State v. Schalk

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

DAVID RICHARD SCHALK, Appellant.

No. 1 CA-CR 24-0145
FILED 01-30-2025

Appeal from the Superior Court in La Paz County
No. S1500CR202200105
The Honorable Marcus A. Kelley, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Carr Law Office, PLLC, Kingman
By Sandra Carr
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.

P A T O N, Judge:

¶1 David Schalk appeals from his convictions and sentences for
kidnapping and aggravated assault. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
verdicts. State v. Mendoza, 248 Ariz. 6, 11, n.1 (App. 2019). In June 2022,
Schalk and his wife (“Wife”) hired Adam1 to install an awning on their
trailer. Adam began the project but never completed it. Schalk and Wife
became frustrated that the project was not done, and Adam became
frustrated that he had not been fully paid. In July, Adam texted Wife
demanding $1,000 or he would tell Schalk’s employer that he saw Schalk
smoking marijuana in his employer’s vehicle, which violated company
policy. That same day, Schalk and Wife drove to Adam’s house and said
they were there to take him to the bank to pay him the remainder of the
money owed.

¶3 According to Adam, Schalk and Wife abducted him at
gunpoint, and drove him out to the desert where he was beaten “within an
inch of [his] life.” Wife later drove Adam home, at which time his friend
called 911 after seeing his injuries. Adam was airlifted to a Phoenix hospital
for medical treatment.

¶4 The State charged Schalk with one count of kidnapping, a
class 2 dangerous felony, one count of aggravated assault, a class 4
dangerous felony, one count of aggravated assault, a class 6 felony, and one

1 We use a pseudonym to protect the victim’s privacy. See Ariz. R. Sup. Ct.
111(i).

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count of aggravated assault, a class 3 dangerous felony.2 Although Schalk
and Wife were tried together, Wife is not a party to this appeal.

¶5 Schalk’s trial began in January 2024. Adam, his friend who
called 911, and a police officer who collected Schalk’s DNA, testified on the
first day of trial. At the beginning of the second day of trial, Juror #2 gave
the court the following note:

To: Judge Marcus Kelley
From: Juror #2

I am regretfully informing you that I cannot continue as a
juror in this case because I find myself unalterably prejudiced
towards the plaintiff in this case. From what I observed of him
and his testimony yesterday I believe him to be a confidence
man and charlatan and grifter. There is absolutely no way that
I can take what he says with any honesty. As such, my
continued participation in this trial would not serve any
constructive purpose and would only be detrimental to the
proceedings as I cannot remain unbiased in regard to him.

Based on the previous day’s witnesses, the court understood the letter to
refer to Adam in a negative way, which was not disputed by the State or
defendants.

¶6 The court and parties agreed Juror #2 should be questioned
about whether he shared his views with other jurors. The court questioned
Juror #2:

THE COURT: The primary question is, did you communicate
this to any of the other jurors at all?

JUROR NUMBER 2: No, your Honor.

THE COURT: Okay. So there’s no way that your thoughts
could taint the rest of the people in there?

2 The State also charged Schalk with one count of attempted first-degree

murder, a class 2 dangerous felony, but the court granted the State’s motion
to dismiss this count before trial.

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JUROR NUMBER 2: No. I did not even speak to any of them
about anything.

THE COURT: Okay. All right. Now, I’m going to ask you one
question. And you know, when we gave you the preliminary
instructions, you were instructed to keep an open mind until
you heard all of the evidence. But despite that instruction, you
still feel the way the letter reflects?

JUROR NUMBER 2: Yes, your Honor.

THE COURT: Okay. I have no further questions.

The court excused Juror #2 over Schalk’s objection.

¶7 The jury convicted Schalk on all four counts. The court
sentenced Schalk to concurrent sentences, the longest being seven and a half
years’ imprisonment, with 32 days of presentence incarceration credit.

¶8 Schalk timely appealed. We have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) Sections 12-120.21(A)(1), 13-4031, and 13-
4033(A)(1).

DISCUSSION

¶9 Schalk argues the superior court abused its discretion by
excusing Juror #2 because Juror #2’s opinions were “properly formed,” he
did not share them with other jurors, and the court did not thoroughly
question the juror before excusing him. Schalk also contends that excusing
Juror #2 displaced the independent judgment of the jury and amounted to
structural error. The State responds that the court acted within its
discretion in excusing Juror #2 because he expressed both in writing and
verbally that he could not be fair and impartial.

¶10 We review a superior court’s decision to excuse a juror for
cause for an abuse of discretion. State v. Naranjo, 234 Ariz. 233, 239, ¶ 12
(2014). A criminal defendant has a constitutional right to a fair and
impartial jury. See Ariz. Const. art. 2, § 24; see also U.S. Const. amend. VI.
But a defendant “is not entitled to a particular jury, but only a fair one . . .
and unless the record affirmatively shows that defendant was not tried by
a fair and impartial jury, then there is no error.” State v. Thomas, 133 Ariz.
533, 537 (1982).

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¶11 The Arizona Rules of Criminal Procedure require “[t]he court,
on motion or on its own,” to “excuse a prospective juror or jurors from
service in the case if there is a reasonable ground to believe that the juror or
jurors cannot render a fair and impartial verdict.” Ariz. R. Crim. P. 18.4(b).
This can occur at any time during trial proceedings. Id. “[T]he court should
remove for cause any juror who expresses serious misgivings about the
ability to be fair and impartial.” State v. Blackman, 201 Ariz. 527, 533, ¶ 12
(App. 2002). A juror may serve if he “is willing to put aside his opinions
and base his decision solely upon the evidence.” State v. Johnson, 247 Ariz.
166, 198, ¶ 113 (2019) (citation omitted). Whether a juror can render a fair
and impartial verdict is a decision for the superior court. See State v. Lavers, 168 Ariz. 376, 390 (1991). We defer to the superior court on jury selection
and service issues—including assessing a juror’s demeanor when
questioned—because the court is “in the best position to ‘assess the
demeanor of the [jury panel], and of the individuals who compose it.’”
Naranjo, 234 Ariz. at 239, ¶ 12 (citation omitted).

¶12 Here, Juror #2 contacted the court to say he was “unalterably
prejudiced[]” regarding Adam, the victim in this case, before Adam’s
testimony had concluded. The juror stated that his “continued
participation in this trial would not serve any constructive purpose and
would only be detrimental to the proceedings as [he] cannot remain
unbiased.” The court asked Juror #2 if he felt this way despite previously
being instructed to keep an open mind until all evidence was presented.
The juror responded that he did. It was therefore not error for the court to
view Juror #2’s words and actions as expressing something beyond
“serious misgivings about the ability to be fair and impartial”—when, in
fact, the juror’s statements were unequivocal—and excuse him. See
Blackman, 201 Ariz. at 533, ¶ 12; see also Naranjo, 234 Ariz. at 240, ¶ 17.

¶13 Schalk asserts that Juror #2 should not have been excused
because he stated he could be fair and impartial during voir dire. When
Juror #2 was asked about listening to witness testimony during voir dire,
Juror #2 responded he “would give the same weight to you know, anyone”
and “listen with an unbiased ear.” Indeed, prior to trial, all of the jurors
affirmed they would “give careful attention to the proceedings, follow the
Court’s instructions . . . and render a verdict in accordance with the law and
evidence presented.” But Juror #2 acknowledged this admonition and
made the statements Schalk points to before he sent the letter to the court
stating he was “unalterably prejudiced” and could not remain unbiased
regarding Adam.

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¶14 Schalk further contends the superior court did not conduct a
“thorough oral examination” before excusing Juror #2 for cause, apparently
referring to Arizona Rule of Criminal Procedure 18.5(f) (“The court must
conduct a thorough oral examination of the prospective jurors . . .”). “To
succeed on a claim that the court failed to adequately question the jury
panel,” Schalk “must demonstrate not only that the voir dire examination
was inadequate, but also that, as a result of the inadequate questioning, the
jury selected was not fair, unbiased, and impartial.” State v. Moody, 208
Ariz. 424, 451, ¶ 95 (2004). He has not met this burden.

¶15 Schalk also argues Juror #2’s letter was merely a credibility
opinion properly formed as part of his duties as a juror. Certainly, “the
credibility of witnesses is a matter for the jury.” State v. Canez, 202 Ariz.
133, 149, ¶ 39 (2002). But Juror #2’s statements in the letter—and verbal
affirmation he could not keep an open mind—were more than a mere
credibility determination about Adam. Juror #2, along with the rest of the
jury, had been instructed not to “form final opinions about any fact or about
the outcome of the case until you have heard and considered all of the
evidence[,]” to “[k]eep an open mind during the trial,” and “form your final
opinions only after you have had an opportunity to discuss the case with
each other and in the jury room at the end of trial.” Juror #2’s letter and
verbal response indicated he had not followed these instructions, and had
formed an opinion and could not keep an open mind before hearing all the
evidence—or even all of Adam’s testimony.

¶16 Schalk next argues that the superior court impermissibly
displaced the independent judgment of the jury and influenced the verdict
by excusing Juror #2. “In determining whether a [superior] court has
coerced the jury’s verdict, this court views the actions of the judge and the
comments made to the jury based on the totality of the circumstances and
attempts to determine if the independent judgment of the jury was
displaced.” State v. Huerstel, 206 Ariz. 93, 97, ¶5 (2003). Whether conduct
amounts to coercion is dependent upon the particular facts of each case.
State v. Fernandez, 216 Ariz. 545, 548, ¶ 8 (App. 2007). Circumstances that
may add to a finding of coercion include a judge having ex parte
communications with a deliberating juror, see State v. McCrimmon, 187 Ariz.
169, 173-74 (1996), a judge providing an impasse instruction prematurely,
see Huerstel, 206 Ariz. at 101, ¶ 25, or a judge persuading a jury foreman to
keep deliberating after the foreman expressed that further deliberations
would be unproductive, see State v. Lautzenheiser, 180 Ariz. 7, 11 (1994).

¶17 None of these circumstances are present here. Schalk
complains that the court’s action of excusing Juror #2 for the juror’s

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expressed prejudice coerced the verdict. But Juror #2 told the court he had
not shared his views about the case with any other jurors. And given that
nothing in the record indicates that the court told the jury why Juror #2 was
dismissed, the court’s decision to excuse Juror #2 did not displace the jury’s
independent judgment or influence it.

¶18 Because the court did not err, we do not address Schalk’s
argument that the court’s excusal of Juror #2 amounted to structural error.

CONCLUSION

¶19 We affirm.

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

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