State v. Cunnington

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSHUA KYLE CUNNINGTON, Appellant.

No. 1 CA-CR 25-0380
FILED 07-20-2026

Appeal from the Superior Court in Maricopa County
CR2024-111643-001
The Honorable Utiki Spurling Laing, Judge Pro Tempore

AFFIRMED

COUNSEL

Maricopa County Public Defender’s Office, Phoenix
By Grahame McNevin
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Jacob R. Lines
Counsel for Appellee
 STATE v. CUNNINGTON
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Veronika Fabian and Judge Andrew J. Becke joined.

B R O W N, Judge:

¶1 Joshua Cunnington appeals from his convictions and
sentences for two counts of aggravated driving under the influence,
arguing the jury was tainted by knowledge that Cunnington had rejected a
plea offer. For the following reasons, we affirm.

BACKGROUND

¶2 The State charged Cunnington with two counts of aggravated
driving under the influence, in violation of A.R.S. §§ 28-1381(1),
(2), -1383(A)(4). On the first day of trial, during jury selection but outside
the presence of the potential jurors, the State placed on the record that it
had extended a plea offer to Cunnington whereby he would plead guilty to
one count, with a sentencing range of six to ten years’ imprisonment.
Without the plea, he faced at least ten years on each count. Cunnington
rejected the offer, and the superior court resumed voir dire.

¶3 After a round of preliminary questions, the court asked the
prospective jurors generally if they needed to bring anything to the court’s
attention. Juror 19 raised their card and explained they and other jurors
had overheard a discussion in the hallway between Cunnington, his
mother, and his attorney about taking a plea. The court removed the jurors
from the courtroom, and Cunnington’s counsel explained that she and
Cunnington had been at the end of the hallway around a corner. Defense
counsel stated she had discussed “options” with Cunnington, but there was
neither yelling nor heightened voices. The court spoke with Juror 19,
outside the presence of the other jurors, who clarified they had heard
Cunnington’s mother yelling during the conversation, telling Cunnington
to “just take the plea, take the plea; otherwise, I’m going to see you in, like,
15 years.” Juror 19 said they were unsure if they could remain impartial,
and that some other jurors may have also heard portions of the
conversation. The court then struck Juror 19 for cause.

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¶4 Next, the court questioned several potential jurors
individually as to what, if anything, they heard about this conversation in
the hallway, beginning with those whose questionnaires raised unrelated
issues. After addressing the questionnaires, the jurors were asked about
the hallway conversation. The court struck two more jurors based on what
they recalled overhearing. These jurors explained their recollection of the
discussion as follows:

• Juror 14 said, “[i]t sounded like suggesting a plea
being taken, and that that wasn’t going well. And
then I assume a mother, perhaps, was involved in the
initial conversation, and she walked past upset and
saying something like ‘I’ll see you in 10 or 15 years and
shake my hand’ maybe, something along those lines.”

• Juror 13 stated, “I heard talk of a plea. I heard talk of
15 years, and it sounded like a disagreement between
the two of you, and there was another lady that
seemed very upset.”

The court struck both jurors because they had learned of a specific sentence
Cunnington could receive if convicted.

¶5 The court did not strike the following jurors:

• Juror 20 said, “I could tell there was tension between
his attorney and his family. I did hear the word “plea,”
but that’s about all I could really make out. I could just
tell that there [were] words being spoken.” The juror
denied hearing any of this conversation would impact
their impartiality.

• Juror 8 stated, “I mostly heard mumbling. I heard, like,
tone, like, the tones of people. And then, obviously, I
saw—I’m presuming—the mother crying, but that’s it.
I can only assume, but it was a bad conversation going
on.” When asked if overhearing that conversation
would affect their view of the evidence, Juror 8 said, “I
don’t think so.”

• Juror 4 reported that they heard “just the last part
about the lady with the defendant saying she’ll be dead
by the time he gets out, something to that effect,” but
they did not remember the exact words used. After

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first being asked whether this would affect their ability
to be on the jury, Juror 4 stated, “I would think so,
because I would assume that he will take a plea.” The
court explained to Juror 4 that Cunnington would be
unable to take the plea and proceed to trial at the same
time. After the court’s explanation, Juror 4 denied that
this information would jeopardize their ability to
remain impartial and confirmed that they would
follow any instructions from the court prohibiting
them from considering any penalty when making a
decision as a juror.

• Juror 11 told the court “it was very loud, very
emotional, the mother was asking the defendant to
take the plea. And she kept walking in front of us, very
obviously upset and crying, and I did hear some words
exchanged between the defendant and his mother in
front of us.” The juror clarified they “didn’t hear his
response, but the mother said ‘okay, I will shake your
hand and when you get out you can bury me.” Juror
11 told the court they could be fair and impartial
despite hearing this conversation.

• Juror 17 could not recall any specifics, only that they
heard “[j]ust the emotional outburst of something
about taking or not taking a plea deal”; the juror told
the court this would not affect their ability to be
impartial.

These five jurors served on the jury panel.

¶6 Jurors 5, 6, 7, 9, and 16 were selected as the remaining
members of the panel. The court brought in these five jurors (along with
Jurors 4, 11, and 17) and asked them collectively whether any of them had
heard “any part of a discussion” between Cunnington and his attorney. Of
this group of jurors, only Jurors 4, 11, and 17 conveyed that they heard
anything. Neither the court nor the parties asked Jurors 5, 6, 7, 9, and 16
individually about anything they might have overheard. Cunnington did
not object to the selection of any of these jurors; instead, he affirmatively
passed the panel for cause.

¶7 Following a four-day trial, the jury convicted Cunnington as
charged, and the court sentenced him to concurrent ten-year prison

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sentences. Cunnington timely appealed, and we have jurisdiction under
A.R.S. §§ 12-120.21(A)(1), 13-4031, -4033(A)(1).

DISCUSSION

A. Inclusion of Jurors Aware of Plea Offer

¶8 Cunnington argues the superior court committed structural
error in his case by seating jurors who had overheard the conversation
between him, his defense counsel, and his mother. He argues that exposure
to information about his rejected plea deal tainted these jurors and rendered
them unable to be fair and impartial.

¶9 Typically, when a defendant fails to object to trial error, they
cannot obtain appellate relief based on that error unless they demonstrate
fundamental error. State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018). This
requires the defendant to show (1) trial error occurred, (2) the error was
fundamental, and (3) the error resulted in prejudice. Id. at 142, ¶ 21. But
some trial errors are so profound that they “deprive defendants of basic
protections without which a criminal trial cannot reliably serve its function
as a vehicle for determination of guilt or innocence,” and whenever such an
error occurs, “no criminal punishment may be regarded as fundamentally
fair.” State v. Ring, 204 Ariz. 534, 552, ¶ 45 (2003) (citation omitted and
cleaned up). These trial errors are “structural errors,” id., and a defendant
who shows structural error occurred is not required to show prejudice, State
v. Tucker, 231 Ariz. 125, 131, ¶ 7 (App. 2012). Before a defendant can obtain
relief either under structural or fundamental error, they must first show
that error occurred. See State v. Diaz, 223 Ariz. 358, 360–61, ¶ 11 (2010).

¶10 Cunnington argues the superior court erred by seating jurors
who had overheard portions of the conversation between him, his mother,
and his counsel, because their knowledge that Cunnington rejected a plea
“irrevocably tainted” the panel. Under Arizona Rule of Criminal Procedure
(“Rule”) 18.4(b), “[t]he court, on motion or on its own, must 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.” We review a court’s determination about whether a juror can be
fair and impartial for an abuse of discretion. See State v. Colorado, 256 Ariz.
97, 99–100, ¶¶ 10–16 (App. 2023).

¶11 Cunnington has not persuaded us that the superior court
erred in seating any juror in his case. He claims the jurors were irrevocably
tainted by overhearing the conversation because they then knew
Cunnington’s mother wanted him to plead guilty. Cunnington believes his

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mother’s desire for him to take the plea offer necessarily implies she
believed Cunnington was guilty. We are not convinced; a defendant may
plead guilty to a charged offense for various reasons other than actual guilt.
State v. Stewart, 131 Ariz. 251, 254 (1982). That a juror may have learned of
Cunnington’s mother’s request does not, alone, render that juror biased.

¶12 Moreover, when asked by the court, no member of
Cunnington’s jury conveyed that they would be unable to act fairly and
impartially based on any portion of the conversation they overheard. The
record contains no evidence that any of the seated jurors gave the court a
reason to question their assurances of impartiality, and considering the
considerable deference trial judges have in assessing a juror’s credibility,
see State v. Puga, 259 Ariz. 229, 234–35, ¶ 28 (App. 2025), it is not apparent
the court erred in seating those jurors. No juror gave the court reasonable
grounds to conclude that they would be somehow unable to serve as a fair
and impartial juror, and thus the court was not required to sua sponte strike
them. See Ariz. R. Crim. P. 18.4(b).

¶13 Though he acknowledges no Arizona case has directly
addressed what a trial judge should do when jurors learn about a rejected
plea, Cunnington cites several cases from other states to support his
argument that jurors cannot maintain their impartiality after discovering a
defendant considered a guilty plea. See State v. Thompson, 813 S.E.2d 59 (W.
Va. 2018); Brooks v. State, 763 So.2d 859 (Miss. 2000); Blocker v. State, 809
So.2d 640 (Miss. 2002); Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000).
But these cases are not persuasive in addressing the circumstances
presented here.

¶14 In Thompson, the trial judge made statements to the jury pool
at the start of trial indicating the defendant had decided to plead guilty and
thus “probably did everyone a favor by doing the plea . . . because like I
said it was a pretty tragic case with some children involved.” Thompson,
813 S.E.2d at 63. The defendant, however, decided to withdraw his guilty
plea and proceed to trial; jury selection resumed the next day with the same
jury pool. Id. The appellate court reversed the conviction, holding that the
trial judge’s comments at the beginning of jury selection tainted the
defendant’s presumption of innocence. Id. at 67. The appellate court
explained that the judge’s comments plainly expressed his opinion “on the
material fact at trial—[the defendant’s] guilt.” Id. at 64. But in the present
case, the superior court imparted no such opinion. Moreover, the Thompson
court noted that the information regarding the defendant’s plea tainted the
jury pool “with the knowledge that [defendant] was willing to plead guilty
in a case involving multiple casualties.” Id. at 65. Here, in contrast, nothing

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suggested to the jurors that Cunnington was willing to plead guilty; to the
contrary, even after an emotional plea from his Mother, Cunnington
proceeded to trial.

¶15 In Blue, at the beginning of jury selection, the trial judge
apologized to the prospective jurors “for their long wait,” explaining in part
that

[this] is a situation where the attorney has been speaking to
his client about what does he want to do. And when you are
on the button like these cases, it’s a question. Frankly, an offer
has been made by the State or do I go to trial. And he has
been back and forth so I finally told him I had enough of that,
we are going to trial. You have been sitting out here and this
is holding up my docket and I can’t get anything done until
we know if we are going to trial or not.

Blue, 41 S.W.3d at 130. An appellate court determined that the judge’s
comments “tainted appellant’s presumption of innocence in front of the
venire,” and thus fundamental error occurred, requiring reversal. Id. at 132-
33. Though the prejudicial impact of trial judges sharing their impressions
with potential jurors about a defendant’s guilt based on rejection of a plea
offer is obvious, nothing of the sort happened in Cunnington’s trial.

¶16 Similarly, Brooks presents a substantially different set of facts.
During closing arguments in that case, the prosecutor informed the jury the
defendant had been offered a plea and refused to take it, arguing the
defendant “just didn’t take it. He took a chance rolling the dice. He’s
relying on you to turn him loose when he knows he’s guilty . . . .” Brooks,
763 So.2d at 862–63, ¶ 8. Given that the prosecutor “sought to have the jury
draw negative inferences from the fact that [the defendant] chose to exercise
his fundamental constitutional right to a trial by jury,” the appellate court
determined the prosecutor’s statements created reversible error. Id. at 864,
¶¶ 13–14. As with the other cases we have discussed, the error went well
beyond potential jurors merely discovering that a defendant had rejected a
plea offer.

¶17 The facts in Blocker v. State are somewhat more analogous to
the present case; there, a juror had been allowed to remain on the jury
despite having read a newspaper article about the case suggesting some
kind of plea bargaining had begun. Blocker, 809 So.2d at 643,
¶ 11. Critically, and much like Cunnington’s case, the jurors assured the
judge they could remain fair and impartial, including the juror who read

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the newspaper article; on that record, the Mississippi Supreme Court did
not find reversible error. Id. at 644, ¶ 15. We see no reason to conclude
differently.

¶18 Cunnington also tries to analogize his case to State v. Miller, 178 Ariz. 555 (1994), in which a dismissed alternate juror left a note on
another juror’s windshield that expressed the alternate juror’s opinion that
the defendant was guilty. Id. at 557. Acknowledging the principles that “a
jury’s verdict ‘must be based upon the evidence developed at the trial’ goes
to the fundamental integrity of all that is embraced in the constitutional
concept of trial by jury,” and that “[a]ny private communication, contact or
tampering with a juror gives rise to a strong presumption that the verdict
has been tainted,” our supreme court remanded for an evidentiary hearing
to determine what effect this note may have had on the jury’s verdicts. Id.
at 557, 560. According to Cunnington, Miller holds that a verdict is tainted
“when the jury learns an outside opinion on the defendant’s guilt.” But
Miller did not hold that the note automatically tainted the verdict; instead,
the case was remanded for the trial court to determine whether the
communication prejudiced the verdict. Id. at 560. Here, the superior court
properly inquired as to what the jurors had overheard and received
assurances during voir dire that those selected would maintain
impartiality. Cunnington has not shown the court committed error.

B. Failure to Question Jurors

¶19 Cunnington argues the court also committed structural error
by failing to meaningfully assess whether the five other jurors (Jurors 5, 6,
7, 9, and 16) had overheard any part of the conversation between
Cunnington, his mother, and his counsel, and that as a result the court failed
to exercise its discretion during jury selection.

¶20 Cunnington is incorrect in claiming the court failed to
question these jurors. The court asked all these jurors whether they heard
“any part of a discussion between defense counsel and Mr. Cunnington.”
Cunnington has not shown why these jurors’ denials of hearing any such
conversation were insufficient. 1 He argues this questioning failed to meet
the requirements of Rule 18.5(f), which obligates the court to “conduct a

1 In his reply brief, Cunnington suggests the court’s question was
deficient because it did not specifically reference Cunnington’s mother. Yet
all jurors who indicated they did hear something after being asked the same
question (Jurors 4, 11, and 17) seemed to understand what conversation the
court referred to without issue.

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thorough oral examination” of prospective jurors. But nothing in the rule
suggests a court is required to further inquire about a juror’s otherwise
conclusive response to the court’s question. And although Cunnington
suggests that the court’s failure to question these jurors has made it
impossible to know what they may have heard, he had every opportunity
to make that record in the superior court. That he failed to do so does not
mean he is entitled to automatic reversal on appeal. Cunnington has not
shown the court committed any error, structural or otherwise, in
conducting voir dire and addressing the hallway conversation.

C. Other Jury Selection Concerns

¶21 Cunnington’s final argument involves several other concerns
with jury selection. As Cunnington acknowledges, because he did not raise
any objection during jury selection, we review for fundamental, prejudicial
error only. See Escalante, 245 Ariz. at 142, ¶ 21. To demonstrate prejudice,
Cunnington must show that absent any alleged error the jury could have
reached a different verdict. Id. at 144, ¶ 29. This “could have” standard is
not easily met, and is an objective inquiry that “necessarily excludes
imaginative guesswork.” Id. at ¶ 31.

¶22 Cunnington argues the superior court should not have sent
the jury out into the hallway “without any instruction or limitation” telling
the jurors not to discuss the conversation they may have overheard, and
that it was “unknown which details were discussed and what additional
information was conveyed to the panelists who did not hear the original
conversation.” Had Cunnington timely objected, the record might support
his argument. Instead, his argument relies essentially on speculation that
prejudicial information was spread among the jurors. Speculation,
however, is not enough to establish fundamental, prejudicial error. See State
v. Lowery, 230 Ariz. 536, 540, ¶ 10 (App. 2012).

¶23 Cunnington also argues the court’s decision to strike certain
jurors (Jurors 13, 14, and 19) and allow other jurors to be seated lacked a
“rational basis to distinguish between the prospective jurors.” But both the
parties and the court made it clear that for the three excluded jurors, at least
part of the rationale for excluding them was the fact they had learned of a
specific sentence Cunnington could face if convicted. It would have been
improper for the jury to hear or consider such information. See State v. Koch, 138 Ariz. 99, 105 (1983) (“[A] trial court’s jury instructions generally should
not touch on the subject of punishment except to advise the jury not to
consider it.”); State v. Jones, 197 Ariz. 290, 305–06, ¶ 38 (2000).

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¶24 Finally, Cunnington claims the court improperly rehabilitated
Juror 4 by explaining to the juror that Cunnington could not simultaneously
accept the plea and go to trial. Even if this exchange constituted
impermissible rehabilitation, Cunnington has not shown prejudice because
Juror 4 was ultimately selected as an alternate juror. See State v. Bolivar, 250
Ariz. 213, 224, ¶¶ 34–35 (App. 2020) (finding alternate juror’s exposure to
article relating to case did not affect verdict); State v. Moore, 222 Ariz. 1, 18,
¶ 99 (2009) (restricting voir dire was harmless as to jurors that did not take
part in deliberations).

CONCLUSION

¶25 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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