IN THE



## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA

, Appellee

,

v.

JUSTIN COLORADO

, Appellant

.

No. 1 CA

- CR 22

- 0290

Appeal from the Superior Court in Coconino County

No. S0300CR202000557

The Honorable Ted Stuart Reed

, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office

, Phoenix

By Brian R. Coffman

Counsel for Appellee

Coconino County Legal Defender’s Office

, Flagstaff

By Joseph Adam Carver

C ounsel for Appellant FILED 8-17-2023STATE v. COLORADO

Opinion of the Court

2 OPINION

Judge Andrew M. Ja c obs delivered the opinion of the Court, in which Chief

Judge David B. Gass and Judge Brian Y. Furuya joined.

J A C O B S

, Judge:

¶1 The Arizona S upreme C ourt abolished the use of peremptory

strikes in jury selection effective January 1, 2022. As a result

, p arties must

now rely solely upon strikes for cause in voir dire.

¶2 Th is appeal asks us to decide whether

, in light of the 2022

amendments

, we should apply the traditional abuse

- of

- discretion standard

to a trial court’s decision on a motion to strike a juror for cause, or whether

we should apply a de novo standard

. We disagree that the 2022 amendments

suggest any modification of the traditional standard, and see no error in the

trial court’s application of it

. We thus affirm the trial court’s denial of

appellant Justin Colorado’s motion to strike potential juror number eight

(Juror #8) for cause and Colorado’s conviction for first

- degree murder.

FACTS AND PROCEDURAL BACKGROUND

¶3 In July 2020, t he State charged Colorado with one count of

first

- degree murder, a domestic violence offense, alleging he shot and killed

his girlfriend in Flagstaff the previous month

. Before trial began in May

2022

, Colorado filed a motion seeking permission to exercise peremptory

strikes despite their abolition on January 1, 2022

. See Ariz. Sup. Ct. Order

No. R

- 21

- 0020 (Aug. 30, 2021) (amending Arizona Rules of Criminal

Procedure 18.4 and 18.5)

. The court denied his motion

.

¶4 The court

, with the parties’ input, then prepared c ase

- specific

questionnaires for potential jurors to complete and return before trial. See

Ariz. R. Crim. P. 16.3(c)

, (d) (4)

, 18.5( c)

. The urging to use case

- specific

written questionnaires became part of the Arizona R ules of Criminal

Procedure at the time of the 2022 amendments, as part of a unified scheme

of changes

. See Ariz. R. Crim. P. 18.5(c) cmt. to 2022 amend.; Statewide Jury

Selection Workgroup, Arizona Supreme Court Task Force on Jury Data

Collection, Practices, and Procedures, Report and Recommendations, at 3STATE v. COLORADO

Opinion of the Court

3 (2021) 1 (recognizing that case

- specific questionnaire s “will secure better

quality information for the exercise of for

- ca u se strikes”). The

questionnaires here served their intended purpose by providing in

- depth

information for the parties and the court to use in analyzing whether to

excus e potential jurors. Based on the questionnaire responses

, the parties

agreed to dismiss 159 potential jurors for cause or har d ship

, and the trial

court granted the State’s motion to strike one other for cause and denied

Colorado’s for

- cause motion to strike another

.

¶5 After that questionnaire

- driven screening

, 21 potential

jurors

— including Juror #8

— appeared for additional voir dire

. After the

court followed up with the juror s regarding their availability for trial, the

parties stipulated to remove four potential jurors for cause

. The court then

allowed counsel to continue voir d ire directly with those who remain ed

.

¶6 Juror #8 indicated on her questionnaire that the domestic

violence alleged in this case and her previous work experience as a nurse at

the Coconino County Sheriff’s Office c ould make it difficult to serve as

juror. Upon further questioning by the prosecutor, Juror #8 explained a

trial was pending regarding an incident in which an acquaintance of hers

was allegedly killed by a former boyfriend a year earlier in Flagstaff. When

asked whether that experience “would be an issue” in being fair and

impartial, Juror #8 responded, “I don’t think so.

. . . Not that I can tell .”

Defense counsel asked Juror #8 about her work experience at the Sheriff’s

Office, and she explained it would not affect her ability to serve as a juror

in this case. Defense counsel t h en moved to strike Juror #8 for cause. The

trial court denied the motion “at this time” subject to counsel’s further

questioning of Juror #8.

¶7 The court and counsel continued questioning Juror #8 outside

the presence of other jurors

. There, she provided more details about her

relationship with the domestic violence victim in the other pendin g trial,

and she indicated her concern for the victim’s child in that case would

“probably [make it] hard” to serve as a juror in this case “if there were

children involved.” Regarding her prior work experience at the Sheriff’s

Office, Juror #8 said she could be fair and impartial because she “no longer

work[s] there, ” and she did not recognize any names of former co

- workers

on the witness list

.

1 Available at https://www.azcourts.gov/Portals/74/Jury%20TF/SJS%20

Workgroup/SJSW_Final%20Report%20and%20Recommendations_11_01_

21.pdf?ver=QosXeyxN0xkk1IdwRQF

- cw%3d%3dSTATE v. COLORADO

Opinion of the Court

4 ¶8 After questioning ended, defense counsel renewed the

motion to strike

, to which the prosecutor object ed

. Before ruling, the trial

court asked whether the victim in this case had children

. B oth counsel

affirmed that she did not. “Well, with that said,” the court responded,

“[Juror #8] was quite clear that she believes she can be fair and impartial. I

don’t see anything [in] her demeanor or attitude or anything else that could

be interpreted as other than that, being a truthful statement

. . . . ” The court

denied the renewed motion to strike

. Juror #8 served on the jury.

¶9 The only disputed issue of fact at trial was whether Colorado

acted with premeditation when he shot and killed the victim

. See A.R.S. §

13

- 1105(A)(1) (“ A person commits first degree murder if

. . . [i] ntending or knowing that the person ’ s conduct will cause death, the person causes the

death of another person

. . . with premeditation

. . . . ”). T he jury deliberated

and returned a guilty verdict on the first

- degree charge , finding it was a

domestic violence offense

. At sentencing, t he court imposed a mandatory

natural life prison term

. Colorado timely appealed

. We have jurisdiction

under Article 6, Section 9, of the Arizona Constitution and A.R.S. § § 12

- 120.21(A)(1), 13

- 4031, and 13

- 4033(A)

.

DISCUSSION

I. Colorado’s Argument t hat the Standard of Review for For

- Cause

Strikes Should Change i s Unpersuasive.

A. Since 1864, Arizona Appellate Courts Have Deferred to

Trial Court Assessments of Whether Potential Jurors Can

Fairly Sit in Judgment , Because T hat Question Is Fact

Intensive.

¶10 Colorado frames his challenge to the denial of his motion to

strike Juror #8 for cause as an issue of standards of review. He asks wh ether

Arizona law should continue to apply abuse

- of

- discretion as the standard

for review ing the propriety of strikes for cause

. See State v. Allen

, 253 Ariz.

306, 307 ¶ ¶ 41, 47 (2022) ( applying abuse

- of

- discretion standard ). He urges

us to a pply instead a de novo standard that accords no such deference

, and

is typically used to review a trial court’s rulings on matters of law or mixed

questions of fact and law

. See State v. Mendoza

- Ruiz

, 225 Ariz. 473, 475 ¶ 6

(App. 2010) (“[W]e review the superior court’s legal decisions de novo

. ”).

¶11 Colorado argues Juror #8 ’s answers to certain questions mak e

it objectively clear she was unable to judge his case without bias

. While

doing so

, he likewise advocates for a new, asserte dly more objectiveSTATE v. COLORADO

Opinion of the Court

5 standard that he argues w ould not unduly defer to a juror’s subjective

assertions that they lack disqualifying bias es

.

¶12 Colorado emphasizes

, accurately, that Arizona case law often

discusses whether to exclude a juror with reference to the juror ’s assurances

of impartiality

. He then argues th at a n exclusively for

- cause system of

strikes is poorly served by caselaw relying (heavily, he claims) on juror

assurances of impartiality, concluding that trial courts now lack “articulable

legal standards” to guide their rulings on motions to strike for cause. For

this reason, he argues Arizona courts should henceforth review such s trikes

de novo

.

¶13 We reject Colorado’s argument in part because it disregards

160 years of Arizona legal history commending to the trial court

— not jurors

themselves

— the duty and authority to assess and address juror bias

. T hat

the trial court must excuse any juror who cannot act with impartiality has

been part of Arizona law since the Howell Code’s enactment in 1864. See

e.g.

, Howell Code, ch. XI, §§ 319

, 322 (1864) 2 ; see Rev. Stat. Ariz. Territory,

Penal Code §§ 910 ( 13 )

, 915 (1901 ); see also Leigh v. Territory

, 10 Ariz. 129

, 133

(1906) (“[I]t is

. . . for the court to determine whether or not [ the ] knowledge

or information [a juror has about the case] has in fact brought about in the

juror a state of mind which will prevent him from acting with entire

impartiality

. ”); Brady v. Territory

, 7 Ariz. 12, 19 (1900) (“The challenge [for

cause] raised an issue of fact upon which the court had to determine

whether the nature and strength of the opinion formed [by the juror] was

such as would prevent the juror from acting with entire impartiality ,” and

“[t] he finding of the trial court upon that issue should not be set aside by

the appellate court unless the error is manifest.”); Ariz. Code §§ 44

- 1313(j),

- 1314 (1939) ; Ariz. Rev. Code §§ 5035 ( 13 )

, 5036 (1928); Rev. Stat. Ariz.

, Penal

Code §§ 1023(13), 1024

– 25 (1913); see State v. Johnson

, 247 Ariz. 166, 197

– 99

¶¶ 113

– 21 (2019); State v. Tison

, 129 Ariz. 526, 533 (1981); State v. Evans

, 120

Ariz. 158, 160 (1978); State v. Narten

, 99 Ariz. 116, 121

– 22 n.1 (1965); Burnett

v. State

, 34 Ariz. 129, 135

- 36 (1928); see also Ariz. R. Crim. P. 219

– 20 (1956) ;

Ariz. R. Crim. P. 18.4(b) 2018 cmt. (noting that the contemporary

description for the standard first appeared in the 1973 Rules).

¶14 The current procedural rule governing challenges for cause is

Arizona Rule of Criminal Procedure 18.4(b)

, which provides in relevant

2 Territorial and historical statutes, co des, and rules are archived by the

Arizona State Library, Archives and Public Records , a division of the

Arizona Secretary of State, and made available through the Arizona

Memory Project, https://azmemory.azlibrary.gov /

.STATE v. COLORADO

Opinion of the Court

6 part that : “ The court, on motion or on its own, must excuse a prospective

juror or jurors from service in the case if there is a reasonable ground to

believe that the juror or jurors cannot render a fair and impartial verdict.”

The Arizona S upreme C ourt left this rule substantively unchanged when it

eliminat ed peremptory challenges and revised related procedures for jury

selection

, strong ly indicati ng it did not intend to change the law

surrounding reasonable grounds for excusal.

¶15 Throughout Arizona’s history

, its courts have treated the trial

court’s determination of what requires excusal as a factual question calling

for deference to the trial court. I n 1900 , the Arizona Supreme Court wrote

that :

T he challenge [for cause] raised an issue of fact upon which

the court had to determine whether the nature and strength

of the opinion formed [by the juror] was such as would

prevent the juror from acting with entire impartiality. The

finding of the trial court upon that issue should not be set aside by

the appellate court unless the error is manifest

.

Brady

, 7 Ariz. at 19 (emphasis added).

¶16 Six years later, the Arizona Supreme Court again underscored

th e fact

- intensive nature of such an inquiry

, calling it “ a question which

must be left largely to the wise discretion of the trial court ” so that “ the

determination of the trial court in that regard will not be disturbed on appeal, unless it appears to be clearly erroneous. ” Leigh

, 10 Ariz. at 133.

And as noted above, in a decision postdating the abolition of peremptory

challenges, the Arizona Supreme Court approvingly described the

standard of review applicable to challenges to for

- cause strikes as a

deferential standard : “Reviewing courts defer to the trial judge’s

perceptions of the juror and question only whether the judge’s findings are supported by the record.” See Allen

, 253 Ariz. at 307 ¶ 47

. As such,

Colorado’s argument s are contrary to our appellate courts’ longstanding

view

, still enshrined in Arizona law, that the trial court is in the best

position to perceive and assess juror s and any biases the juror s may harbor.

See id.

B. The 2022 Amendments Did Not Alter the Standard of

Review, While Making the Trial Court’s Inquiry in Voir

Dire About Bias Even More Fact

- Intensive.

¶17 We also reject Colorado’s position because the Arizona

Supreme Court did not adopt a de novo standard of review when enactingSTATE v. COLORADO

Opinion of the Court

7 the 2022 amendments to Rules 18.4 and 18.5 , which it could easily have

done

. See Pierce v. Underwood

, 487 U.S. 552, 558 (1988) (“For some few trial

court determinations, the question of what is the standard of appellate

review is answered by relatively explicit statutory command ,” however,

“ [f] or most others, the answer is provided by a long history of appellate

practice.”). To the contrary, the amended Rules appear to contemplate the

continued application of the abuse

- of

- discretion standard by requiring trial

courts to conduct a holistic

, fact

- intensive inquiry when evaluating a juror’s

self

- assurances of fairness, as they “consider the totality of a prospective

juror’s conduct and answers

. ” Ariz. R. Crim. P. 18.5(h) (emphasis added).

¶18 Colorado ’s argument is also unpersuasive because it would

undercut one of the lynchpins of the 2022 amendments. In eliminating

peremptory challenges, the Arizona Supreme Court was careful to put in

place structure s that would provide additional data from which the trial

court could investigate actual bias in jurors. As noted, Rule 18. 5 (c) now

urges the use of “ case

- specific written questionnaire [ s ]” to provide ample

data concerning potential jurors. Here, their use led to the excusal of a significant number of potential jurors, demonstrating the efficacy of this

tool. But the Arizona Supreme Court also urged wide

- ranging and open

ended discussions with potential jurors to allow for the most accurate

assessment of bias by the trial court. Rule 18.5(f ) requires the trial court to

“conduct a thorough oral examination of the prospective jurors and control

the voir dire examination. ” The 2022 Comment to Rule 18.5(f) goes further :

When feasible, the court should permit liberal and

comprehensive examination by the parties, refrain from

imp o sing inflexible time limits, and use open

- ended

questions that elicit prospective jurors’ views narratively

. T he

court should re

f rain from attempting to rehabilitate prospective

jurors by askin g leading, conclusory questions that encourage prospective jurors to affirm that they can set aside their opinions and

neutrally apply the law.

(Emphasis added

. )

¶19 The revised rules thus allow trial court s to develop a more

robust factual record

. Our trial courts have more facts to assess, more dialogue to consider before empaneling a juror

, a nd more information from

which to assess credibility before empaneling a juror

. A ll those facts make

motions to dismiss a juror for cause even more fact

- specific than before

. This robust factual record underscor es the need for continued abuse

- of

discretion review. The Comment to Rule 18.5(f) provide s an especiallySTATE v. COLORADO

Opinion of the Court

8 strong basis for rejecting Colorado’s position. I ts text discourages rote

affirmations that a prospective juror is un biased

. This address es Colorado’s

concern that Arizona law is somehow standardless because it reflects

undue deference to unpersuasive, subjective assurances of no bias by

potential jurors. Thus, Colorado’s proposed de novo standard of review is

not only contrary to our state’s longstanding practice of deferring to the

trial court but also contrary to the spirit, if not the letter, of the 2022

amendments the Arizona Supreme Court enacted

.

¶20 Colorado also incorrect ly suggest s longstanding but deleted

comments to Rule 18.4 support his argument against placing weight on potential juror s ’ assurances that they can be fair. He cites the pre

- 2022

comment to Rule 18.4(b), which provides that a party may base a challenge

for cause on a “showing of facts from which an ordinary person would

i[nfer] a likelihood of predisposition in favor of one of the parties

. ” Though

we agree the trial court remains free to infer bias from facts suggesting

predisposition, the 2022 amendments removed the comment on which he

relies. The 2022 amendments suggest the trial court is free to infer bias in

jurors on any reasonable basis, not just the fifteen grounds suggesting bias

previously enumerated in the deleted comment (some of which originate d

in Section 319 of the Howell Code).

C. Colorado’s Disagreement With Any Perceived

Rehabilitation of Juror #8 Provides No Basis to Change the

Standard of Review

.

¶21 Colorado’s complaint about the voir dire is, to some extent,

one about rehabilitation. Here, the trial court learned certain facts

concerning Juror #8’s potential bias from her questionnaire responses and

, given the questions they raised, engaged in colloqu ie s with her before

determin ing that she could sit fairly as a juror. The mere fact of

rehabilitation provides no reason to change standards of review. Either the

trial court or counsel may attempt through further individual questioning

to seek more information to explore potential bias, which may rehabilitate

a juror or strengthen the case to disqualify them

. See Ariz. R. Crim. P. 18.5(f)

(“Upon request, the court must allow the parties sufficient time, with other

reasonable limitations, to conduct a further oral examination of the

prospective jurors.”)

. This further inquiry is not only permitted but is

desirable because “[a] juror’s preconceived notions or opinions about a case

do not necessarily render that juror incompetent to fairly and impartially

sit in a case .” State v. Martinez

, 196 Ariz. 451, 459 ¶ 28 (2000). Indeed, Rule

18.5 (h) requires trial courts

, when ruling on a motion to strike for cause, to

elicit information from the subject juror relevant to the motion and toSTATE v. COLORADO

Opinion of the Court

9 consider “the totality of a prospective juror’s conduct” when determining

whether the juror can be fair and impartial. Ariz. R. Crim. P. 18.5 (g), (h).

¶22 Addressing how th is additional inquiry works

, Colorado

claims a juror’s personal assurances of his or her impartiality are

insufficient

, standing alone, to reveal the juror’s biases or preconceived

notions of a defendant’s guilt. We agree

. But Arizona law already

recognizes that insufficiency

. See , e.g., State v. Jimenez , 2 CA

- CR 2022

- 0062,

at *2 ¶8, 2023 WL 4529422 (Ariz. App. July 13, 2023) (“[T]he court need not

accept the subjective beliefs of challenged venirepersons regarding their

abilit y to remain unbiased.”) ; State v. Smith

, 182 Ariz. 113, 115 (App. 1995)

(“ We do not suggest that whenever a juror utters the words, ‘ I think I can

be fair, ’ the trial judge should deny a motion to strike for cause ,” because

“[t] hese issues are not to be resolved by ‘ magic words. ’ ”). Thus, as noted,

trial court s must evaluate a juror’s assurances of impartiality in the context

of the totality of factors under consideration by the trial court, including a juror’s demeanor and conduct. State v. Glassel

, 211 Ariz. 33, 48 ¶ 50 (2005)

(“ Trial judges are permitted to determine a potential juror ’ s credibility

when deciding whether to strike a juror for cause .”). If the juror’s

demeanor

, conduct

, or other factors give the court a reason to disbelieve his

or her personal assurances of serving fairly and impartially, the court

should strike the juror for cause. See State v. Burns

, 237 Ariz. 1, 13 ¶ 23 (2015)

( “ A trial judge must consider the entirety of a prospective juror’s demeanor

and behavior; if a juror’s promise to uphold the law is coupled with

ambiguous statements and uncertainty, the trial judge may strike the juror

for cause. ” ). Failing to do so risks reversible error if the record shows the

juror ultimately selected should have been stricken

.

¶23 The trial court’s closeness to juror demeanor drives our

deference to its factual determinations. Arizona law commends to the trial

court the task of weighing credibility when a juror gives assurances of

impartialit y

. T rial courts observe and assess the juror personally, while we only read a record. We, therefore

, appropriate ly defer to the trial court’s

credibility findings when ruling on motions to strike, just as we do with a

factfinder’s credibility determination s in other contexts. See Smith

, 182 Ariz.

at 115 (“What the juror actually conveyed in the moment of speaking is so dependent on demeanor and intonation as to be inaccessible to a reviewing

court ,” and “[t] hus, this is a paradigm case for deference to the trial judge,

who had the opportunity to see and hear her speak.”) ; see also State v.

Gonzalez

– Gutierrez, 187 Ariz. 116, 118 (1996) ( stating trial court determines

credibility of witnesses at pre

- trial suppression hearing); State v. Williams

, 209 Ariz. 228, 231 ¶ 6 (App. 2004) (addressing claim of insufficient evidence

and noting that “[a] lthough the record contains some conflicting evidence,STATE v. COLORADO

Opinion of the Court

10 it was for the jury to weigh the evidence and determine the credibility of

the witnesses ”). Thus, the deferential abuse

- of

- discretion standard is

appropriate for review ing a decision on a motion to strike for cause

. For all

of these reasons, Colorado’s arguments that the 2022 amendments modify,

or require modification of, the standard of review for for

- cause challenges

are unpersuasive.

II. The Trial Court Did Not Abuse its Discretion By Denying

Colorado’s Motion to Strike Juror #8 for Cause

.

¶24 Applying the abuse

- of

- discretion standard to the trial court’s

denial of Colorado’s motion to strike Juror #8 for cause, we find no error.

¶25 The trial court and the parties composed questionnaires for

the potential jurors to complete before appearing in court

. Complying with

Rule 18.5(f) and its 2022 comment

, the trial court also po s ed open

- ended

questions to Juror #8

, an d the trial court gave the parties a sufficient

opportunity to question Juror #8 outside the presence of the other potential

jurors

. Thus, as a threshold question, the trial court complied with the

procedural rules governing voir dire, as amended.

¶26 The extended individual voir dire of Juror #8 revealed

objective information that mitigated potential biases suggested by her

questionnaire

. For example, although she initial ly disclosed a domestic

violence incident that resulted in the death of her friend

, Juror #8 revealed

during further questioning that she and the victim were not “close

friend[s] .” Additionally, Juror #8 explained tha t her potential inability to

serve fairly stemmed from her concern for the victim’s surviving son.

Given Juror #8’s concern, t he trial court confirmed that in Colorado’s case,

there was no surviving child to provoke the potential ly bias ed response

about which Juror #8 warned.

¶27 In a similar vein, Juror #8 gave context to her questionnaire

disclosure of her past employment at the Sheriff’s Office

. Juror #8

explained she left that job before Colorado was arrested in this case

, and

thus had no personal interaction with him. She also confirmed that none of

the hospital employees she worked with appeared on the witness list in this

case

.

¶28 After using case

- specific questionnaires

, allowing further

questioning of Juror #8 by counsel

, and posing open

- ended questions to

Juror #8

— all steps called for in the 2022 amendments

— the trial court

denied Colorado’s motion to strike

. In doing so, it found Juror #8 “was

quite clear that

. . . she can be fair and impartia l” and nothing in herSTATE v. COLORADO

Opinion of the Court

11 “demeanor or attitude or anything” indicated any concerns that her

assurances were unt ruthful. Colorado points to nothing in the record that

counters the court’s finding that Juror #8’s assurances of impartiality were

credible

. See State v. Acuna Valenzuela

, 245 Ariz. 197, 209 ¶ 21 (2018) ( stating

rule that a “party asserting that the trial court erred in denying a motion to

strike a juror for cause has the burden of establishing that the juror is

incapable of rendering a fair and impartial verdict”) (quoting State v. Lavers

, 168 Ariz. 376, 390 (1991) )

.

¶29 S ignificant ly, defense counsel also expressly noted Juror #8

was “thoughtful” and “clearly has been thinking long and hard about this.”

This reasonable concession well captures the record we see on review

—

one in which a substantial colloquy unpacked the thoughts of a juror who

shared potential ly concerning information by questionnaire. The trial court

conducted the very colloquy the 2022 amendments urged , which allow ed

the court to assess whether Juror #8 should have been dismissed for cause

under Rule 18.4 (b). Because in this case the trial court that met

, questioned

, and listened to Juror # 8 had a logical and factual basis to find her able to

render a fair and impartial verdict, we see no basis to conclude the trial

court abused its discretion in denying Colorado’s motion to strike Juror #8

for cause

, and affirm.

CONCLUSION

¶30 The elimination of peremptory challenges in Arizona did

nothing to alter t he abuse

- of

- discretion standard of review that appl ies to a

trial court’s ruling on a motion to strike a potential juror for cause. The trial

court here did not abuse its discretion in denying Colorado ’s motion to

strike Juror #8. We affirm Colorado’s conviction and sentence.