State v. Suggs

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

KRISTEN JOI SUGGS, Appellant.

No. 1 CA-CR 14-0739
FILED 12-15-2015

Appeal from the Superior Court in Maricopa County
No. CR2013-420106-001
The Honorable Virginia L. Richter, Judge Pro Tempore

JUDGMENT AFFIRMED AS CORRECTED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Terry J. Reid
Counsel for Appellant
 STATE v. SUGGS
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge John C. Gemmill joined.

J O H N S E N, Judge:

¶1 Kristen Joi Suggs appeals her convictions and resulting
sentences for leaving the scene of a fatal accident, a Class 3 felony, and two
counts of driving or actual physical control of a vehicle while under the
influence of intoxicating liquor or drugs, Class 1 misdemeanors. For the
reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Suggs was driving when her car hit a pedestrian; she drove
on for several blocks before she stopped and eventually called police. In a
recorded interview several hours later, Suggs told police an unknown
object struck her windshield. She also admitted she drank alcohol before
the accident.

¶3 Before trial, Suggs requested that the court ask the jury pool
the following questions during voir dire:

Is there anyone here who suffers from asthma or other
breathing issues? Alternative. Is there anyone here who
believes that some people who claim to have breathing
problems exaggerate those breathing problems when it is to
their benefit? For example, where they wish to avoid some
stressful event like a test, difficult exercise, work assignments,
etc.

Suggs argued the proposed questions would allow her to identify any
potential juror who might be inclined to conclude Suggs was lying because
of a belief that an asthmatic may use breathing issues to avoid consequences
or stressful situations. She asserted that the video interview of Suggs
wheezing, along with testimony by police describing her breathing
difficulties as they attempted to conduct field sobriety tests, would raise an
inference that she used her breathing difficulties as a ploy to avoid talking
about the accident.

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Decision of the Court

¶4 The superior court did not allow the proposed questions,
explaining:

All of these issues seem to go to issues of credibility that
you're certainly free to argue to the jury, and they are so fact
specific, that I don't see any real value in asking very general
questions about: Does anybody think that anyone who has
asthma would fake difficulties?

So I don't think that they're relevant in terms of voir
dire. I think they're issues of credibility and I think they're too
fact specific in terms of what you've identified as biases, that
it would be difficult without explaining the entire case to the
jury to be able to determine whether or not those biases that
you're looking for are present in the prospective jurors.

So I understand your arguments, but I still believe that
those questions are inappropriate. So you may ask questions
with regard to general prejudice or bias regarding specific
factors such as race, age and appearance involving your
client.

¶5 The jury found Suggs guilty of all three counts. The superior
court imposed concurrent terms of probation on each count. Suggs timely
appealed. We have jurisdiction pursuant to Article 6, Section 9 of the
Arizona Constitution and Arizona Revised Statutes sections 12-120.21(A)(1)
(2015), 13-4031 (2015) and -4033(A)(1) (2015).1

DISCUSSION

¶6 On appeal, Suggs argues the superior court denied her right
to a fair and impartial jury under the United States and Arizona
Constitutions when it prohibited her from asking the jury panel her
questions about asthma.

¶7 The scope of voir dire is entrusted to the discretion of the
superior court. State v. Smith, 215 Ariz. 221, 230, ¶ 37 (2007). We consider
the entire voir dire proceedings to determine whether the court abused its
discretion, and we will not overturn its ruling unless Suggs can show that

1 Absent material revision after the date of an alleged offense, we cite
a statute's current version.

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her jury was not fair, unbiased and impartial. See State v. Moody, 208 Ariz.
424, 451, ¶ 95 (2004).

¶8 Suggs argues the court's refusal to allow her proposed
questions could have resulted in the selection of a juror with an undisclosed
bias against people with breathing problems. We infer she argues that such
a juror may think persons with breathing problems may use their breathing
issues to avoid answering difficult questions or that such a person's
manifestation of a breathing problem during an encounter with police may
indicate guilt.

¶9 Suggs cites State v. Skaggs, 120 Ariz. 467, 470 (1978), a case
involving an insanity defense and asserted religious bias, in which our
supreme court noted that due process requires the superior court to
examine an issue if "there was a nexus shown between the prejudice feared
and the issues of the case." But Suggs's breathing problems had nothing to
do with any issue to be determined by the jury - her breathing issues were
not a defense and they did not relate to any element the State was required
to prove. Thus, Suggs's argument is not really that jurors might be biased
against a defendant with a breathing problem; it is that jurors might think
that someone who had an intermittent breathing problem may use it to
avoid police questioning, or that manifestation of the breathing problem at
a particular moment may suggest guilt. Although in closing, the State
argued Suggs's breathing difficulties demonstrated "consciousness of guilt"
because she "knew something and didn't want to tell police," that argument
went to the issue of Suggs's credibility, which the jury was permitted to
determine based on the evidence. Additionally, in the recorded interview
shown to the jury, Suggs explained that she uses an inhaler for a breathing
condition and cough and that she is getting tested for asthma. Thus, Suggs
has not shown a nexus between any asserted prejudice and the issues in this
case.

¶10 The superior court must "ask prospective jurors any question
it deems necessary to determine their qualifications and to enable the
parties to intelligently exercise their peremptory challenges and challenges
for cause." State v. McMurtrey, 136 Ariz. 93, 99 (1983); see also Ariz. R. Crim.
P. 18.5(e). But as the comment to Arizona Rule of Criminal Procedure 18.5
states, "Subsection (e), and the shift of voir dire responsibility to the court,
are intended to remove entirely the practice of some attorneys of
'conditioning' the jury by means of questions and argument which amount
to preliminary instructions on the law and facts of the case." Although case-
specific voir dire questions are not categorically prohibited, see State v.
Garcia, 224 Ariz. 1, 8-9, ¶¶ 13-16 (2010), it is improper to use voir dire to

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"condition the jury to the receipt of certain evidence or to a particular view
of the evidence." McMurtrey, 136 Ariz. at 99.

¶11 The superior court rejected Suggs's questions because they
were too fact-specific and it would be difficult to accurately explain their
context. The court also stated that the questions went to Suggs's credibility,
which the defense was free to address by other means. Further, the court
allowed Suggs to question any juror on general prejudice or bias regarding
race, age and appearance. Given the superior court's role in controlling the
scope and extent of voir dire, and given that the questions addressed specific
facts of Suggs's case, the superior court did not abuse its discretion in
refusing Suggs's questions.

¶12 Finally, Suggs has failed to show how she was prejudiced by
the jury selection process, i.e., that the jury selected was not fair or impartial.
See Moody, 208 Ariz. at 451, ¶ 95.

CONCLUSION

¶13 For the foregoing reasons, we affirm Suggs's convictions and
terms of probation. We order the judgment of conviction modified to state
that Suggs's conviction on Count 3 was for violation of A.R.S. § 28-
1381(A)(2), not A.R.S. § 28-1381 (A)(1).

:ama

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