State v. Puga

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ROBERT MICHAEL PUGA, Appellant.

No. 1 CA-CR 23-0162
FILED 01-28-2025

Appeal from the Superior Court in Coconino County
No. S0300CR202000036
The Honorable Stacy Lynn Krueger, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Coconino County Legal Defender’s Office, Flagstaff
By Joseph Carver
Counsel for Appellant

STATE v. PUGA
Opinion of the Court

OPINION

Judge Jennifer M. Perkins delivered the opinion of the Court, in which
Judge David D. Weinzweig joined. Presiding Judge Andrew M. Jacobs
specially concurred in part and dissented in part.

P E R K I N S, Judge:

¶1 We confront here the superior court’s handling of for-cause
juror strikes in the wake of the Arizona Supreme Court’s abolition of
peremptory challenges, and its related revisions to Rules of Criminal
Procedure 18.4 and 18.5. Robert Puga appeals his conviction for sexual
assault, arguing the court erred by not striking prospective jurors for cause
and by considering a statement at sentencing made by a victim of a prior
offense committed by Puga.

¶2 We affirm Puga’s conviction and sentence because (1) the
court complied with the revised rules when questioning prospective jurors;
(2) there was no reasonable basis to believe either challenged juror could
not render a fair and impartial verdict; and (3) the court did not err by
considering a statement from one of Puga’s prior victims at sentencing.

FACTS AND PROCEDURAL HISTORY

¶3 In the fall of 2019, Michelle (a pseudonym) met Puga and
went on a few dates before she concluded they would be better off as
friends. This upset Puga. About a month later, Michelle encountered Puga
at a bar while celebrating New Year’s Eve with her friends in Williams.
Puga bought her a drink. Michelle left the bar and returned to her friends’
house to sleep on the couch. Puga followed Michelle. He entered the
friends’ house and placed his penis on Michelle’s mouth as she slept. The
State charged Puga with one count of sexual assault.

¶4 The court and counsel repeatedly expressed concern during
jury selection about empaneling a jury from the relatively low number of
prospective jurors on hand.

¶5 During voir dire, the court asked all potential jurors to raise a
hand if anything about the nature of the allegations would make it difficult
for them to render a fair and impartial verdict. No juror raised a hand. The

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Opinion of the Court

court also asked whether the prospective jurors had experienced anything
like the facts of this case that might affect them. Jurors 6 and 10 disclosed
that they were sexual assault victims.

¶6 Juror 6 privately told the court she had experienced
something “similar” to the sexual assault in this case when she was a child.
When the court asked Juror 6 to “provid[e] a little more information to us
about what happened,” Juror 6 explained that, when she was nine, over 60
years ago, a caregiver exposed himself to her and tried to place her hands
on his body while she pretended to be asleep. No charges followed, but the
caregiver was “asked to leave town. That’s the way things were done then,
you know.” Juror 6 then offered, “[s]o I don’t know, you know, how that
would affect me, but you just don’t—you don’t know.”

¶7 After expressing appreciation for Juror 6’s candor, the court
stated, “I’ll ask you a question, and if the answer is the same, that’s perfectly
fine. We just want you to be as honest as you can.” The court then asked,
“[w]ould you be able to set aside that personal experience and not let that
impact you?” Juror 6 responded, “I think I might, yeah.” Searching for
clarity, the court told Juror 6 that “mights and maybes are difficult for us.
We need to have a little bit --.” Interrupting the court, Juror 6 interjected:
“Yeah. Yeah. I feel pretty confident, yeah, that I would be able to be okay
with that. Yeah. Like I said that was a long time ago and . . . it was handled
well by my parents and those involved.”

¶8 The parties also questioned Juror 6. The State asked whether
her childhood experience differed from the alleged offense given that
Puga’s case concerned adults, not children and child abuse. Juror 6 agreed,
“[r]ight. Makes a difference.” Juror 6 clarified that she felt “a hundred
percent” that she could decide the case based on the facts and instructions
of the court. Juror 6 told defense counsel she did not “think” her childhood
experience would affect her. And when defense counsel asked Juror 6 to
clarify, she again denied that her experience would “affect her opinion” in
the trial or lead her to favor either side.

¶9 Defense counsel moved to strike Juror 6 for cause. He
described Juror 6 as “moved to tears when she was talking about her
incident.” The court responded, “I didn’t see any crying at all.” The lead
prosecutor agreed Juror 6 did not cry, and the State’s co-counsel averred
that “[a]ll I saw was her eyes get more glassy, but I didn’t see any tears.”
Having watched the proceedings, the court described Juror 6’s emotional
response as “slight,” acknowledging “a slight change in her tone of voice.”

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Opinion of the Court

¶10 The court found that Juror 6’s continued assurances of
fairness and impartiality clarified any ambiguity in her prior answers, so
the court denied the motion to strike her for cause and seated her.

¶11 Juror 10 privately told the court she had been sexually
assaulted 20 years ago, but nobody had been arrested or tried for the crime.
She attended therapy, did not blame law enforcement, and did not believe
the experience would affect her ability to be impartial. Juror 10 added that
“a jury of your peers includes people that have been sexually assaulted.”
When defense counsel asked Juror 10 whether she felt she could be
impartial, Juror 10 responded, “I do. Yeah.”

¶12 Defense counsel moved to strike Juror 10 for cause, arguing
that Juror 10’s similar experience would cause her to sympathize with the
victim. The court noted Juror 10’s demeanor did not suggest any strong
emotional response to the questions or in her answers. Finding “no
indication that there is a basis to strike for cause,” the court seated Juror 10.

¶13 Over a three-day trial, Puga argued he did not engage in
willing behavior that could be punished criminally. He claimed to suffer
from sexsomnia, a rare disorder of engaging in sexual activity while
sleeping. To refute Puga’s claim, the State introduced evidence that Puga
previously engaged in unconsented sex with another sleeping female in
2008. See Ariz. R. Evid. 404(c). The jury convicted Puga of one count of
sexual assault with two enhancing circumstances.

¶14 At sentencing, the State introduced, and the court admitted,
Puga’s five prior felony convictions, including the 2008 conviction for
attempted kidnapping with a sexual motive of Jamie (a pseudonym). The
court considered the presentence report, including a victim impact
statement from Michelle, a supplemental presentence report, and a
statement from Puga. Both Michelle and Jamie offered oral statements.

¶15 The court found Puga “pose[d] a risk to the community” and
aggravation significantly outweighed mitigation. As aggravating factors,
the court found: (1) emotional harm to the victim; and (2) Puga’s prior
felony convictions, including the 2008 offense involving Jamie. The court
found that Puga caused significant emotional harm to Michelle and gave
great weight to this factor. It also gave weight, despite its age, to the 2008
conviction because the offense was “of a similar nature.”

¶16 As mitigating factors, the court found Puga’s employment
and family and community support. The court noted Puga committed this
offense, and other felony offenses, while on community supervision or

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shortly after release from prison. The court sentenced Puga to 22 years in
prison.

¶17 Puga timely appealed. We have jurisdiction. See Ariz. Const.
art. VI, § 9 and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

DISCUSSION

¶18 On appeal, Puga argues the superior court should have struck
Juror 6 and Juror 10 for cause. Puga also argues the superior court should
not have considered Jamie’s victim impact statement at sentencing.

I. Juror 6

¶19 Puga insists the superior court erred in failing to strike Juror
6 for cause because there were reasonable grounds to believe Juror 6 could
not be fair and impartial when “[b]alancing Juror 6’s experiences, initial
comments, apparent reaction to questioning, and the manner in which the
assurances were obtained.” But that conflates two distinct issues: first,
whether the court’s questioning was improper, and second, whether the
court erred when it denied his motion to strike Juror 6.

A. Questioning of Juror 6

¶20 “When a defendant fails to object to trial error, he forfeits
appellate relief absent a showing of fundamental error.” State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018). Thus, if the court strays into leading questions
or otherwise runs afoul of the guidance in Rule 18.5(f) and its comment,
defense counsel must object in real time. Ariz. R. Evid. 103(a); see also Ariz.
R. Evid. 1101(b) (Arizona Rules of Evidence “apply generally to criminal
cases and proceedings.”). Because Puga did not object in real time to the
court’s questioning of Juror 6, we review only for fundamental error. See
Escalante, 245 Ariz. at 138, ¶ 1.

¶21 In a post-peremptory world, we must account for the
different roles of court and counsel. The superior court oversees jury
selection and it must “conduct a thorough oral examination of the
prospective jurors and control the voir dire examination.” Ariz. R. Crim. P.
18.5(f). That thorough oral examination includes, “when feasible . . .
permit[ting] liberal and comprehensive examination by the parties.” 2022
Comment to Rule 18.5(f). As part of a “comprehensive examination,” the
court should ask open-ended, non-leading questions to “elicit [relevant]
information from the subject juror.” State v. Colorado, 256 Ariz. 97, 102, ¶ 21
(App. 2023).

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¶22 Our supreme court advised that courts should not pursue
rote, unequivocal assurances of impartiality to rehabilitate prospective
jurors. 2022 Comment to Rule 18.5(f). But when a prospective juror gives
unclear or qualified answers on impartiality, Rule 18.5 authorizes the court
to clarify the answers. The court should exercise caution when clarifying.

¶23 Puga and the dissent contend that the court improperly
rehabilitated Juror 6 using leading questions. A leading question suggests
the desired answer: “The cat was black, wasn’t it?” State v. McKinney, 185
Ariz. 567, 575 (1996). Unlike that question, the court asked Juror 6: (1) to
“tell us a little more about what happened to you as a child”; (2) “I’ll ask
you a question, and if the answer is the same, that’s perfectly fine. We just
want you to be as honest as you can . . . Would you be able to set aside that
experience and not let that impact you?”; and (3) “[a]nd not to keep
following up on that, but mights and maybes are difficult for us. We need
to have a little bit –- [interrupted by Juror 6].” None of these questions
suggest the desired answer. Each is appropriate under Rule 18.5(f).

¶24 The court’s open-ended questions sought to clarify, not to
rehabilitate. “Rehabilitation” occurs when the court tries to remedy a juror’s
“preconceived notions or opinions about a case.” State v. Martinez, 196 Ariz.
451, 459, ¶ 28 (2000); State v. Acuna Valenzuela, 245 Ariz. 197, 209, ¶ 24 (2018).
Juror 6 gave equivocal or qualified answers to the court’s yes-or-no
questions: (1) “I don’t know, you know, how that will affect me”; and (2) “I
think I might, yeah.” Those answers do not demonstrate preconceived
notions or opinions about the case; if anything, they demonstrate a lack
thereof. The court did not ask Juror 6 to change her mind; it merely asked
her to give a clear answer. The court did not violate Rule 18.5 in questioning
Juror 6.

¶25 Puga also takes issue with the State’s questioning of Juror 6,
citing Rule 18.5(f). But Rule 18.5(f) guides the court in its questioning, not
the parties. And, as noted, the court did not err in its questioning of Juror 6.
Because the court did not err, we need not assess prejudice. Escalante, 245
Ariz. at 140, ¶ 12 (we reverse for fundamental error only when there is both
fundamental error and prejudice from that error).

B. Challenge of Juror 6 for cause

¶26 Puga argues that the superior court should have struck Juror
6 for cause. We review the court’s ruling on a motion to strike a prospective
juror for an abuse of discretion. State v. Allen, 253 Ariz. 306, 330, ¶ 41 (2022).

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Opinion of the Court

¶27 The superior court must “consider the totality of a prospective
juror’s conduct and answers given during voir dire,” and must excuse a
prospective juror if “there is a reasonable ground to believe that the juror
. . . cannot render a fair and impartial verdict.” Ariz. R. Crim. P. 18.4(b),
18.5(h). “The party challenging a juror for cause has the burden to establish
by a preponderance of the evidence that the juror cannot render a fair and
impartial verdict.” Ariz. R. Crim. P. 18.5(h). The court need not strike a juror
for cause “simply because [s]he was the victim of a crime similar to one
with which the defendant is charged.” State v. Rose, 121 Ariz. 131, 140 (1978);
see also Colorado, 256 Ariz. at 102, ¶ 22. “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.” Colorado, 256 Ariz. at 102, ¶ 22. The superior court
“observ[ed] and assess[ed] the juror personally,” and we defer to its
credibility findings. Id. ¶ 23. Because of this deference, we question only
whether the record supports the court’s findings. Allen, 253 Ariz. at 331, ¶
47.

¶28 Puga is correct that we cannot say what “level of emotional
response” necessitates a strike for cause. Longstanding precedent, affirmed
by this Court after the abolition of peremptory strikes, requires us to defer
to the superior court’s credibility determinations when ruling on motions
to strike. Colorado, 256 Ariz. at 102–03, ¶ 23. Only the superior court is
positioned to observe the potential juror, weigh her experiences, answers,
and demeanor, and determine whether there is a reasonable ground to
believe she cannot render a fair and impartial verdict. Id.

¶29 Against that backdrop, Puga asks us to reweigh the superior
court’s assessment of Juror 6’s demeanor and assurances of impartiality.
Puga argues that courts should give more weight to a juror’s “background
and experience” than her demeanor and self-assessments of bias.

¶30 After some debate between the superior court and the parties
about Juror 6’s emotional state during questioning, the court found Juror 6
exhibited “a slight emotional response,” along with “a slight change in her
tone of voice.” The question for the superior court was whether Juror 6’s
slight emotional response presented a reasonable ground to believe she
could not render a fair and impartial verdict given her verbal assurances.

¶31 The superior court did not abuse its discretion. The record
contains no evidence that Juror 6 would be unable to render a fair and
impartial verdict. It showed only that Juror 6 was the victim in a similar
incident. But Juror 6 continually affirmed that she did not think her past

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experience would affect her current ability to render a fair and impartial
verdict. She maintained this position throughout questioning by the court
and by both parties. The superior court found that Juror 6 “clarified
sufficiently and clearly that she can be fair and impartial and that her prior
experience would not impact her.” The record contains reasonable evidence
in support. Juror 6 left no reason for the court to question her personal
assurance of serving fairly and impartially. See Colorado, 256 Ariz. at 103, ¶
28. Because we cannot discern, from mere lines of transcript, the indicia of
bias of a prospective juror which could lead us to a different conclusion, we
must defer to the court’s findings. See id. at 102, ¶ 23.

¶32 The dissent worries that our deference functionally bars
appellate review of superior court voir dire. Not so. We affirm because our
review of the record does not lead us to conclude Juror 6 was biased, and
we defer to the superior court’s credibility determination reaching the same
conclusion. The dissent’s review of the record leads it to a different
conclusion. But that is why we defer to the superior court’s findings when
the record supports them. Allen, 253 Ariz. at 331, ¶ 47. Our function is not
to re-do the superior court’s work when we lack the benefit of observing
and speaking to a prospective juror. Rather, we serve to ensure the superior
court’s decisions are supported by the record, as they were here.

¶33 The same principle addresses the dissent’s comparison of the
superior court’s treatment of prospective juror L.B. with that of Juror 6.
“Trial courts observe and assess the juror personally, while we only read a
record.” Colorado, 256 Ariz. at 102, ¶ 23. Our review of a cold transcript does
not allow us to look a prospective juror in the eye or hear her tones of voice.
The superior court, after assessing what it could see and what it could hear,
determined that L.B. could not serve but believed Juror 6’s unambiguous
affirmation of impartiality. The record supports both decisions.

¶34 The court did not abuse its discretion in denying Puga’s
motion to strike Juror 6.

II. Juror 10

¶35 Puga challenges the court’s ruling on Puga’s motion to strike
Juror 10 for cause, which we review for an abuse of discretion. Allen, 253
Ariz. at 330, ¶ 41. Puga again asserts that a juror’s demeanor and her
assurances of impartiality are not “reliable indicators of bias,” so the court
should give more weight to a juror’s experiences and background. Through
this lens, he argues that Juror 10’s assault experience was so similar to the
facts of this case that she could not render a fair and impartial verdict,

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despite her stated assurances of impartiality and lack of a “strong emotional
response.”

¶36 The record had no evidence that Juror 10 would be unable to
render a fair and impartial verdict. It showed only that Juror 10 was the
victim in a similar incident. Like Juror 6, Juror 10 repeatedly and
unequivocally affirmed that she believed she could be fair and impartial
despite her similar experience. And the record reflects that the court
analyzed the totality of Juror 10’s conduct in accordance with Rule 18.5(h)
when denying the motion to strike.

¶37 Puga contends that a victim’s past experience should
automatically disqualify a prospective juror. Not so. Arizona law prevents
crime victims from being disqualified as potential jurors based on their
crime-victim status alone. See Rose, 121 Ariz. at 140. This principle remains
intact after the abolition of peremptory challenges. See Colorado, 256 Ariz. at
103, ¶¶ 24–29 (holding that it was not an abuse of discretion to empanel a
juror who had experienced domestic violence in a domestic violence
murder case). Other than Juror 10’s status as a victim of a similar crime,
Puga points to nothing in the record—and we can identify nothing—
undermining the court’s finding that Juror 10 could render a fair and
impartial verdict.

¶38 The court did not abuse its discretion in denying Puga’s
motion to strike Juror 10.

III. Sentencing

¶39 Puga argues the superior court erred by considering Jamie’s
victim impact statement during sentencing. Noting that Jamie was a victim
of a prior felony for which Puga has completed the terms of his sentence,
he argues that Jamie did not have a right to speak at sentencing. Puga
contends that consideration of her statement violated his right to due
process because it was not relevant to any aggravating factor and exposed
him to “double punishment” for his prior felony. Because Puga did not
object to Jamie’s statement at sentencing, we review the court’s decision to
consider that statement for fundamental error. Escalante, 245 Ariz. at 140, ¶
12.

¶40 Section 13-4426(A) affirmatively allows the victim of the
crime charged to speak at sentencing. And it does not explicitly prohibit
victims of prior crimes from speaking at sentencing for new crimes
perpetrated by the same defendant.

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Opinion of the Court

¶41 The superior court did not violate Puga’s right to due process
by considering Jamie’s statement. In fact, the sentencing code compelled the
superior court to consider felony convictions less than ten years old as an
aggravating circumstance. A.R.S. § 13-701(D)(11); State v. Romero, 173 Ariz.
242, 243 (App. 1992) (“We take the statute to mean the court must consider
convictions that are less than ten years old.”). Although Puga’s felony
conviction for his crime against Jamie was twelve years old, “the sentencing
statute does not preclude the use of an older felony conviction in
aggravation.” State v. Calderon, 171 Ariz. 12, 14 (App. 1991).

¶42 Moreover, Jamie’s statement was relevant during sentencing.
Rule 26.7(b)(2) permits any party to “introduce any reliable, relevant
evidence, including hearsay, to show aggravating or mitigating
circumstances” at the presentencing hearing. Section 13-701(D)(27) permits
the superior court to consider “[a]ny other factor that the state alleges is
relevant to the defendant’s character or background or to the nature or
circumstances of the crime.” Puga argues Section 13-701(D)(27) relates only
to “the crime for which the court is imposing sentence.” But “[t]he trial
court should consider not only the offenses charged, but also the past
conduct and moral character of the defendant so that the punishment may
fit both the offense and the offender.” State v. LeMaster, 137 Ariz. 159, 165
(App. 1983). And “it is appropriate for the trial court to consider the
objectives of sentencing, namely, retribution, restraint, deterrence and
rehabilitation.” Id. Here, Jamie’s statement was relevant because it helped
explain the circumstances of Puga’s 2008 conviction and it informed the
“restraint, deterrence and rehabilitation” objectives of sentencing.

¶43 The court did not violate Puga’s due process rights, and it was
within its prerogative to consider Jamie’s statement.

CONCLUSION

¶44 We affirm Puga’s conviction and sentence.

J A C O B S, J., specially concurring in part and dissenting in part:

¶45 This appeal concerns how for-cause strikes work after the
Arizona Supreme Court’s abolition of peremptory challenges. While
abolishing peremptory strikes, our supreme court changed our voir dire
procedures. Ariz. R. Crim. P. 18.4, 18.5. Defendant Robert Puga appeals
his conviction for sexual assault, arguing the superior court erred by not
striking either of two prospective jurors for cause. I concur with my

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STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
colleagues that there was no reasonable ground to believe Juror 10 could
not render a fair and impartial verdict. But because voir dire showed there
was a reasonable ground to believe Juror 6 could not render a fair and
impartial verdict, the superior court was required to excuse her from
service under Arizona Rule of Criminal Procedure 18.4(b). I therefore
respectfully dissent in part and would reverse Puga’s conviction and
remand for a new trial. Because a conviction in a new trial would require a
resentencing, this dissent does not address the due process issue Puga
raises concerning his sentencing.

FACTS AND PROCEDURAL HISTORY

A. The Court and the Parties Conducted Voir Dire Mindful of
an Approaching Snowstorm and the Low Number of
Prospective Jurors on Hand.

¶46 During voir dire, the court and counsel repeatedly expressed
concern about empaneling a jury from the relatively low number of
prospective jurors on hand, given the hardship imposed on many by a
coming storm. Thus, when the defense asked early in the voir dire that one
juror be excused for cause or hardship, the court responded that “I am very
mindful of the fact that we have 29 [prospective jurors] total. We’re in the
middle of a big storm coming. And unless it’s absolutely clear from the
questioning that someone is not available, I’m not inclined to strike them
until there is some follow-up question that makes that clear.” The court
added, “[s]o we will hold off, then, on striking [a prospective juror] – or
excusing her for hardship at this time.” Counsel for the State echoed this
concern after more jurors were excused, stating of voir dire, “I’m being a
little more conservative now because I see that we could be in trouble with
the number of jurors.”

¶47 As part of voir dire, the court asked all potential jurors
whether they had experienced anything like the facts of this case that might
impact them. Based on what it learned, the court conducted voir dire of
five prospective jurors about sexual assault outside the presence of other
prospective jurors. Two, Juror 6 and Juror 10, were sexual assault victims.
Three others, Juror 9, and prospective jurors LB and DV, were people who
knew or were related to persons who experienced, or claimed to have
experienced, sexual assault. The court excused for cause two of the three
who were not sexual assault victims. It empaneled Juror 6 and Juror 10,
who were sexual assault victims, as well as Juror 9, who had two family
members who were sexual assault victims. The court examined the jurors
in the following sequence.

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STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
B. The Court Strikes Two Jurors For Cause After Examination
About Sexual Assault Issues, but Not Three Others,
Including Juror 6.

1. Voir Dire of Juror 10, Not Excused

¶48 Juror 10 asked to speak privately with the court and counsel
and revealed she had been sexually assaulted 20 years ago. Juror 10 stated
she had gone to therapy and did not believe the experience would affect her
ability to be impartial. Juror 10 stated she believed “a jury of your peers
includes people that have been sexually assaulted.” Juror 10 explained
there was no criminal case that resulted from her experience, and that she
did not blame the authorities. When defense counsel asked her if she felt
she could be impartial, Juror 10 responded affirmatively.

¶49 Defense counsel moved to strike Juror 10 for cause, arguing
her experience was like the alleged incident and suggesting Juror 10 might
thus identify with the victim in this case. The State countered that Juror 10
repeatedly expressed she could be fair, arguing “if they come in and say, I
can be fair and impartial, I’m going to judge the matter neutrally, then I
think we’re good to go.” The court noted Juror 10’s demeanor did not
suggest any strong emotional response to the questions or her answers. The
court explained that Juror 10’s sexual assault occurred 20 years ago and that
she received therapy. Relying on Juror 10’s averrals of impartiality, the
court found “no indication that there is a basis to strike for cause” and
seated her.

2. Voir Dire of Prospective Juror DV, Stricken For
Cause

¶50 Prospective Juror DV explained that his daughter, while in
high school, had a friend she was not dating attempt to reach down the
front of her pants. DV’s daughter was able to stop the incident. It was not
captured by school surveillance cameras, leading the family not to pursue
the matter further. The court asked “can you feel that impacting you in any
way with this case and the allegations?” DV said he “would like to say no,”
but explained it was his child and he “wouldn’t want that to happen to
anyone else’s child.” The court then asked if DV would “be able to set that
aside and just listen to the testimony and the evidence in this case and judge
that fairly and impartially without having what happened to your daughter
influence your opinion of any of that testimony?” DV agreed: “I would say
yes,” explaining why with reference to his life experience.

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STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
¶51 The State’s lawyer pushed DV further. He asked whether DV
could “evaluate every witness’s testimony fairly.” Again, DV answered
unequivocally – “I believe so.” The State’s lawyer then asked DV again if
he would be fair and impartial, this time asking him for a perfect assurance
of the correctness of his answer:

But we’ve just got to make sure. Like this is one where we
can’t be like 99 percent. We’ve got to be a hundred percent
sure out of interest for the fairness of the proceedings. We got
to make sure that you can set aside what happened to your
daughter and judge this case fairly and impartially, thinking,
for example, of like who you’d want on the jury if you stood
accused of such a crime. All we need to know is can you be
fair and impartial.

¶52 DV broke. “I would like to say yes, but honestly, I’d probably
not be, in all honesty,” he responded. The State requested that DV be struck
for cause. The defense agreed, and the court found good cause, striking
DV.

3. Voir Dire of Juror 9, Not Excused

¶53 Juror 9 explained to the court that there were several
experiences of sexual assault in her family. Her sister, at the age of 6, was
victimized along with others by a teenaged boy who made “them do
things.” That same sister when aged “15ish[] was involved with a 21-year-
old,” resulting in charges and imprisonment of the 21-year-old “for a few
years.” Finally, Juror 9’s brother-in-law was sexually assaulted by his
father, resulting in imprisonment for life. Juror 9’s only involvement with
these situations was catching her sister as a teen with her older boyfriend,
and later, coming to court in the related criminal matter.

¶54 The court’s first and only question was the ultimate one:
“[t]hese experiences of your family members, would that impact or affect
your ability to judge fairly and impartially the evidence in this case?” Juror
9 answered, “[n]o.” In response to the State’s repetition of whether Juror 9
could “set aside those issues . . . and just judge this case fairly and
impartially,” Juror 9 responded, “[h]undred percent.” Juror 9 offered more
averrals of her impartiality and no equivocal statements. No party moved
to strike her for cause. The court seated her.

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STATE v. PUGA
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4. Voir Dire of Prospective Juror LB, Stricken For Cause

¶55 Prospective Juror LB reported that her son’s ex-girlfriend had
been sexually assaulted. The court first asked the ultimate question:
whether that experience of your son’s ex-girlfriend, “would impact your
ability to be fair and impartial at all?” LB answered that she did not think
so. The court asked LB why. LB explained the ex-girlfriend “did a lot of
lies,” and had claimed that while working as a delivery person “she got
assaulted by the person that she was delivering to.” The court asked
whether those allegations would lead LB to favor either party, to which LB
answered “[t]hat I’m not – I’m still not sure because – I’m not sure.”

¶56 Neither party had any follow-up questions. Both agreed LB
should be removed for cause, though the record reflects no explanation as
to why. The court agreed and removed LB for cause.

5. The Court Questioned Juror 6, Likewise a Sexual
Assault Victim, Eliciting Equivocal and Conflicted
Responses About Fairness.

¶57 By the time the court questioned Juror 6, it had excused 6
jurors for cause or hardship (AP, RB, LB, DV, TB, and MB). Juror 6 indicated
in open court she had experienced something “similar” to the sexual assault
in this case and, apologizing, asked to speak to the court about it privately.
In chambers with counsel, Juror 6 revealed that in 1958, when she was nine,
a caregiver exposed himself to her and tried to place her hands on his body.
No charges followed, although Juror 6 explained the caregiver was “asked
to leave town. That’s the way things were done then, you know.”

¶58 Before the court asked follow-up questions, Juror 6
volunteered, “[s]o I don’t know, you know, how that would affect me, but
you just don’t – you don’t know.” The court began its voir dire by asking
“I’ll ask you a question, and if the answer is the same, that’s perfectly fine.
We just want you to be as honest as you can. Would you be able to set aside
that personal experience and not let that impact you?” Juror 6 responded,
“I think I might, yeah.” After that equivocal answer that leaned mildly
toward yes, the court then sought a more definitive answer: “[a]nd not to
keep following up on that, but mights and maybes are difficult for us. We
need to have a little bit –[.]” Juror 6 replied, “[y]eah. Yeah. I feel pretty
confident, yeah, that I would be able to be okay with that. Yeah.” Juror 6
then added that the experience was “a long time ago” and that her parents
“handled [it] well.”

14

STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
¶59 In follow-up questioning, the State’s counsel emphasized the
trial concerned adults, not children. Juror 6 agreed, “[r]ight. Makes a
difference.” The State also asked for certainty, couching the request in
terms of whether the juror would follow the judge’s lead: “we need to
know for sure that you can listen to the evidence in this case and decide the
facts of this case based on the instructions Judge Krueger gives you. We’ve
got to have a hundred percent on that[,] that you can do that here. Do you
feel like you can do that here?” “I do[,]” answered Juror 6. When defense
counsel asked Juror 6 if the prior incident would affect her, Juror 6 replied,
“I don’t think so.” Juror 6 then denied that her experience would “affect
her opinion” in the trial or lead her to favor either side.

¶60 Juror 6 experienced an emotional reaction as she related her
experience of sexual assault. Moving to strike her for cause, defense
counsel averred that “[s]he was moved to tears when she was talking about
her incident,” continuing, “[a]lthough she may have said that she would
remain fair and impartial, her body language and voice and actions here
today show that she would not.” The court stated that it observed no
crying. After the State’s lead counsel agreed Juror 6 did not cry, the State’s
own co-counsel averred that “[a]ll I saw was her eyes get more glassy, but
I didn’t see any tears.”

¶61 After the State’s concession that Juror 6’s eyes moistened, the
court noted Juror 6 “did have a slight emotional response” and there “was
a slight change in her tone of voice” when she described the event. Ruling
on the defense motion to strike Juror 6 for cause, the court summarized
Juror 6’s initial answer incorrectly, stating “[s]he did provide an answer
initially that she might be able to be fair and impartial, that she didn’t think
that this would impact her at all[,]” though Juror 6’s initial answer
concluded “I don’t know, you know, how that would affect me, but you
just don’t – you don’t know.” The court then correctly noted Juror 6’s later
averrals of fairness and impartiality and denied the motion to strike her for
cause.

¶62 The jury that included Juror 6 heard evidence over three days
– February 28, March 2, and March 3, 2023. The jury convicted Puga of one
count of sexual assault with two enhancing circumstances. The court
sentenced Puga to 22 years in prison.

15

STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
DISCUSSION

¶63 Puga argues the court erred by seating Juror 6. He argues
juror experiences – here, Juror 6’s sexual assault – are more important than
demeanor or assurances of impartiality. Separately, he argues the court did
not properly account for Juror 6’s initial, equivocal statement about how
being an assault survivor might affect her and then prompted her to
provide assurances of fairness and impartiality. The State emphasizes the
assurances of fairness the court elicited. The State notes that the court
referred to Juror 6’s demeanor while denying the motion to strike, but other
than urging deference to trial courts, does not offer any analysis or
argument as to how Juror 6’s acknowledged emotional response did not
indicate some bias. Finally, the State argues that the fact of being a sexual
assault victim is not by itself disqualifying.

¶64 We defer to the trial court’s findings of fact, unless they are
clearly erroneous. Shooter v. Farmer, 235 Ariz. 199, 200 ¶ 4 (2014). We review
legal issues, including the interpretation or application of a procedural rule,
de novo. See Voice of Surprise v. Hall, 255 Ariz. 510, 513 ¶ 11 (2023); see also
Angelica R. v. Popko, 253 Ariz. 84, 88 ¶ 10 (App. 2022) (reviewing the court’s
ruling for abuse of discretion but analyzing the interpretation of a
procedural rule de novo). The Opinion is correct that we review for abuse
of discretion whether the court erred in failing to strike a juror for cause.
State v. Allen, 253 Ariz. 306, 330 ¶ 41 (2022). But if there is an abuse of
discretion, we review for harmless error. State v. Montoya, 129 Ariz. Cases
Dig. 7 ¶ 72 (Aug. 15, 2024) (“Because defense counsel objected to [the
empanelment of a juror], we review any error for harmless error.”).

I. With Peremptory Challenges Abolished, the Rules and a New
Comment Direct the Court to Conduct Searching, Open-Ended
Questioning, Focusing on Potential Bias, Rather Than
Rehabilitating Jurors Through Conclusory Questions.

¶65 As before the abolition of peremptory challenges, Arizona
Rule of Criminal Procedure 18.4(b) governs challenges for cause and
requires courts to decide whether “there is a reasonable ground to believe .
. . the juror . . . cannot render a fair and impartial verdict.” Ariz. R. Crim.
P. 18.4(b). This is what the former comment to Rule 18.4(b) called “the
essential question – whether a juror can try a case fairly.” Ariz. R. Crim. P.
18.4(b) cmt. (2021). And, as before the abolition of peremptory challenges,
Arizona Rule of Criminal Procedure 18.5 provides detailed guidance for
how to conduct voir dire of prospective jurors. When voir dire reveals a
“reasonable ground” to believe a juror cannot try a case fairly, “[t]he court,
on motion or on its own, must excuse” that juror. Ariz. R. Crim. P. 18.4(b).

16

STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
¶66 But while much remains the same in Rules 18.4 and 18.5,
much has changed. The Arizona Supreme Court’s repeal of the
longstanding comment to Rule 18.4(b) has removed the litany of narrow-
bore examples of different types of bias that justified striking jurors, many
of which dated back to the Howell Code’s enactment in 1864. Compare
Howell Code, ch. XI, §§ 319, 320, 322 (1864) with Ariz. R. Crim. P. 18.4(b)
cmt. (2021). This leaves the court to focus on the basic, core question of
whether a prospective juror exhibits bias in any way.

¶67 And while it remains true that the court “must conduct a
thorough oral examination of the prospective jurors and control the voir
dire examination[,]” Ariz. R. Crim. P. 18.5(f), the Arizona Supreme Court
has now explained what should happen in that thorough oral examination.
See Ariz. R. Crim. P. 18.5(f) cmt. (2022). With peremptories gone, “the court
should permit liberal and comprehensive examination . . . and use open-
ended questions that elicit prospective jurors’ views narratively.” Id. Our
supreme court has likewise explained what should not happen in voir dire:
“[t]he court should refrain from attempting to rehabilitate prospective
jurors by asking leading, conclusory questions that encourage prospective
jurors to affirm that they can set aside their opinions and neutrally apply
the law.” Id.

¶68 The Arizona Supreme Court’s 2022 amendments to Rule 18.5
also direct our courts not to give undue weight to conclusory affirmations
of impartiality that the comment to Rule 18.5(f) warns courts not to elicit in
the first place. See Ariz. R. Crim. P. 18.5(f) cmt. (2022). Amended Rule
18.5(h) requires a court, in determining whether a juror can render a fair
verdict, to “consider the totality of a prospective juror’s conduct and answers
given during voir dire[,]” thus preventing a court from treating such
affirmations as analysis-ending talismans. Ariz. R. Crim. P. 18.5(h)
(emphasis added).

¶69 The Opinion declines to follow these new rules and their
comment because (1) after the court asked Juror 6 a leading, conclusory
question that signaled she was supposed to aver she could set aside her
bias; (2) and she eventually – after further direction to her that “might”
wasn’t enough – gave the requested assurance that she could set aside her
bias and be fair and impartial; (3) that assurance was “reasonable evidence”
the juror could not be biased, foreclosing any possibility that seating her
was an abuse of discretion. See Opinion ¶¶ 23-24, 29-31, supra.

¶70 It is true we used to say the court need not excuse a juror who
assures the court of her ability to be fair and impartial. See State v. Smith, 182 Ariz. 113, 115 (App. 1995); State v. Reasoner, 154 Ariz. 377, 384 (App.

17

STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
1987). But if the Opinion’s adherence to that maxim holds despite the 2022
amendments and the related comments, then courts remain free to ask
conclusory, leading questions that obtain averrals the 2022 comment to
Rule 18.5(f) suggests are misleading or valueless. According conclusive,
conversation-ending force to the prospective juror’s recitation that they can
set aside their experience and be fair stops us from reviewing the totality of
the record to decide whether there are “reasonable grounds” to believe the
juror could not set aside their bias. But that’s what Rule 18.4(b), Rule
18.5(h), and the comment to Rule 18.5(f) require.

¶71 Applying these recently amended rules and one of their
comments to the totality of the voir dire at issue, I would find empaneling
Juror 6 was error requiring reversal for a new trial, while recognizing that
the court properly empaneled Juror 10.

II. The Court Abused Its Discretion by Empaneling Juror 6, Given the
Court’s Questioning, the Totality of Juror 6’s Conduct and
Answers, the Court’s Mistaken Understanding of What Juror 6
Said, and the Striking of Another Juror For Cause for Less.

A. The Questioning of Juror 6 Was Contrary to the Guidance
in the Comment to Recently-Amended Rule 18.5(f).

¶72 While certainly historically normal and consistent with our
courts’ longstanding voir dire practice, the questioning of Juror 6 did not
follow the guideposts of recently-amended Rule 18.5. The court asked Juror
6 in chambers to give more information about her sexual assault. Juror 6
explained how as a nine-year-old, her caregiver exposed himself to her and
tried to put her hands on his body. Having described her ordeal, Juror 6
then volunteered, unprompted, “[s]o I don’t know, you know, how that
would affect me, but you just don’t – you don’t know.”

¶73 Contrary to the Opinion’s view that it did no such thing, the
court then posed a leading, closed-ended request for an affirmation of
impartiality the comment to Rule 18.5(f) says courts should not use:
“[w]ould you be able to set aside that personal experience and not let that
impact you?” See Ariz. R. Crim. P. 18.5(f) cmt. (2022) (warning that “[t]he
court should refrain from attempting to rehabilitate prospective jurors by
asking leading, conclusory questions that encourage prospective jurors to
affirm that they can set aside their opinions and neutrally apply the

18

STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
law[]”).1 When Juror 6’s response was the clearly equivocal, “I think I
might, yeah,” the court declined to take “might” for an answer. The court
pressed further: “[o]kay. And not to keep following up on that, but mights
and maybes are difficult for us. We need to have a little bit –[.]” Thus
prompted by the court, Juror 6 finally gave an answer less suggestive of
bias, “[y]eah. Yeah. I feel pretty confident, yeah, that I would be able to be
okay with that, yeah.” I agree with the Opinion that a “leading question
suggests the desired answer.” See Opinion ¶ 23, supra. But this colloquy
did “suggest[] the desired answer.” After a mildly positive lean from Juror
6, the court told her “[w]e need” an unequivocal, affirmative response, and
obtained one. That is the opposite of open-ended and non-leading
questioning.

¶74 While the comment to Rule 18.5(f) states, “[w]hen feasible . . .
the court should . . . use open-ended questions that elicit prospective jurors’
views narratively[,]” as the court did with Juror 10, the questioning of Juror
6 was different. The comment warns “[t]he court should refrain from
attempting to rehabilitate prospective jurors by asking leading, conclusory
questions that encourage prospective jurors to affirm that they can set aside
their opinions and neutrally apply the law.” Id. The court did rehabilitate
Juror 6, using questions that were closed-ended, leading, sought certainty,
and asked her to “set aside” her experience. This is the classic script our
trial judges have been encouraged to use for decades, making its use
understandable. Yet it is also one the new rules teach they ought not use.

¶75 Just as the comment to Rule 18.5(f) suggests, the assurance
thus obtained was of dubious value. The State’s follow-up voir dire, which
the court supervises under Rule 18.5(f), was more of the same. The State’s
lead counsel did not engage in open-ended questioning, but asked a closed-
ended question demanding assurances of perfect impartiality, framed in
terms of obeying the judge’s instructions: “we need to know that you can
listen to the evidence in this case and decide the facts of this case based on

1 The Opinion suggests the court moved directly from appreciating candor

and urging honesty to asking “Would you be able to set aside that personal
experience and not let that impact you?” Opinion ¶ 7, supra. Not so. After
complimenting Juror 6’s candor and urging honesty, the court said, “You’re
going to be instructed, of course, that you can only consider the evidence
and the testimony during trial. Would you be able to set aside that personal
experience and not let that impact you?” The context of this question was
the court stating the rule that jurors must obey instructions, and then asking
in that light if she could “set aside that personal experience and not let that
impact [her].”

19

STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
the instructions that Judge Krueger gives you. We’ve got to have a hundred
percent on that[,] that you can do that here. Do you feel like you can do that?”
(Emphasis added). Thus strong-armed, and in contradiction to her prior
equivocation, Juror 6 complied: “I do.” But that ultimate response to this
leading, closed-ended question borders on meaningless. See Ariz. R. Crim.
P. 18.5(f) cmt. (2022).

¶76 The mere fact of using closed-ended questions resulting in
simple confirmations of impartiality does not make the outcome of a voir
dire invalid. If there are no significant reasons to question whether a juror
might be biased, the totality of the record will show there is no reasonable
basis to believe that juror cannot render a fair verdict. See Ariz. R. Crim. P.
18.4(b). When the court or the parties employ other questions in addition
to conclusory ones, the confirmations will form part of “the totality of a
prospective juror’s conduct and answers given during voir dire” the court
will use in assessing a challenge for cause. Ariz. R. Crim. P. 18.5(h). And
when a juror provides information that suggests a lack of bias, whether
through jury questionnaires or other means, the record will support a
decision to empanel them.

¶77 But when courts employ conclusory, leading questions that
affirmatively request and obtain confirmations of impartiality, but the
totality of the record gives some reason to believe the juror cannot render an
impartial verdict, seating that juror is an abuse of the court’s discretion. It is
true that the court’s and the State’s questions eventually led Juror 6 to give
assurances of her impartiality. But that only occurred by asking questions
contrary to the direction of Rule 18.5(f)’s comment that those conclusory
assurances are not entitled to the conversation-stopping force we once
accorded attestations of impartiality. Put another way, the Arizona
Supreme Court didn’t tell courts to stop seeking conclusory attestations
from balky jurors because they were supposed to be the end of the story.
Given the other problems with Juror 6’s impartiality in this record, they
should not have been the end of the story here.

¶78 In its discussion of these issues, the Opinion starts in the right
direction. It correctly agrees that “[o]ur supreme court advised [in the
comment to Rule 18.5(f)] that courts should not pursue rote, unequivocal
assurances of impartiality to rehabilitate prospective jurors.” Opinion ¶ 22,
supra. But then the Opinion veers off-course, suggesting the court’s
examination complied with Rule 18.5 and its comment because the superior
court was engaged in “clarification” that was not “rehabilitation.” Opinion
¶¶ 22-25, supra. That distinction does not hold, and thus offers no path
around Rule 18.5 here.

20

STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
¶79 State v. Fournier makes this point. 256 Ariz. 33, 40 ¶¶ 11-12
(App. 2023), review denied, paragraphs 19-21 depublished on other grounds, ___
Ariz. ___, 543 P.3d 1034 (March 5, 2024). There, we described the superior
court’s requests for clarification that saved a juror’s participation in the jury
as “asking questions to rehabilitate the juror.” Id. at ¶ 12. First, the court
clarified with a juror that prior questioning in the voir dire was “kind of a
trick question.” Id. at ¶ 11. We then wrote that “[t]he court further clarified
the question and asked, [i]f no facts were presented, what other verdict
could you have?” Id. (internal quotations omitted). We were right to
describe this colloquy in Fournier as both clarifying and rehabilitating: to
rehabilitate a witness is to make clear something of substance they must say
that they have not previously said (at least not clearly). Id. at ¶¶ 11-12. And
the Opinion suggests no purpose in the court’s “clarifications” here save
preserving the prospective juror’s participation, as in Fournier. Opinion ¶¶
22-25, supra; see also State v. Payne, 233 Ariz. 484, 498 ¶ 16 (2013) (referring
to Rule 18.5(d)’s language permitting “further oral examination” as
providing an “opportunity to rehabilitate”). The superior court’s
examination of Juror 6 elicited assurances that she could set aside her
feelings after all and be objective, which was rehabilitation.

¶80 If Puga’s appeal was one that objected solely to the court’s
questioning as in violation of Rule 18.5(f) and its comment, I would agree
that we could affirm. But atomizing Puga’s appeal into two questions –
whether Puga preserved objections to the court’s questions of Juror 6, and
separately, whether the court abused its discretion by denying the motion
to strike her for cause, see Opinion ¶¶ 20, 31, supra – ignores the organic
way in which questioning and answers in voir dire are part of the for-cause
challenge Puga made and preserved. This Dissent addresses that
relationship next.

B. The Totality of Juror 6’s Conduct and Answers, Which Rule
18.5(f) Requires Us to Analyze, Shows There Was a
Reasonable Ground to Believe Juror 6 Could Not Render a
Fair Verdict, Making Empaneling Her Error.

¶81 The Opinion argues that we must defer to the superior court’s
credibility determinations because “[o]nly the superior court is positioned
to observe the juror, weigh her experiences, answers, and demeanor, and
determine whether there is a reasonable ground to believe the juror cannot
render a fair and impartial verdict.” Opinion ¶ 28, supra (citing State v.
Colorado, 256 Ariz. 97, 103 ¶ 23 (App. 2023)). The Opinion argues for
deference, claiming it is simply not our job to judge whether there was a
reasonable basis to believe a juror could not render a fair and impartial
verdict because we could only do so from our review of a transcript.

21

STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
Opinion ¶¶ 28-32, supra. It states: “we cannot discern, from mere lines of
transcript, the indicia of bias of a prospective juror which could lead us to
a different conclusion[.]” Opinion ¶ 31, supra. It continues, “[o]ur review
of a cold transcript does not allow us to look a prospective juror in the eye
or hear her tones of voice.” Opinion ¶ 33, supra. Having determined that
we have no choice but to defer, and no means at hand from which we might
reach a contrary conclusion, the Opinion finds that “reasonable evidence”
of a lack of bias requires affirmance here. Opinion ¶¶ 31-32, supra. The
Opinion thus holds, notwithstanding the 2022 amendments, that voir dire
merely requires a conclusory averral of impartiality at its end, as before,
foreclosing further analysis. See Smith, 182 Ariz. at 115; Reasoner, 154 Ariz.
at 384.

¶82 These mistaken premises lead the Opinion to its incorrect
outcome. Rules 18.4(b) and Rule 18.5(h), taken together, require us to
consider from the totality of the record whether the superior court abused
its discretion, and with skepticism about the rote rehabilitation-and-setting-
aside exercise.

¶83 When we “consider the totality of [Juror 6’s] conduct and
answers given during voir dire[,]” there is “a reasonable ground to believe
that” Juror 6 “cannot render a fair and impartial verdict.” Ariz. R. Crim. P.
18.4(b), 18.5(h). The totality of conduct and answers here extend far beyond
the assurance of likely neutrality that was provided only in response to a
question closely tracking the one advised against in the recently-enacted
comment to Rule 18.5(f). See Ariz. R. Crim. P. 18.5(f) cmt. (2022).
Dismissing the transcripts that make up that totality as “mere” and “cold,”
and thus incapable of supplying evidence of a “reasonable ground” under
Rule 18.4(b), is at odds with Rule 18.5(h), and is a thumb we are not allowed
to place on the scale. Opinion ¶¶ 31-32, supra. Put another way, the
transcripts are much of what we have to work with. If we cannot use their
content to review the propriety of the superior court’s analysis of “the
totality of a prospective juror’s conduct and answers given during voir
dire[,]” as the Opinion suggests, we are functionally barred from reviewing
the superior court’s decision. Compare Ariz. R. Crim. P. 18.5(h).

¶84 A major problem with relying on Juror 6’s attestations of
impartiality is that her emotional reaction to discussing her sexual assault
suggests potential bias on her part. The record here is telling. At first, there
was no reflection on the record of Juror 6’s emotional reaction to discussing
her sexual assault. Then defense counsel claimed “[s]he was moved to
tears.” The State’s lead counsel jumped in, objecting to the statement about
tears, repeating that he did not see tears and “the [c]ourt didn’t see it
either.” At that point, the State’s other counsel interjected that she “saw her

22

STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
eyes get more glassy, but [she] didn’t see any tears.” Notably, the State
raised Juror 6’s emotional reaction while opposing the motion to strike her.
That concession is a statement against interest, which, in other legal
contexts, we treat as an indication of its reliability. See Ariz. R. Evid.
804(b)(3) (setting forth statements against interest as one exception to rule
against hearsay).

¶85 After the State’s concession that Juror 6’s eyes got moist, and
in apparent response to one counsel’s claim the court did not see any tears,
the court acknowledged Juror 6 “did have a slight emotional response.” In
terms of what the court noted “was a slight change in her tone of voice when
she was describing what occurred.” Thus, setting the defense aside, the
court and the State acknowledged Juror 6’s emotional reaction in her voice
and moist eyes. The Opinion also acknowledges that the court found a
“slight emotional response” and “slight change in her tone of voice.”
Opinion ¶ 30, supra.

¶86 The court’s factual error in relying on a misunderstanding or
mishearing of Juror 6’s initial remarks provides a further basis to reverse.
In denying Puga’s motion to strike Juror 6 for cause, the court stated, “[s]he
did provide an answer initially that she might be able to be fair and
impartial, that she didn’t think that this would impact her at all.” But that
is not what Juror 6 said initially. True, she allowed in her second answer to
the court that she thought she “might” be able to set her experience aside
so it wouldn’t affect her. But her first answer, in response to non-leading
open-ended questions like those Rule 18.5(f)’s comment urges, was that “I
don’t know, you know, how that would affect me, but you just don’t – you
don’t know.” That unled answer was undeniably equivocal, and the court’s
misunderstanding of her equivocal statement is a factual error to which we
cannot defer. See Shooter, 235 Ariz. at 200 ¶ 4.

¶87 But it is really the totality of all of these issues that made
empaneling Juror 6 error. Juror 6’s history as a sexual assault victim is one
factor. Her unled, volunteered uncertainty as to how her history would
affect her as a juror is another. That the court rehabilitated and
affirmatively requested an assurance of neutrality despite the comment to
Rule 18.5(f) is another. Her moist eyes and emotional reaction, admitted by
the nonmovant here, is yet another. Putting it all together, there is a
“totality” that adds up to reasonable grounds to suspect she might be
biased. See State v. Thornton, 187 Ariz. 325, 330 (1996) (“If confronted with
a challenge for cause in which the facts do not clearly establish whether a
prospective juror should be removed, the better practice will be to resolve
doubt in favor of disqualification.”).

23

STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
¶88 It is more important after the abolition of peremptory
challenges to make sure we apply Rule 18.4 and its prohibition of seating
jurors for whom there are “reasonable ground[s]” to question their
partiality. See Ariz. R. Crim. P. 18.4(b). Until 2022, the superior court could
justifiably expect the parties to weed out most of the jurors for whom a
defendant would argue there was such a “reasonable ground.” The
Arizona Supreme Court said as much in State v. Cruz. 218 Ariz. 149, 159 ¶
31 (2008) (“We see no fundamental error. When questioned, [a juror] stated
that she could be fair and impartial to both sides. [Defendant’s] concerns
that sympathies based on her husband's former job might influence her
decisions exemplify why a defendant is given peremptory strikes: to
remove a qualified juror whom the defendant does not wish to have on the
jury.”).

¶89 Now counsel can’t do that. Instead, all of the work to avoid
potential bias in Arizona’s juries occurs through strikes for cause. We must
not hold to prior law, since modified by rule changes, and insist that if there
is “reasonable evidence” of nonbias from a conclusory attestation, the
remainder of the record suggesting bias is unreviewable, so courts may seat
arguably biased jurors. We must instead honor the plain language of Rules
18.4(b) and 18.5(f) and employ the concepts of “reasonable ground” and
“the totality of a prospective juror’s conduct and answers given during voir
dire[.]” There was not, as the Opinion would have it, an “unambiguous
affirmation of impartiality.” Opinion ¶ 33, supra. Where the record is more
equivocal, the right question is whether there is any reasonable ground to
believe Juror 6 could not be fair. Here, there was substantial support for
both hypotheses – that she could be fair, and that she could not be. In that
situation, to decline to strike Juror 6 was error. That requires reversing this
particular conviction and ordering a retrial.

C. Striking Prospective Juror LB For Cause Where There Was
Far Less Suggestion of Potential Bias, If Any, Underscores
the Error in Declining to Strike Juror 6.

¶90 The error here is underscored by how much more potential
bias Juror 6 demonstrated than prospective juror LB, who was stricken for
cause earlier in the voir dire. LB was not a sexual assault victim – her
connection with sexual assault was her acquaintance with her son’s ex-
girlfriend, whom she unflatteringly described as doing “a lot of lies.”
Assuming life history can matter, there was far less reason to think LB
would be biased than Juror 6. LB’s answer to the court’s first question about
potential bias was more favorable than Juror 6’s. LB said, she didn’t think
so, to whether her experience would bias her, while Juror 6 was initially
repeatedly equivocal. Despite a minimal demonstration of potential bias at

24

STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
most, the court removed LB for cause. If LB’s responses demonstrated
cause in this voir dire, as the State contended and the defense agreed, then
a fortiori, the court should also have removed Juror 6.

D. The State Did Not Demonstrate the Error Was Harmless.

¶91 Because there was an error in seating Juror 6, we cannot affirm
Puga’s conviction and sentence unless the error was harmless. Montoya, 129
Ariz. Cases Dig. at ¶ 72. Under harmless error analysis, the State must
prove beyond a reasonable doubt that seating Juror 6 did not contribute to
or affect the verdict or sentence. State v. Henderson, 210 Ariz. 561, 567 ¶ 18
(2005). The State did not seek to demonstrate that empaneling Juror 6 did
not impact Puga’s conviction. Because I believe not striking Juror 6 was
error, I thus believe the court must vacate Puga’s conviction and sentence.

III. The Court Did Not Abuse Its Discretion in Seating Juror 10, as Its
Voir Dire Complied with Rule 18.5 and Revealed Her Lack of
Potential Bias, as the Court Determined Within Its Discretion.

¶92 The Opinion is correct that the superior court did not abuse
its discretion when it denied his request to strike Juror 10, in light of her
history as a sexual assault victim. The superior court complied with Rule
18.5(h) by conducting a “thorough oral examination” of Juror 10. The
court’s first question after learning Juror 10 had previously been sexually
assaulted was the open-ended question “if you wouldn’t mind just letting
us know what information you want to share,” followed up by “when was
this, approximately?” After Juror 10 answered the first question by
explaining she had done therapy and thought she would not be biased, the
court did not immediately seek a rote confirmation that she would be fair
and impartial. Instead, the court asked less directly if “you think you
would be able to set that aside and not have it be on your mind or front of
mind while you’re hearing testimony about allegations of sexual assault?”
Beyond that, the court supervised a robust, wide-ranging voir dire that did
not consist of strong requests for averrals of impartiality and was consistent
with amended Rule 18.5 and its comments.2

2 See also Jessica M. Salerno, et al., The Impact of Minimal Versus Extended
Voir Dire and Judicial Rehabilitation on Mock Jurors’ Decisions in Civil Cases, 45
L. & Hum. Behav. 336 (2021) (explaining that “[e]xtended voir dire,”
questioning by the parties, and open-ended questions should elicit more
candid answers from prospective jurors than the use of “minimal voir dire,”
questioning solely by the court, and closed-ended questions).

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STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
¶93 As Rule 18.5 now provides, it is the fullness of what is elicited
in voir dire that indicates bias or its absence, not one historical fact, or one
conclusory averral. See Ariz. R. Crim. P. 18.5(h) (requiring courts to
“consider the totality of a prospective juror’s conduct and answers given
during voir dire”). Applying that standard here, the State is right that there
was no abuse of discretion in empaneling Juror 10. Juror 10’s first,
unprompted statement concerning bias was that “I do not believe [my
experience with sexual assault] will affect my ability to be impartial.”

¶94 But more than that, the give and take over five pages of
transcript demonstrates lack of bias. Juror 10 gave free, open, and
affirmative answers in response to non-leading questions. When asked
whether her experience would not be front-of-mind during testimony she
answered: “[a]bsolutely. I’ve done a lot of healing. I also believe a jury of
your peers includes people that have been sexually assaulted because it
does happen.” Juror 10 explained why she participated in therapy, what
that therapy was, discussed her efforts to escape substance use, and she
explained her attitudes toward law enforcement in relation to her
experience of assault. This open, non-leading discussion is what amended
Rule 18.5 contemplates. The record supports the court’s finding that Juror
10 did not “have any strong emotional response” to the voir dire about
sexual assault, reinforcing the correctness of its decision to empanel her. See
Colorado, 256 Ariz. at 102 ¶ 22 (“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.”). This stands in stark contrast to the record concerning Juror 6,
which found the State’s own counsel admitting that Juror 6’s eyes
moistened while discussing her prior victimization, which is evidence of
demeanor contrary to the superior court’s empanelment that we must
weigh.

The Arizona Supreme Court’s Task Force on Jury Data Collection, Practices,
and Procedures relied extensively on Professor Salerno’s work in
recommending the changes substantially adopted to Rules 18.4 and 18.5.
See Supreme Court of Arizona, Report and Recommendations Statewide Jury
Selection Workgroup: A Workgroup of the Task Force on Jury Data Collection,
Practices, and Procedures (2021),
https://www.azcourts.gov/Portals/74/Jury%20TF/SJS%20Workgroup/
SJSW_Final%20Report%20and%20Recommendations_11_01_21.pdf?ver=
QosXeyxN0xkk1IdwRQF-cw%3d%3d.

26

STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
¶95 Like the Opinion, I reject Puga’s argument that Juror 10’s
background as a sexual assault victim means she is biased. Our law has
long recognized the important principle that being a victim of a crime –
even of the crime charged in a criminal trial – does not automatically
disqualify a potential juror. State v. Rose, 121 Ariz. 131, 140 (1978) (“[A]
juror need not be stricken for cause simply because he was the victim of a
crime similar to the one with which the defendant is charged.”). The
suggestion that crime victims may be automatically excluded as biased
likewise offends Arizona’s Victim’s Bill of Rights. See Ariz. Const., art. 2, §
2.1. That remains true now that our supreme court has abolished
peremptory challenges. See Colorado, 256 Ariz. at 103 ¶¶ 24-29 (explaining
the court did not abuse its discretion by not striking a juror who had
experienced domestic violence in a domestic violence murder case). That
principle is important given the constitutional nature of the right not to be
excluded from jury service for invidious purposes. See Powers v. Ohio, 499
U.S. 400, 409 (1991). The court analyzed well the totality of the
circumstances as Rule 18.5(h) required of it, protecting Puga’s rights, but
also Juror 10’s right to participate in the jury. See id. at 407 (“Jury service
preserves the democratic element of the law, as it guards the rights of the
parties and ensures continued acceptance of the laws by all of the people.”).
For all of these reasons, I agree with my colleagues that Juror 10 was
properly seated on this jury.

27

STATE v. PUGA
Jacobs, J., specially concurring in part and dissenting in part
CONCLUSION

¶96 For these reasons, I respectfully dissent. I also commend the
candor of the State’s co-counsel in this matter, which I believe helped make
this case one that merits reversal. Prosecutors have a special role as
advocates within the justice system. Matter of Martinez, 248 Ariz. 458, 463 ¶
8 (2020). They must ensure that defendants receive procedural safeguards
to prevent erroneous convictions. Id. By acknowledging in voir dire that a
juror the State might have preferred sit on the jury had an emotional
reaction, the State’s co-counsel acted as a “minister[] of justice and
exercise[d] professionalism even in the heat of trial.” State v. Hulsey, 243
Ariz. 367, 394 ¶ 123 (2018); see Ariz. R. Sup. Ct. 42, ER 3.8 (“Special
Responsibilities of a Prosecutor.”). Honoring that duty here, regardless of
the trial’s outcome, was a victory for the prosecution.

AMY M. WOOD • Clerk of the Court
FILED: JR

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