juror’s fairness and 

impartiality, the superior court has the best opportunity to observe 

prospective jurors and thereby judge the credibility of each. See State v. 

Lavers, 168 Ariz. 376, 390 (1991); State v. Pawley, 123 Ariz. 387, 389 (App.

1979). For that reason, “we will not set aside the trial court’s ruling on a 

challenge to a juror absent a clear showing that the court abused its 

discretion.” Lavers, 168 Ariz. at 390. 

¶10 “Impartiality is not a technical conception. It is a state of mind. 

For the ascertainment of this mental attitude of appropriate indifference, 

the Constitution lays down no particular tests and procedure is not chained 

to any ancient and artificial formula.” United States v. Wood, 299 U.S. 123, 

145–46 (1936). The United States Supreme Court has held that jury selection 

is “particularly within the province of the trial judge.” Ristaino v. Ross, 424 

U.S. 589, 595 (1976) (quoting Rideau v. Louisiana, 373 U.S. 723, 733 (1963) 

(Clark, J., dissenting)). “Reviewing courts are properly resistant to 

second-guessing the trial judge’s estimation of a juror’s impartiality, for that 

judge’s appraisal is ordinarily influenced by a host of factors impossible to 

capture fully in the record—among them, the prospective juror’s inflection, 

sincerity, demeanor, candor, body language, and apprehension of duty.”

Skilling v. United States, 561 U.S. 358, 386 (2010) (emphasis added). A court’s 

rulings on for-cause challenges also reflect a recognition that juror 

testimony on voir dire may be “ambiguous and at times contradictory.” 

Patton v. Yount, 467 U.S. 1025, 1039 (1984). “[T]he lay persons on the panel 

may never have been subjected to the type of leading questions and 

cross-examination tactics that frequently are employed,” and therefore, 

they “cannot be expected invariably to express themselves carefully or even 

consistently.” Id. Thus, provided “the juror ultimately assures the court that 

he or she can be fair and impartial, the juror need not be excused.” State v. 

Purcell, 199 Ariz. 319, 323, ¶ 8 (App. 2001); see also State v. Payne, 233 Ariz. 

484, 499, ¶ 23 (2013). 

¶11 The superior court did not abuse its discretion by declining to 

strike Juror 48 for cause. Juror 48’s statement that he “would probably 
STATE v. CISNEROS

Decision of the Court

6 

understand why the defendant would not want to speak up” if the State 

did not present a “compelling argument of guilt” can be reasonably 

construed as focusing on the strength of the State’s case, and whether—as 

the juror further noted—the defendant “would want to defend themselves”

should the State present compelling evidence of guilt. Whether a defendant 

wants to defend himself does not necessarily implicate a requirement that 

a defendant testify. Juror 48’s acknowledgment that he would be willing to 

acquit the defendant if the State did not prove its case provided a basis from 

which the court could conclude the juror would not improperly penalize a 

defendant for not testifying or presenting a case.

¶12 Moreover, neither Cisneros’s counsel nor the prosecutor 

considered Juror 48’s statement to be focused on a defendant’s decision not 

to testify. The prosecutor paraphrased Juror 48’s views as requiring 

“contrary testimony”—without indicating testimony from the defendant 

himself—if the State presented a compelling case. Neither Cisneros’s 

counsel nor the court disagreed with that depiction of Juror 48’s views. 

Under these circumstances, the superior court did not abuse its discretion 

by interpreting Juror 48’s statement to be focused on the burden of proof

applicable in a criminal case. 

¶13 Nor has Cisneros established that Juror 48 did not understand 

the burden of proof required for a criminal case. There is not a significant 

distinction between Juror 48’s layman’s view of requiring “compelling 

evidence” versus a legal requirement of being “firmly convinced” of guilt.

And the superior court informed the jury of the State’s burden of proof and 

the defendant’s presumption of innocence before the exchange between 

Cisneros’s counsel and Juror 48 occurred, stating: 

The law requires that the State prove the defendant guilty 

beyond a reasonable doubt. The defendant is presumed by 

law to be innocent. This means that the defendant is not 

required to prove innocence or to produce any evidence. . . . 

Also, a defendant in a criminal case has a right not to testify 

at a trial. The exercise of that right cannot be considered by 

the jury in determining guilt or innocence.

The court then asked if any prospective juror did not understand or agree 

with those principles of law. Juror 48 did not indicate any

misunderstanding or disagreement. After Cisneros’s counsel questioned 

Juror 48, he continued to explore the jurors’ perspective on the State’s 

burden, asking:
STATE v. CISNEROS

Decision of the Court

7 

[L]et’s say you are only 51 to 60 percent sure that the State’s 

version of events is correct. You think maybe [the crime] 

happened, but you are not firmly convinced. . . . There’s 

reasonable doubts left. But you still think that what the State 

is saying happened, might have happened, maybe even 

probably happened, but not quite to that reasonable doubt 

level. . . . Is there anybody who would have a problem voting 

for acquittal because, you know, I think something probably 

happened; it’s not quite proven to me, but I just can’t vote for 

acquittal because I think it probably happened, but no more? 

Juror 48 again did not indicate any issue with acquitting a defendant in that 

scenario. After several other jurors expressed confusion with counsel’s 

questions and phrasing of the State’s burden of proof, the court clarified: 

Ignore that 51 percent. [Cisneros’s counsel is] talking about a 

civil standard which does not apply to this case. You will be 

given instructions, if you are part of the jury panel, that 

beyond a reasonable doubt, the standard is that you are firmly 

convinced. That’s what reasonable doubt is, but you’ll be 

given a definition later. . . . So [Cisneros’s counsel’s] question 

is if you believe the State has not met their burden of proof, 

which is beyond a reasonable doubt, which leaves you firmly 

convinced of the defendant’s guilt, can you find his client not 

guilty? If you can’t follow that instruction, that [is] what he’s 

trying to figure out. 

Juror 48 once again did not indicate any issue with following the court’s

instruction.

¶14 Although Juror 48 may not have answered the voir dire

questions with lawyerly precision, the superior court decides if a juror

ultimately can be fair and impartial and follow the instructions as given. 

Patton, 467 U.S. at 1039. The court acted within its discretion by determining 

that Juror 48 had a proper understanding or “apprehension of duty.” 

Skilling, 561 U.S. at 386; see also Purcell, 199 Ariz. at 323, ¶¶ 12–13 (court did 

not err by refusing to strike a juror who initially expressed the belief that 

personal experiences might affect her, but later indicated she could be fair 

and impartial). Juror 48’s statements and acknowledgments, when read 

together, do not reveal “an inability to serve as a fair and impartial juror.” 

Lavers, 168 Ariz. at 391. Thus, because Cisneros has not carried his burden 

of showing that Juror 48 could not be fair and impartial, he has not 
STATE v. CISNEROS

Decision of the Court

8 

established that the court abused its discretion by denying the motion to 

strike Juror 48 for cause.1

CONCLUSION

¶15 For the foregoing reasons, we affirm Cisneros’s convictions

and sentences. 

C A M P B E L L, J., Concurring in the Judgment:

¶16 Under the “cure or waive” rule adopted in State v. Rubio, 219 

Ariz. 177, 181, ¶ 12 (App. 2008), Cisneros has waived review of his claim of 

error because he failed to use his peremptory challenge on Juror 48. While 

unfair or biased jurors should be removed for cause, when an error occurs, 

“the defendant should peremptorily strike a truly biased or unqualified 

juror before peremptorily striking a juror for a lesser reason not affecting 

his right to a fair and impartial trial.” Id. Failure to do so waives the issue 

on appeal. Id. Here, although Cisneros had six peremptory strikes, he failed 

to use one to remove Juror 48. He used all his available strikes to remove 

jurors he had not challenged for cause. Accordingly, Cisneros waived this 

issue by failing to use a peremptory strike to remove the biased juror. 

¶17 I note that the “cure or waive” rule in conjunction with other 

Arizona caselaw gives defendants a small window to challenge the 

presence of a biased juror. Indeed, under State v. Hickman, 205 Ariz. 192, 

198, ¶ 28 (2003), our supreme court concluded that the curative use of a 

peremptory strike was subject to harmless error review. Read together, 

Hickman and Rubio leave no avenue for a defendant to appeal the superior 

court’s denial of a request to strike a biased juror for cause: Hickman bars 

relief when the defense uses a peremptory strike; Rubio bars relief when the 

defense fails to do so. Even though an appeal is not available when the court 

fails to strike a biased juror for cause, an avenue for correction does exist—

the peremptory strike itself. Indeed, peremptory challenges exist to ensure 

the selection of an unbiased jury. Georgia v. McCollum, 505 U.S. 42, 57 (1992); 

 

1 Because we conclude the court did not err by failing to strike Juror 

48 for cause, we decline to address whether Cisneros’s failure to use a 

peremptory strike to remove Juror 48 waived any claim of error under the 

“cure or waive” rule announced in State v. Rubio, 219 Ariz. 177, 181, ¶ 12 

(App. 2008), or whether it would be structural error to allow a biased juror 

to serve.
STATE v. CISNEROS

Campbell, J., Specially Concurring

9 

Rubio, 219 Ariz. at 180, ¶ 9. Cisneros had the opportunity to cure the 

superior court’s error with a mechanism designed for this very purpose. By 

failing to do so, he has waived any error on appeal. 

¶18 Cisneros argues that the presence of Juror 48 constituted 

structural error. I disagree. “Unlike trial errors, structural errors deprive 

defendants of basic protections without which a criminal trial cannot 

reliably serve its function as a vehicle for determination of guilt or 

innocence . . . and no criminal punishment may be regarded as 

fundamentally fair.” State v. Ring, 204 Ariz. 534, 552, ¶ 45 (2003) (quotations 

and citations omitted). Arizona law provides a structural safeguard for a 

defendant to cure error when he believes that a juror should have been 

stricken for cause—use of a peremptory strike. Failure to use a strike in this 

fashion waives the issue on appeal and may allow a biased juror to sit on a 

jury panel. Arizona law already permits this in certain circumstances. See, 

e.g., State v. Bravo, 131 Ariz. 168, 171 (App. 1981) (“[E]ven though the 

answers of a venireman demonstrate that he cannot be fair and impartial, 

the challenge may be waived.”). Moreover, Juror 48 was properly 

instructed on Cisneros’ right to remain silent and that as a defendant, he 

need not present any evidence. We presume that jurors follow instructions 

given by the court. State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006). Therefore,

I would not hold that the superior court’s error was structural.

¶19 This analysis could evolve should a situation arise where a 

defendant lacked sufficient peremptory strikes to secure a fair and 

impartial jury. See, e.g., State v. Acuna Valenzuela, 245 Ariz. 197, 209, ¶ 23 

(2018). But here, no structural error exists. Cisneros was granted the basic 

protections required for his trial to serve as a vehicle for determination of 

guilt or innocence, including sufficient peremptory strikes to ensure a fair 

and impartial jury.