SUPREME COURT OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

ROBERT DWIGHT HICKMAN,

Appellant.

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Arizona Supreme Court

No. CR-01-0424-PR

Court of Appeals

Division One

Nos. 1 CA-CR 00-0215

1 CA-CR 00-0542

(Consolidated)

Maricopa County

Superior Court

No. CR 98-009183

OPINION

Appeal from the Superior Court in Maricopa County

The Honorable Linda A. Akers, Judge

AFFIRMED

Memorandum Decision of the Court of Appeals

Division One, filed October 25, 2001

VACATED IN PART

JANET A. NAPOLITANO, ARIZONA ATTORNEY GENERAL Phoenix

By Randall M. Howe, Chief Counsel,

Criminal Appeals Section

and Cari McConeghy-Harris, Assistant Attorney General

Attorneys for Appellee

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix

By Louise Stark, Deputy Public Defender

Attorneys for Appellant

RYAN, Justice

¶1 State v. Huerta requires automatic reversal of a criminal

trial when a defendant uses a peremptory strike to remove a

prospective juror whom the trial court should have excused for
1 Hickman argues that the State failed to raise MartinezSalazar at trial or on appeal, thus waiving the right to do so now.

Although true, in the interests of judicial economy, we granted

review to address this issue as it has been raised a number of

times previously since Martinez-Salazar, see, e.g., State v.

Ibanez, 201 Ariz. 56, 59-60, ¶¶ 11-14, 31 P.3d 830, 833-34 (App.

2001), and is an issue of statewide importance. See Barrio v. San

Manuel Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 104, 692

P.2d 280, 283 (1984).

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cause. 175 Ariz. 262, 266, 855 P.2d 776, 780 (1993). We granted

review to reexamine Huerta’s automatic reversal rule in light of

the United States Supreme Court’s decision in United States v.

Martinez-Salazar, 528 U.S. 304 (2000),1 and other recent

developments with respect to this issue. We have jurisdiction

under Article 6, Section 5(3), of the Arizona Constitution, and

Arizona Revised Statutes (“A.R.S.”) sections 13-4031 and -4032

(2001).

I.

¶2 A jury convicted Robert Dwight Hickman of three counts of

sexual exploitation of a minor for downloading child pornography

from the Internet. Hickman appealed raising several issues,

including whether the trial court committed reversible error by

failing to strike two potential jurors for cause, thereby forcing

him to exercise two of his peremptory strikes to remove the

venirepersons.

¶3 During voir dire, two venirepersons indicated that they
2 The court of appeals found it unnecessary to determine

whether there was error in failing to remove both venirepersons, as

Huerta compels reversal for one error. State v. Hickman, 1 CA-CR

00-0215, 1 CA-CR 00-0542 (Consolidated), slip op. at ¶ 6 (Ariz.

App. Oct. 25, 2001) (mem. decision).

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had serious reservations about serving on a jury in this case. One

venireperson stated, “I’m not quite sure I can be fair with the

emotions involved.” A second venireperson stated that she would

not be able to render a fair verdict. Hickman asked the trial

court to strike the potential venirepersons, but the court denied

the request. Hickman subsequently used two peremptory challenges

to remove both from the panel and was convicted by a fair and

impartial jury.

¶4 On appeal, citing Huerta, Hickman argued that the trial

court’s erroneous failure to remove the prospective jurors

constituted an abuse of discretion and required automatic reversal.

The court of appeals held that “[i]n light of [the venireperson’s]

unambiguous responses indicating that she would be biased and

therefore unable to render a fair verdict, the trial court erred in

refusing to strike her for cause.”2 State v. Hickman, 1 CA-CR 00-

0215, 1 CA-CR 00-0542 (Consolidated), slip op. at ¶ 9 (Ariz. App.

Oct. 25, 2001) (mem. decision). The court remanded the case for a

new trial.
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II.

A.

¶5 In Huerta, a majority of this court held that a

defendant’s substantial right to peremptory challenges is violated

when a trial judge erroneously denies a challenge to a juror for

cause, regardless of whether the defendant was actually prejudiced.

175 Ariz. at 266, 855 P.2d at 780. The majority reasoned that in

most cases it is impossible for a party to show the effect of the

trial judge’s error upon the outcome of the trial. Id. It said

the only certain thing is “the trial judge’s error forces the party

correctly challenging a juror for cause to waste a peremptory

challenge, giving that party one less peremptory challenge than the

other side.” Id. Thus, the Huerta majority concluded that

“[r]eversal is the only feasible way to vindicate a party’s

‘substantial right’ to peremptory challenges.” Id. Two justices

dissented, contending that reversal should not be required in the

absence of a showing of prejudice. Id. at 269, 855 P.2d at 783

(Corcoran, J., dissenting); id. at 271, 855 P.2d at 785 (Martone,

J., dissenting).

¶6 The question on review is whether we should continue to

follow Huerta’s automatic reversal rule. We conclude that in light

of the Supreme Court’s decision in Martinez-Salazar and the

decisions of courts in other jurisdictions that overruled their

similar automatic reversal rule, Huerta should be overruled. We
3 Because Oklahoma law had long held that defendants were

required to use their peremptory strikes to cure trial court errors

on challenges for cause, the Ross court did not reach the issue of

whether a defendant being forced to exercise a peremptory challenge

to cure a trial court error, absent state law requiring him to do

so, was a denial or impairment of his right to exercise peremptory

challenges under state law. Id. at 91 n.4.

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begin our analysis by examining an earlier decision of the Court

that foreshadowed the result reached in Martinez-Salazar.

B.

¶7 In Ross v. Oklahoma, the Court held that the Sixth and

Fourteenth Amendments do not compel reversal when a state law

requires a defendant to use a peremptory challenge to cure a trial

court’s erroneous denial of a challenge for cause. 487 U.S. 81,

88-89 (1988). The Oklahoma rule at issue in that case had been

interpreted by the Oklahoma courts as requiring that a defendant

use his peremptory challenges to cure the trial court’s for-cause

error. Id. at 89-90. If the defendant did not exercise a

peremptory challenge to remove an erroneously retained juror, the

defendant waived the right to argue that reversible error occurred.

Id. at 89. The Court thus concluded Oklahoma intended that the

number of peremptory challenges it chose to give a defendant

included any peremptory challenges that a defendant might use to

cure a trial court’s error. Id. at 90-91. Because the defendant

“received all [the peremptory challenges] that Oklahoma law allowed

him,” no error occurred. Id. at 91.3
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¶8 After Ross, most jurisdictions that considered the issue

either rejected the automatic reversal rule or reaffirmed their

jurisdiction’s prior opinions that the curative use of a peremptory

challenge was not reversible error, absent prejudice to the

defendant. See, e.g., Pickens v. State, 783 S.W.2d 341, 345 (Ark.

1993); Dawson v. State, 581 A.2d 1078, 1093-94 (Del. 1990), vacated

on other grounds by Dawson v. Delaware, 503 U.S. 159 (1992);

Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990); State v. Graham,

780 P.2d 1103, 1108 n.3 (Haw. 1989); People v. Gleasch, 568 N.E.2d

348, 353 (Ill. 1991); Vaughn v. State, 559 N.E.2d 610, 614 (Ind.

1990); State v. Neuendorf, 509 N.W.2d 743, 747 (Iowa 1993);

Williams v. Commonwealth, 829 S.W.2d 942, 943 (Ky. Ct. App. 1992);

Hunt v. State, 583 A.2d 218, 233 (Md. 1990); Mettetal v. State, 602

So. 2d 864, 869 (Miss. 1992); State v. DiFrisco, 645 A.2d 734, 751-

53 (N.J. 1994); State v. Tranby, 437 N.W.2d 817, 824 (N.D. 1989);

State v. Broom, 533 N.E.2d 682, 695 (Ohio 1988); State v. Green,

392 S.E.2d 157, 160 (S.C. 1990); State v. Middlebrooks, 840 S.W.2d

317, 329 (Tenn. 1992); State v. Menzies, 889 P.2d 393, 398 (Utah

1994); State v. Traylor, 489 N.W.2d 626, 629 (Wis. Ct. App. 1992).

¶9 The Huerta majority, however, concluded that Ross was not

controlling because “[o]ur earlier cases . . . are not bottomed on

federal constitutional law, but upon state procedural law, which is

established by a long line of Arizona authority.” 175 Ariz. at

265, 855 P.2d at 779. In examining our prior cases, the court
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stated, “Arizona courts have long held that a litigant who is

denied the full use of the allotted peremptory challenges is denied

a substantial right, which requires reversal, even absent an

independent showing of prejudice.” Id. at 263, 855 P.2d at 777.

C.

¶10 In 2000, the Supreme Court in Martinez-Salazar, in

examining Federal Rule of Criminal Procedure 24(b), held that an

erroneous denial by the district court of a challenge for cause of

a juror, followed by the defendant’s use of a peremptory challenge

to remove that juror, does not deprive the defendant of any “rulebased or constitutional right” if the defendant is subsequently

convicted by an impartial jury. 528 U.S. at 307. Specifically,

the Court held the following:

We . . . hold that a defendant’s exercise of peremptory

challenges . . . is not denied or impaired when the

defendant chooses to use a peremptory challenge to remove

a juror who should have been excused for cause.

Martinez-Salazar and his co-defendant were accorded 11

peremptory challenges, the exact number... allowed.

Id. at 317.

¶11 The Court acknowledged the important role peremptory

challenges play in “reinforcing a defendant’s right to trial by an

impartial jury.” Id. at 311. However, the Court pointed out that

“such challenges are auxiliary; unlike the right to an impartial

jury guaranteed by the Sixth Amendment, peremptory challenges are

not of federal constitutional dimension.” Id. (citing Ross, 487
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U.S. at 88; Stillson v. United States, 250 U.S. 583, 586 (1919)).

Thus, a defendant’s exercise of a peremptory challenge to cure a

trial court’s error in denying a challenge for cause, without more,

does not violate the constitutional right to an impartial jury.

Id. at 313.

¶12 The Court, however, rejected the Government’s argument

that the federal rule should be construed to require that a

defendant use a peremptory challenge to remove a juror the trial

court should have struck for cause “to preserve the claim that the

for-cause ruling impaired the defendant’s right to a fair trial.”

Id. at 314. Instead, the Court concluded that “Martinez-Salazar

had the option of letting [the venireperson] sit on the petit jury

and, upon conviction, pursuing a Sixth Amendment challenge on

appeal.” Id. at 315. Martinez-Salazar made a strategic choice

when he elected to remove the juror. Id. Martinez-Salazar’s due

process rights were not violated, because, in the Court’s view,

“[a] hard choice is not the same as no choice.” Id.

¶13 In a concurring opinion, Justice Scalia, joined by

Justice Kennedy, expressed reservations about the majority’s

conclusion that Martinez-Salazar could have opted to leave the

challenged juror on the jury, and upon conviction, pursue a Sixth

Amendment challenge on appeal. Id. at 318-19. He questioned

whether the “normal principles of waiver” would not “disable a

defendant from objecting on appeal to the seating of a juror he was
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entirely able to prevent.” Id. at 318. Because this question was

not presented, he believed that the majority should not have

addressed it. Id. at 319. Accordingly, Martinez-Salazar left open

the question of whether a harmless error analysis would apply to a

defendant’s use of a peremptory challenge to cure a trial court’s

erroneous denial of a challenge for cause. See William T. Pizzi &

Morris B. Hoffman, Jury Selection Errors on Appeal, 38 Am. Crim. L.

Rev. 1391, 1403-06 (2001).

¶14 Despite the question left open by Martinez-Salazar,

several state courts, citing Martinez-Salazar, have adopted the

rule that, absent a showing of prejudice, a defendant’s use of a

peremptory challenge to cure a trial court’s erroneous denial of a

challenge for cause does not violate any right based on the state

constitution, rule or statute. See, e.g., Green v. Maynard, 564

S.E.2d 83, 86 (S.C. 2002); State v. Verhoef, 627 N.W.2d 437, 441-42

(S.D. 2001); State v. Fire, 34 P.3d 1218, 1225 (Wash. 2001); State

v. Lindell, 629 N.W.2d 223, 250, ¶¶ 112-13 (Wis. 2001).

¶15 In Verhoef, the South Dakota Supreme Court held that

Martinez-Salazar “clearly sets aside” prior case law that any

federal constitutional right was denied when a defendant used a

peremptory challenge to remove a juror the trial court should have

struck for cause, thereby losing a peremptory challenge that could

have been used on another juror. 627 N.W.2d at 441. The court

further found no principled basis for interpreting state statutory
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or constitutional provisions as granting broader rights than the

United States Constitution. Id. at 442.

¶16 Fire and Lindell both held that because the right to

peremptory challenges is not a constitutional right, a defendant’s

curative use of a peremptory challenge should be reviewed for

harmless error. Fire, 34 P.3d at 1222; Lindell, 629 N.W.2d at 250,

¶ 111.

¶17 In Fire, the Washington Supreme Court acknowledged

conflicting lines of Washington appellate cases on this issue. 34

P.3d at 1222. One line of cases held that even though no biased

juror sat on a trial, “prejudice occurs in the deprivation of one

peremptory challenge to which a defendant is entitled.” Id. at

1222-23 (citing State v. Stentz, 70 P. 241 (Wash. 1902)). Another

line of cases held that when a defendant uses a peremptory

challenge to cure a trial court’s error, a further showing of

prejudice is needed before reversal is required. Id. Relying on

Martinez-Salazar, the Fire court held that

if a defendant through the use of a peremptory challenge

elects to cure a trial court’s error in not excusing a

juror for cause, exhausts his peremptory challenges

before the completion of jury selection, and is

subsequently convicted by a jury on which no biased juror

sat, he has not demonstrated prejudice, and reversal of

his conviction is not warranted.

Id. at 1225.

¶18 Similarly, the Wisconsin Supreme Court adopted MartinezSalazar and overruled State v. Ramos, 564 N.W.2d 328 (Wis. 1997),
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a case that had established a rule similar to Huerta’s. Lindell,

629 N.W.2d at 236, ¶ 53, 245, ¶¶ 91-93, 252, ¶ 120. In its

discussion, the Lindell court stated the following: “Another

disturbing element of the Ramos decision is that it requires a new

trial in cases where the trial was nearly perfect and the verdict

is unquestionably sound. Yet, we examine error in other situations

- both statutory and constitutional - for harmful effect.” 629

N.W.2d at 249, ¶ 107 (footnotes omitted).

¶19 To be sure, a few courts have rejected Martinez-Salazar.

See, e.g., People v. Lefebre, 5 P.3d 295, 307 (Colo. 2000)

(rejecting both Ross and Martinez-Salazar, and holding that “[o]ur

decisions have consistently recognized that, under Colorado law, a

defendant suffers reversible prejudice if he is forced to use a

peremptory challenge to remove a juror whom the trial court failed

to remove for cause and he exhausts his peremptory challenges”);

Gamble v. Commonwealth, 68 S.W.3d 367, 374 (Ky. 2002) (holding,

without discussing Martinez-Salazar, that prejudice is presumed

when a defendant is forced to exhaust his peremptory challenges

against prospective jurors who should have been excused for cause);

Brown v. Commonwealth, 533 S.E.2d 4, 8 n.2 (Va. Ct. App. 2000)

(forcing a defendant to use a peremptory challenge to remove a

juror the trial court should have struck for cause is prejudicial

error because the defendant is denied his statutory right to

exercise his full complement of peremptory strikes on a panel free
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from members who should have been struck for cause).

¶20 Nevertheless, a majority of state courts, both before and

after Martinez-Salazar, hold that the curative use of a peremptory

challenge violates neither a constitutional right, nor a rule -

based or statute - based right. These courts require a showing of

prejudice before a case will be reversed when a defendant uses a

peremptory challenge to remove a juror the trial court should have

excused for cause.

III.

¶21 The question then becomes whether Arizona should join

those states that have adopted the principles of Ross and MartinezSalazar, and require a showing of prejudice before reversing an

otherwise valid criminal conviction. We conclude we should for two

reasons. First, requiring such a showing would be consistent with

the early Arizona case law that addressed this issue. Second, such

a rule would be consistent with two provisions of our constitution

and with Arizona’s harmless error statute. We first review the

Arizona case law that examined a defendant’s curative use of a

peremptory challenge.

A.

¶22 For more than fifty years this court consistently held

that a trial court’s erroneous denial of a challenge for cause was

technical error, not subject to reversal in the absence of
4 The court also uniformly held that other errors in jury

selection did not require reversal in the absence of prejudice.

See, e.g., Sam v. State, 33 Ariz. 383, 399, 265 P. 609, 615 (1928)

(holding that a trial court’s mistaken denial of a challenge to a

jury panel because certain potential jurors were mistakenly not

included in the venire was not reversible error because there was

no showing of prejudice to the defendants); Lawrence v. State, 29

Ariz. 247, 256-57, 240 P. 863, 867 (1925) (holding that even though

the jury list from which the petit jury was selected was improperly

prepared in violation of the law, the conviction would not be

reversed in the absence of a showing that the jury that decided the

case was not fair and impartial).

5 The provision was renumbered in 1960. For convenience, in

the rest of this opinion we will refer to the current section

number. The wording is the same.

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prejudice to the defendant.4 The earliest case that addressed the

issue was Encinas v. State, 26 Ariz. 24, 221 P. 232 (1923). In

that case, the defendant used five peremptory challenges to dismiss

five potential jurors the trial court failed to dismiss for cause.

Id. at 27, 221 P. at 233. In rejecting the defendant’s claim of

error, the court stated:

The important thing is that it does not appear that an

objectionable juror was forced upon the defendant....

Even though the court may have erred in disallowing the

five, or some of the five, challenges made by defendant

for cause and urged on this appeal as erroneous, the

record disclosing that the twelve jurors who served were

not disqualified, such disallowances did not amount to

prejudicial error, and would not warrant a reversal.

Id. at 29, 221 P. at 233 (citations and internal quotations

omitted). In reaching its conclusion, the court relied primarily

on Arizona’s constitutional harmless error provision, also known as

the substantial justice provision. See Ariz. Const. art. 6, § 22,

amended by Ariz. Const. art. 6, § 27.5 That provision provides
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that “[n]o cause shall be reversed for technical error in pleadings

or proceedings when upon the whole case it shall appear that

substantial justice has been done.” Id. The court also relied on

the Revised Statutes of Arizona, Penal Code § 1170 (1913), which

declared in part that no “criminal case shall be reversed for

technical error in pleading or proceedings when upon the whole case

it appears that substantial justice has been done.”

¶23 Following Encinas, this court twice held that a trial

court’s erroneous ruling on whether a juror was qualified to sit

was not grounds for reversal in the absence of prejudice to the

defendant. In Kinsey v. State, the court held that “[t]he

exclusion of a juror by the court, even though erroneous, is of

itself never a ground for a reversal, for the defendant is not

entitled to have his case tried by any particular juror, but merely

by twelve who are properly qualified and impartial.” 49 Ariz. 201,

209-10, 65 P.2d 1141, 1145 (1937). And, in Conner v. State, the

court, citing Article 6, Section 27, held that the erroneous denial

of a challenge for cause, and the defendant’s subsequent use of a

peremptory challenge to remove that juror, did not require reversal

when a fair and impartial jury decided the case. 54 Ariz. 68, 74-

75, 92 P.2d 524, 527 (1939). The court reasoned that if the jury

is lawful, the defendant’s constitutional right to a trial by an

impartial jury has been satisfied, “even though some of the formal

provisions of the law regarding the manner of their selection may
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have been disregarded.” Id. at 75, 92 P.2d at 527. The court

concluded that the “defendant is not entitled to be tried by any

particular jury, but merely by one which is fair and impartial.”

Id. Moreover, “formal rules of law regarding formation of a jury

are intended to secure this kind of a jury, and have no other

purpose.” Id. at 74-75, 92 P.2d at 527.

B.

¶24 The rule established by Encinas, Kinsey, and Conner was

the rule until Wasko v. Frankel, 116 Ariz. 288, 569 P.2d 230

(1977). In a civil case, this court, for the first time, ruled

that a party’s use of a peremptory challenge to remove a juror the

trial court should have removed for cause was reversible error even

in the absence of prejudice. Id. at 290, 569 P.2d at 232. The

court never mentioned Encinas, Kinsey, or Conner. Instead, the

court relied upon a Utah case to justify its holding.

¶25 The case relied upon by the Wasko court, Crawford v.

Manning, abandoned long-standing Utah precedent and established a

new rule, without explaining why it was doing so and with very

little analysis. 542 P.2d 1091, 1093 (Utah 1975). In that case,

the Utah Supreme Court held that a defendant should not be

compelled to “waste” a peremptory challenge to obtain a lawful

jury, and that the refusal to strike a juror for cause was

“prejudicial error” requiring automatic reversal. Id. However, in

1994, the Utah Supreme Court, citing Ross, overruled Crawford in
6 In reaching its conclusion, the court disapproved of an

earlier decision, Brough v. State, 55 Ariz. 276, 101 P.2d 196

(1940), which held that a trial court’s mistake in giving the

defendant fewer peremptory challenges than the law allowed did not

prejudice the defendant under the substantial justice provision.

State v. Thompson, 68 Ariz. 386, 391-92, 206 P.2d 1037, 1040

(1949). The court, however, expressly acknowledged the continuing

validity of Kinsey and Conner. Id.

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State v. Menzies, 889 P.2d at 398. The Menzies court held that

“[t]o prevail on a claim of error based on the failure to remove a

juror for cause, a defendant must demonstrate prejudice, [by]

show[ing] that a member of the jury was partial or incompetent.”

Id.

¶26 The only Arizona cases cited by Wasko involved juries

that were not lawfully constituted. In State v. Thompson, the

defendant used peremptory challenges to strike three jurors, but

because of an error by the court clerk, those jurors actually

served on the jury that decided the case. 68 Ariz. 386, 389-91,

206 P.2d. 1037, 1038-40 (1949). The court acknowledged its prior

rulings that a conviction would not be reversed for “mere technical

errors or defects appearing in the record which do not affect the

substantial rights of the accused.” Id. at 390-91, 206 P.2d at

1040. But the court concluded that when a defendant is unlawfully

deprived of the peremptory challenges he exercised, the defendant

is deprived of a substantial right, and the jury that decided the

case was unlawfully constituted. Id. at 391-92, 206 P.2d at 1040.6

Hence, under such circumstances, a defendant is prejudiced because
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“an objectionable juror was forced upon the defendant.” Encinas,

26 Ariz. at 29, 221 P. at 233.

¶27 Huerta relied to a great extent on Wasko in applying the

automatic reversal rule to criminal cases. 175 Ariz. at 265, 855

P.2d at 779. But as discussed above, Wasko principally relied on

a questionable Utah case, which was subsequently overruled in light

of the Supreme Court’s decision in Ross. Consequently, the “long

line of Arizona authority” relied upon by Huerta, 175 Ariz. at 265,

855 P.2d at 779, which was never very lengthy, no longer remains

authoritative.

C.

¶28 In light of these developments, we conclude the curative

use of a peremptory challenge should be subject to harmless error

review. In other words, a defendant in a criminal case must show

prejudice. We base this conclusion on two factors. First, most

trial error, and even most constitutional error, is reviewed for

harmless error. Second, the Arizona Constitution and the Arizona

harmless error statute obligate us to review trial error in

criminal cases under a harmless error standard.

¶29 “[V]irtually any error, under particular circumstances,

can be harmless.” State v. Harrison, 195 Ariz. 1, 6, ¶ 21, 985

P.2d 486, 491 (1999) (McGregor, J., dissenting). As pointed out by

the Wisconsin Supreme Court in Lindell, numerous instances exist in

which constitutional violations are subject to harmless error
7 In contrast, structural errors require automatic reversal.

See, e.g., Arizona v. Fulminante, 499 U.S. 279, 309-10

(1991)(structural errors require reversal not because they

implicate rights abstractly deserving of some greater degree of

protection, but rather because those rights are so bound up with

the reliability of the process that courts irrebuttably presume

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analysis:

Improper comment on the defendant’s failure to testify;

admission of evidence obtained in violation of the Fourth

Amendment; admission of evidence obtained in violation of

an accused’s right to counsel; admission at trial of an

out-of-court statement of a non-testifying codefendant in

violation of the Sixth Amendment’s Confrontation Clause;

admission of evidence at the sentencing stage of a

capital case in violation of the right to counsel;

erroneous use during trial of defendant’s silence

following Miranda warnings; a restriction on a

defendant’s right to cross-examine in violation of the

Sixth Amendment’s Confrontation Clause; denial of the

right to present exculpatory evidence; denial of the

right to be present during a trial proceeding; denial of

an indigent’s right to appointed counsel at a preliminary

hearing; a jury instruction containing an

unconstitutional rebuttable presumption; a jury

instruction containing an unconstitutional conclusive

presumption; an unconstitutionally overbroad jury

instruction in a capital case; the submission of an

invalid aggravating factor to the jury in a capital

sentencing proceeding, and even a misdescription of an

element of the offense.

Lindell, 629 N.W.2d at 249 n.16, ¶ 107 (quoting 5 Wayne R. LaFave,

Criminal Procedure § 27.6(d) (2d ed. 1999)(footnotes omitted)). If

important constitutional errors are subject to harmless error

review, then, logically, a trial court’s erroneous denial of a

challenge for cause and the defendant’s subsequent use of a

peremptory challenge to cure that error should be subject to

harmless error review.7 Cf. Rose v. Clark, 478 U.S. 570, 579
their violation had an effect on the outcome). Such errors affect

the “framework within which the trial proceeds, rather than simply

an error in the trial process itself.” Id. at 310. A defendant’s

use of a peremptory challenge to cure a trial court’s erroneous

denial of a challenge for cause is an error in the trial process,

and not an error affecting the framework of how a trial proceeds.

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(1986) (“[I]f the defendant had counsel and was tried by an

impartial adjudicator, there is a strong presumption that any other

errors that may have occurred are subject to harmless-error

analysis.”).

¶30 Whether a particular error is amenable to harmless error

analysis depends upon “two distinct, though related, principles:

(1) is the error the kind of error that will likely affect the

reliability of the truth-finding process; and (2) is the truth

finding impact of the error incapable of rational assessment?”

Pizzi & Hoffman, supra at 1424-25. Curative use of a peremptory

challenge helps ensure the reliability of the truth-finding

function by excluding biased jurors. If there is no effect on

reliability, then it is irrelevant whether the “impact of the error

[is] incapable of rational assessment.” Id.

¶31 The Huerta majority declined to apply harmless error

analysis for two reasons: (1) in most cases a defendant is unable

to show the effect of the judge’s erroneous ruling for cause; and

(2) harmless error analysis would not adequately prevent erroneous

rulings for cause. 175 Ariz. at 266, 855 P.2d at 780. Neither

reason withstands scrutiny. First, when a defendant secures an
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impartial jury, even through the curative use of a peremptory

challenge, a conviction by that jury will not have prejudiced that

defendant. See, e.g., State v. Entzi, 615 N.W.2d 145, 149, ¶ 10

(N.D. 2000); Fire, 34 P.3d at 1222; Lindell, 629 N.W.2d at 250, ¶

113. Therefore, whether the effect of a trial judge’s erroneous

ruling can be rationally assessed in such circumstances is

immaterial. Second, given the reality of jury selection, there is

no basis to support the belief that an automatic reversal rule has

any direct impact on trial judges’ rulings on challenges for cause.

As pointed out by the Court in Martinez-Salazar, the reality is

that “[t]rial courts, state and federal, rule on cause challenges

by the minute,” 528 U.S. at 310 (quoting United States v. MartinezSalazar, 146 F.3d 653, 661 (9th Cir. 1998) (Ryhmer, J.,

dissenting)), “often [deciding] between shades of gray.” Id. at

316. Given this reality, it seems incongruous that a defendant

should receive a new trial simply because the trial judge made a

mistake that had no impact on the reliability of the jury’s

verdict.

¶32 Arizona’s constitution and harmless error statute also

compel the conclusion that a trial court’s error in failing to

remove a juror for cause, and the defendant’s subsequent use of a

peremptory challenge to remove that juror, should be reviewed for

harmless error. Article 2, Section 24 of our constitution grants

a defendant the right “to have a speedy public trial by an
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impartial jury.” But, as discussed previously, our constitution

also provides that “[n]o cause shall be reversed for technical

error in pleadings or proceedings when upon the whole case it shall

appear that substantial justice has been done.” Ariz. Const. art.

6, § 27. Moreover, Arizona statutory law requires courts to review

error for prejudice. A.R.S. § 13-3987. This statute states that

“[n]either a departure from the form or mode prescribed in respect

to any pleadings or proceedings, nor an error or mistake therein,

shall render the pleadings or proceedings invalid, unless it

actually prejudiced, or tended to prejudice, the defendant in

respect to a substantial right.” Id. Huerta serves neither of

these latter two provisions of our law.

¶33 Additionally, Arizona’s constitution was amended in 1990

to include the Victims’ Bill of Rights. That amendment guarantees,

among other things, a victim’s right to “a speedy trial or

disposition and prompt and final conclusion of the case after the

conviction and sentence.” Ariz. Const. art. 2, § 2.1(A)(10)

(emphasis added). In 1991, the Arizona Legislature adopted the

Victims’ Rights Implementation Act, A.R.S. §§ 13-4401 to -4437,

affording crime victims the “basic rights of respect, protection,

participation and healing of their ordeals.” 1991 Ariz. Sess.

Laws, ch. 229, § 2 (legislative intent). Clearly, the automatic

reversal rule of Huerta thwarts a victim’s constitutional and

statutory right to a speedy resolution and finality.
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¶34 Nevertheless, the Huerta majority believed that “[t]he

prejudice of having one less peremptory challenge than the other

side is enough to mandate reversal.” 175 Ariz. at 267, 855 P.2d at

781. This belief flowed from the supposition that “[t]he adversary

system demands a level playing field to work properly.” Id. at

266, 855 P.2d at 780. But given the reality of a trial court’s

rulings on challenges for cause, which are made by the minute and

are clearly discretionary, the automatic reversal rule does not

level the playing field. Instead, it tilts the field in favor of

the defendant. To illustrate, consider a case in which a trial

judge erroneously denies two challenges for cause, one requested by

the State, the other, by the defendant. Assuming both parties use

a peremptory challenge to remove the objectionable jurors, each

party will have exercised one less peremptory challenge than

provided for by Rule 18.4(c) of the Arizona Rules of Criminal

Procedure. Although the parties exercised an equal number of

peremptory challenges on jurors who were otherwise fair and

impartial, under Huerta, the defendant would automatically receive

a new trial.

¶35 Such a rule forces trial courts to retry cases previously

decided by fair juries. It is costly to the victims and to the

judicial system, and it generates public cynicism and disrespect

for the judicial system.
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¶36 This case exemplifies the unnecessary cost to the system

the Huerta rule creates. Other than the issue we address here,

Hickman raised three additional issues that the court of appeals

found to be without merit. Moreover, Hickman admitted to

investigators that he had images of child pornography on his

computer at work, his home computer, and on computer diskettes he

had at home. A new trial would be an exercise of form over

substance; a new jury will reach the same result as the first. The

point of harmless error review is to avoid such incongruous

consequences.

IV.

¶37 Respect for precedent demands “that we not lightly

overrule precedent and we do so only for compelling reasons.”

Lowing v. Allstate Ins. Co., 176 Ariz. 101, 107, 859 P.2d 724, 730

(1993). Stare decisis is a doctrine of persuasion, not a rigid

requirement, but “any departure from the doctrine of stare decisis

demands special justification.” Arizona v. Rumsey, 467 U.S. 203,

212 (1984). While the phrase “special justification” defies simple

definition, it does require more than that a prior case was wrongly

decided. Hubbard v. United States, 514 U.S. 695, 716 (1995)

(Scalia, J., concurring).

¶38 The ease with which courts have abandoned precedent

corresponds to the subject matter of the case at issue. Cases may
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be divided into three general categories: (1) statutory

interpretation; (2) constitutional interpretation; and (3) rules

created by the courts, such as procedural or evidentiary rules.

See Payne v. Tennessee, 501 U.S. 808, 828 (1991). When a court

proposes to abandon precedent in a case involving court-created

rules, the burden of proof is lowest; in cases involving statutory

interpretation the burden is highest. Id.; Hedlund v. Sheldon, 173

Ariz. 143, 144, 840 P.2d 1008, 1009 (1992). Court rules are

expected to change with the times, and modifying them does not

require as strong a showing as modifying substantive law. Hedlund,

173 Ariz. at 144, 840 P.2d at 1009.

¶39 We conclude that sufficiently compelling reasons exist

for overruling Huerta. First, the Huerta rule is a creation of

this court. Thus, the showing necessary to overrule it is not as

strong as it would be for overruling a prior decision interpreting

a statute. Id. Second, the rule created by Huerta is not the type

of rule that generates reliance by participants in the criminal

justice system. Rather it is a rule of fortuity. A trial judge

may or may not err when ruling on a challenge for cause. Because

a trial judge has the best opportunity to assess whether a juror

can be fair and impartial, appellate courts review such decisions

only for abuse of discretion. State v. Hoskins, 199 Ariz. 127,

139, ¶ 37, 14 P.3d 997, 1009 (2000). Given these circumstances,

Huerta’s automatic reversal rule necessarily does not compel
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reliance upon it. The Huerta rule is therefore unlike the

sentencing rule discussed in State v. Lara, upon which “hundreds,

if not thousands,” of prior cases had relied. 171 Ariz. 282, 285,

830 P.2d 803, 806 (1992). Overruling Huerta rule will not cause an

upheaval in criminal jurisprudence.

¶40 Third, Martinez-Salazar clarified that peremptory

challenges have an “auxiliary” role with respect to the Sixth

Amendment right to a fair trial. Accordingly, as most

jurisdictions have decided, the auxiliary right of a peremptory

challenge should not be accorded the same weight as the

constitutional right to a fair and impartial jury, which is the

effect of the Huerta rule. See, e.g., Lindell, 629 N.W.2d at 250,

¶ 108 (concluding automatic reversal rule with respect to the

curative use of a peremptory challenge places this “‘right’ on a

pedestal above others, and it is not worthy to be there”).

Finally, as the South Dakota Supreme Court held, there is no

principled basis for interpreting a court rule governing peremptory

challenges more broadly than a federal constitutional right, “be it

due process or Sixth Amendment trial rights.” Verhoef, 627 N.W.2d

at 441.

V.

¶41 The jury that decided Hickman’s case was fair and

impartial, and the record does not reflect that he exhausted his
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peremptory challenges. As a result, an objectionable juror was not

forced upon him. Therefore, we vacate that part of the court of

appeals decision that reversed based on Huerta. Because the court

of appeals found no other error, Hickman’s convictions and

sentences are affirmed.

Michael D. Ryan, Justice

CONCURRING:

____________________________________

Ruth V. McGregor, Vice Chief Justice

____________________________________

Rebecca White Berch, Justice

J O N E S, Chief Justice, specially concurring:

¶42 I write specially because of my past adherence to the

rule in State v. Huerta, 175 Ariz. 262, 855 P.2d 776 (1993). The

automatic reversal required by Huerta has been followed by this

court since 1993. The rule had certain “bright line” attraction

that gave trial judges clear direction. But it has been a rigid

rule, allowing virtually no latitude for non-prejudicial error in
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jury selection and requiring retrial even in cases where the jury,

as ultimately empaneled, meets the constitutional standard of

impartiality and where substantial justice has nevertheless been

served. The practice imposed an unnecessary strain on judicial

resources. Yet, when Huerta was decided, it occurred to me that

the rule would assure closer adherence to prerequisite

constitutional standards.

¶43 In contrast, it is also true that courts among the

several states have not been united on this question. Some have

followed the rule of automatic reversal; others have not. More

recently, the United States Supreme Court issued its opinion in

United States v. Martinez-Salazar, 528 U.S. 304 (2000). The

discussion and analysis of that case in today’s principal opinion

is adequate and need not be repeated here. Suffice it to say

Martinez-Salazar appears sound as a jurisprudential matter in that

reviewing courts need simply be satisfied that each petit jury

meets the constitutional standard of impartiality, even where the

defendant has exercised a peremptory challenge to correct the trial

judge’s erroneous refusal to dismiss a potential juror for cause.

¶44 Constitutional language guaranteeing the right to trial

by an impartial jury is identical in both the federal and state

constitutions. I see no reason to expand the right in state

matters under the Arizona Constitution. It is acknowledged that
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Martinez-Salazar does not answer all questions relating to the use

of peremptory challenges where the judge erroneously refuses to

strike for cause. Notwithstanding, the Supreme Court emphatically

eschews the automatic reversal rule which this court adopted in

Huerta. For these reasons, consistent with the rationale set forth

in today’s opinion, I join that opinion.

Charles E. Jones, Chief Justice

NOTE: Justice Stanley G. Feldman sat for oral argument but retired

prior to the filing of the opinion and therefore did not

participate in the opinion.