State v. Jimenez, No. 2 CA-CR 2022-0062 (App. Div. II, July 13, 2023) (J. Eckerstrom) https://www.appeals2.az.gov/decisions/CR20220062memo.pdf

TRIAL COURT IS GIVEN GREAT DEFFERNCE IN DECIDING MOTIONS TO STRIKE FOR CAUSE AND ON CLOSE QUESTIONS THE APPELLATE COURT SHOULD DEFER

Defendant was convicted and sentenced of sexual abuse of his nine year old niece over an eighteen month period.  He appeals arguing his motion to strike a particular juror for cause was improperly denied and that the court erred in conditioning his putting on expert testimony of his “sexual normalcy” on the State being permitted to put on expert rebuttal testimony.  The Arizona Court of Appeals affirmed.

Juror 8 was a retired Federal Bureau of Investigation [FBI] agent who for the final third of his career worked on a team that did surveillance on suspected pedophiles as they interacted with children. A substantial portion of his career involved investigating cases just like this one.

In voir dire Juror 8 said although he had special training in interrogating suspects and evaluating credibility and particularly  lying, he could evaluate witnesses at trial without employing those techniques. “I won't be saying anything, so yes.” When asked if he thought the defendant was a pedophile he responded, “I have no idea” and repeatedly stated he could be fair and impartial. He further stated he would not give special “deference or skepticism to law enforcement witnesses” and he understood the burden of proof.  He stated he had worked on a number of cases where he concluded the suspect “was not guilty” and that he could find defendant not guilty even though he had never arrested a suspect who was later acquitted.  Defendant's motion to strike this prospective juror was denied.

The trial court having the unique ability to observe and question prospective jurors has very broad discretion in exercising strikes for cause and on close questions like this, the appellate court should defer to the trial judge. The elimination of peremptory challenges does not change this rule.

Finally, there was no error in the trial court's ruling that should the defendant put on expert testimony regarding his “sexual normalcy” the State would be permitted to put on rebuttal testimony from its own expert who had interviewed the defendant as a basis for his opinions.