State of Arizona v. Jose Luis Jimenez

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

JOSE LUIS JIMENEZ,
Appellant.

No. 2 CA-CR 2022-0062
Filed July 13, 2023

Appeal from the Superior Court in Pima County
No. CR20173703001
The Honorable Teresa Godoy, Judge Pro Tempore
The Honorable James E. Marner, Judge

AFFIRMED

COUNSEL

Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals, Phoenix
Counsel for Appellee

Megan Page, Pima County Public Defender
By Erin K. Sutherland, Assistant Public Defender, Tucson
Counsel for Appellant
 STATE v. JIMENEZ
Opinion of the Court

OPINION

Judge Eckerstrom authored the opinion of the Court, in which Presiding
Judge Brearcliffe and Judge Kelly concurred.

E C K E R S T R O M, Judge:

¶1 Defendant Jose Jimenez appeals from his conviction and
sentence for continuous sexual abuse of a minor. Jimenez argues the trial
court committed structural error by refusing to strike a “biased juror” for
cause. He also maintains the court committed reversible error when it
precluded a defense expert from testifying as to Jimenez’s sexual normalcy
unless he also submitted to a psychosexual evaluation by a state expert,
thereby forcing Jimenez to choose between presenting a complete defense
or giving up his constitutional privilege against self-incrimination. For the
reasons that follow, we affirm.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to affirming
the conviction. See State v. Payne, 233 Ariz. 484, n.1 (2013). At trial, the state
presented evidence that, repeatedly over the course of about eighteen
months, Jimenez had sexually abused his niece, P.B., who was nine years
old when the abuse began. After P.B.’s parents learned of the abuse and
reported it to police, Jimenez was charged with one count of continuous
sexual abuse of a child. After a six-day trial, the jury found Jimenez guilty.
The trial court sentenced him to thirteen years’ imprisonment. This timely
appeal followed. We have jurisdiction pursuant to A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Juror Number 8

¶3 Jimenez first argues the trial court committed structural error
by not striking for cause Juror 8, a retired Federal Bureau of Investigation
(FBI) agent with experience surveilling suspected “pedophiles.” During
voir dire, Juror 8 stated that for the final third of his FBI career, he had run
a surveillance team “assigned to surveil” suspected pedophiles as they
interacted with children. Although Jimenez moved to strike Juror 8 for
cause, the court denied the motion, finding credible the juror’s indication
that he “could be fair and impartial.” On appeal, Jimenez maintains that
Juror 8’s training and experience rendered him “clearly biased,” as

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Opinion of the Court

evidenced by his responses to questioning during jury selection. As the
party asserting error, Jimenez bears the burden of establishing Juror 8 was
“incapable of rendering a fair and impartial verdict.” State v. Acuna
Valenzuela, 245 Ariz. 197, ¶ 21 (2018) (quoting State v. Lavers, 168 Ariz. 376,
390 (1991)).

¶4 The due process right to a jury composed of unbiased,
impartial jurors is protected by the United States and Arizona constitutions,
as well as by Arizona statute and procedural rule. U.S. Const. amends. VI
& XIV, § 1; Ariz. Const. art. II, § 24; A.R.S. § 21-211; Ariz. R. Crim. P. 18.4(b);
see also Morgan v. Illinois, 504 U.S. 719, 726 (1992) (guarantee of trial by
impartial jury guaranteed independently by Sixth Amendment and by
Fourteenth Amendment’s due process clause). A trial court must excuse
prospective jurors for cause “if there is a reasonable ground to believe” they
“cannot render a fair and impartial verdict,” Ariz. R. Crim. P. 18.4(b),
including if they are “biased or prejudiced in favor of or against either of
the parties,” § 21-211(4).

¶5 “In assessing a potential juror’s fairness and impartiality, the
trial court has the best opportunity to observe prospective jurors and
thereby judge the credibility of each.” State v. Hoskins, 199 Ariz. 127, ¶ 37
(2000). Trial courts thus “retain broad discretion” to determine whether
there are reasonable grounds to doubt that a venireperson will be able to
serve as a fair and impartial juror. State v. Eddington (Eddington I), 226 Ariz.
72, ¶ 17 (App. 2010). We will not set aside a trial court’s ruling absent a
showing that the court abused that discretion. Hoskins, 199 Ariz. 127, ¶ 37;
see also Acuna Valenzuela, 245 Ariz. 197, ¶¶ 20-21.

¶6 Effective January 1, 2022, our supreme court amended the
Arizona Rules of Criminal Procedure to make Arizona the first jurisdiction
in the nation to eliminate peremptory strikes in all criminal trials. Ariz.
Sup. Ct. Order R-21-0020 (Aug. 30, 2021). Voir dire in the present case
occurred nine days later. This substantial change eliminates the power of
criminal defendants and prosecutors to strike venirepersons, including
those whom they suspect might be biased. As our supreme court has
acknowledged, the peremptory strike system played an important
“auxiliary” role in assuring a fair and impartial jury in those cases when a
trial court may have erred in failing to strike a venireperson for cause. State
v. Hickman, 205 Ariz. 192, ¶¶ 1, 31, 40 (2003). Under the amendment, our
trial courts exclusively determine the final composition of juries in criminal
cases.

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 STATE v. JIMENEZ
Opinion of the Court

¶7 The fairness and impartiality of juries “goes to the very
integrity of the legal system.” Gray v. Mississippi, 481 U.S. 648, 668 (1987).
Given these stakes, we address the approach our jurisprudence has
counseled and the tools our trial judges possess to ensure an impartial jury.
As noted by our supreme court, under certain circumstances, “[t]he
potential for an appearance of bias suffice[s] to require disqualification
regardless of any juror-specific finding of actual bias.” State v. Eddington
(Eddington II), 228 Ariz. 361, ¶ 10 (2011), aff’g 226 Ariz. 72 (App. 2010). This
is so, in part, because “protecting the appearance of fairness . . . helps instill
public confidence in the judicial system.” Id. ¶ 8.

¶8 In determining whether there is a reasonable ground to
believe that a venireperson might be unable to render a fair and impartial
verdict, our trial courts retain broad discretion to excuse or retain potential
jurors who have been challenged for cause. See Eddington I, 226 Ariz.
72,¶ 17. They may excuse potential jurors on their own motions. See Ariz.
R. Crim. P. 18.4(b). And, they have the authority to conduct voir dire of a
venireperson and allow the parties to follow up with voir dire of their own.
After that process, the court need not accept the subjective beliefs of
challenged venirepersons regarding their ability to remain unbiased. See
Eddington I, 226 Ariz. 72, ¶ 17. Rather, our trial courts may determine that
any objective factors suggesting bias alone provide reasonable grounds to
excuse the potential juror. Id. And, when the decision to excuse or retain a
potential juror presents a close question, our courts may trust that other
potential venirepersons are ready to serve if that juror is excused. See
Hickman, 205 Ariz. 192, ¶ 31 (acknowledging that such determinations
involve “shades of gray” (quoting United States v. Martinez-Salazar, 528 U.S.
304, 316 (2000))).

¶9 Here, the trial court was required to grapple with a non-trivial
motion to strike a juror for cause. Juror 8 had been a career law enforcement
officer. A substantial portion of that career involved investigating cases like
the one before the court. That task included acquiring special expertise in
assessing the truthfulness of a suspect’s claims of innocence—a claimed
aptitude especially relevant in the instant case, where Jimenez testified at
trial. Based on these facts, the trial court could have reasonably questioned
Juror 8’s objective ability to be unbiased. And, on that basis, it possessed
the broad discretion to excuse him from the panel. See Eddington I, 226 Ariz.
72, ¶ 17.

¶10 However, based on its first-hand interactions with, and
observation of, the challenged juror during extensive voir dire, the trial
court found the opposite and properly exercised its equally broad

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Opinion of the Court

discretion to retain Juror 8. The record supports the court’s conclusion that
Juror 8 could be fair and impartial. See State v. Hill, 174 Ariz. 313, 319, 321
(1993) (finding no abuse of discretion in trial court’s refusal to strike police
officer for cause).

¶11 In challenging that conclusion, Jimenez identifies two
exchanges in particular. 1 First, after Juror 8 described his training and
experience in lie detection and suspect interrogation, defense counsel asked
him whether he could “evaluate the credibility of a witness without
employing those techniques used in an interrogation room.” Juror 8
replied, “I won’t be saying anything, so yes.” Jimenez contends this
statement demonstrates Juror 8’s inability to evaluate the evidence
impartially, particularly because jurors in Arizona may participate in the
questioning of the witnesses through the submission of anonymous
questions.

¶12 Jimenez also argues Juror 8 demonstrated bias in his response
to defense counsel’s question of whether Juror 8 believed, at the time of jury
selection, that Jimenez was a “pedophile.” Juror 8 responded, “I have no
idea.” Jimenez contends this statement suggests Juror 8 did not presume
Jimenez was innocent at the outset of the trial.

¶13 Nothing in the record before us, including the two exchanges
Jimenez identifies, compelled the trial court to excuse Juror 8 for cause. “A
juror’s assurance of impartiality need not be couched in absolute terms.”
State v. Trostle, 191 Ariz. 4, 13 (1997); see also Hoskins, 199 Ariz. 127, ¶ 37.
And here, Juror 8 repeatedly asserted that he could be fair and impartial.

1We decline the state’s invitation to deem this issue waived because
Jimenez did not move to strike Juror 8 for cause immediately following the
first line of questioning about the juror’s law enforcement experience.
Jimenez requested that Juror 8 be stricken for cause because “he is going to
try to . . . use his expertise. He has demonstrated that he relies on his
training that none of the other jurors have the benefit of and that is on the
record as out-of-date.” Although this motion was made in the immediate
aftermath of questioning on interrogation techniques, Jimenez’s concern
that Juror 8 would use “his expertise” covers the general argument asserted
on appeal—that Juror 8 would be unable to overcome bias stemming from
his law enforcement background. In any event, we may in our discretion
reach an issue even if it “could be deemed waived” due to a party’s failure
to raise the issue during trial court proceedings. State v. Boteo-Flores, 230
Ariz. 551, ¶ 7 (App. 2012).

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 STATE v. JIMENEZ
Opinion of the Court

See Acuna Valenzuela, 245 Ariz. 197, ¶¶ 25-32 (“extensive questioning”
sufficed to rehabilitate challenged jurors). He stated that he could remain
impartial, that he understood the applicable burdens of proof, that he
would not give any special deference or skepticism to law enforcement
witnesses, and that every case “is individual and stands on its own.” He
noted that he had worked on “a number of cases” in which his investigation
led him to conclude the suspect “wasn’t guilty.” And, he stated that he
believed he could find Jimenez not guilty despite never, in his own career,
having made an arrest of a suspect who was ultimately acquitted of charges.
Each of these assurances of impartiality was unqualified. The court acted
within its discretion in finding them credible. See Eddington I, 226 Ariz. 72,
¶ 17.

¶14 As to the challenged juror’s professional training and
experience, Jimenez correctly notes that Juror 8 indicated he was very good
at identifying when people lie, having been trained in “detecting people’s
lies” and having personally conducted “over a thousand interviews.” Juror
8 agreed, however, that his role as a juror was not the same as his former
role as an interrogator. And, he unequivocally agreed he would be able to
evaluate witness credibility without employing interrogation-room
techniques. He further responded that when balancing his intuition against
the evidence, “[i]t’s always the evidence, always.” Under these
circumstances, the trial court acted within its discretion to accept as credible
Juror 8’s assurances that his training and experience would not impair his
impartiality. See Trostle, 191 Ariz. at 13 (no presumption that potential
jurors having served on jury that convicted in similar type of case or having
had personal experiences with violent crime would be biased); see also
Eddington I, 226 Ariz. 72, ¶ 6 (“peace officer is not automatically barred from
serving as a juror”).

¶15 We also find no clear prejudice underlying Juror 8’s statement
that he had “no idea” at that moment whether Jimenez was “a pedophile.”
So long as a prospective juror agrees to decide the case only on the evidence
presented at trial, “[e]ven a juror with preconceived notions about the
defendant’s guilt need not be excused.” State v. Anderson, 210 Ariz. 327,
¶ 28 (2005). Here, read in the context of the trial court’s instructions, as well
as Juror 8’s repeated assertions that the evidence would guide his ultimate
conclusion as to Jimenez’s guilt, we disagree that this statement signaled
that Juror 8 had either discarded the presumption of innocence or
prejudged the case. Rather, the statement “was the answer of a juror who
was willing to listen to the evidence before making up h[is] mind.” State v.
Goodyear, 98 Ariz. 304, 324-25 (1965) (after counsel inquired whether juror
presumed defendant innocent as baseline, response that juror could not

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Opinion of the Court

“make up [her] mind right now” because she did “not know enough” did
“not show that she was not fair and impartial”), reh’g granted and abrogated
on other grounds by State v. Goodyear, 100 Ariz. 244 (1966). For all of these
reasons, we affirm the trial court’s conclusion that Juror 8 credibly showed
he could render a fair, impartial verdict.

Expert Testimony

¶16 Jimenez also argues the trial court infringed on his due
process right to present a complete defense. In particular, he contends the
court erred in conditioning his presentation of expert testimony as to his
sexual normalcy on more extensive testing by a state’s rebuttal expert.
Before trial, Jimenez disclosed his intention to introduce character trait
evidence of his sexual normalcy through expert testimony. His chosen
expert, Dr. Samuels, conducted an evaluation of Jimenez over the course of
approximately six hours and created a report, which was filed under seal
with the trial court. The court denied the state’s motion to preclude Dr.
Samuels’s testimony but granted its request for a continuance to allow it to
seek its own expert to rebut that testimony.

¶17 Jimenez attended one six-hour evaluation session with the
state’s expert, Dr. Jones, but then refused to attend a second session,
claiming he had not realized additional testing would be required.
Specifically, he objected to the second session, observing that his own
expert took only one session to complete the evaluation. The state then
renewed its motion to preclude Dr. Samuels as an expert witness.

¶18 After hearing argument on the matter, the trial court directed
Jimenez that if he chose to raise the defense of sexual normalcy by
presenting Dr. Samuels’s testimony, the state would be allowed to rebut
that evidence with the testimony of its own expert witness, Dr. Jones, whose
evaluation Jimenez would be required to complete. The court reasoned the
state was not limited to merely reviewing the report of Jimenez’s expert;
rather, it was entitled to hire a separate expert to “evaluate everything and
come to an independent conclusion.”

¶19 At trial, Jimenez did not call his expert to testify regarding his
sexual normalcy. He instead presented this theory through lay witness
testimony, including that of his former romantic partner.

¶20 On appeal, Jimenez argues he “had a due process right to
present the testimony from Dr. Samuels regarding his sexual normalcy”
and the trial court erred by conditioning its admission on Jimenez
“submitting to additional testing and evaluation by the State’s expert.” He

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Opinion of the Court

further argues this ruling forced him to choose between his right to present
a complete defense and “his constitutional privilege against
self-incrimination.” We review a trial court’s evidentiary ruling for an
abuse of discretion. See State v. Snelling, 225 Ariz. 182, ¶ 18 (2010). We
review constitutional questions de novo. See State v. Armstrong, 218 Ariz.
451, ¶ 20 (2008).

¶21 Criminal defendants have a constitutional right to present a
complete defense. U.S. Const. amend. XIV, § 1; see also California v.
Trombetta, 467 U.S. 479, 485 (1984). They also enjoy a constitutional
protection against self-incrimination. U.S. Const. amend. V. However, so
long as evidentiary rules are not arbitrary or disproportionate to the
purposes they are designed to serve and do not infringe upon an accused’s
“weighty” rights, state rule makers have “broad latitude” to establish
criminal evidentiary rules. Holmes v. South Carolina, 547 U.S. 319, 324-25
(2006) (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)). Jimenez
does not challenge the constitutionality of our state’s evidentiary rules.
Rather, his argument relates to the trial court’s application of those rules.

¶22 Under Rule 404(a)(1), Ariz. R. Evid., if a criminal defendant
presents pertinent character trait evidence to show action in conformity
with that trait, the state is entitled to present evidence to rebut that claim.
Arizona courts have applied this general principle in a variety of contexts
during criminal proceedings. See State v. LaBianca, 254 Ariz. 206, ¶¶ 19-20
(App. 2022) (defendant who puts sexual normalcy at issue during Rule
404(c) hearing opens door for state rebuttal expert); Phillips v. Araneta, 208
Ariz. 280, ¶¶ 6, 8 (2004) (same, regarding mental-health-related mitigation
evidence in penalty phase of trial); State v. Rushing, 243 Ariz. 212, ¶¶ 50,
53-55 (2017) (same, because “under Phillips and its progeny, a trial court can
condition admission of a defendant’s mental health-related mitigation
evidence on his cooperation with the state’s mental health evaluation”);
State v. Schackart, 175 Ariz. 494, 499-501 (1993) (applying case law allowing
rebuttal expert testimony in insanity defense cases to expert testimony in
Rule 11, Ariz. R. Crim. P., proceedings, where mens rea at issue).

¶23 Although the parties have identified no case law specifically
addressing the factual scenario here, we see no reason our state’s more
general jurisprudence should not apply with equal force. As Schackart and
LaBianca have reasoned, “the rule that a defendant who elects to testify at
trial may not invoke the self-incrimination privilege to avoid
cross-examination” applies to a number of contexts. LaBianca, 254 Ariz. 206,
¶¶ 8 -12 (quoting Schackart, 175 Ariz. at 500). As in those cases, to “hold
otherwise would deprive the state of the only adequate means to contest

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Opinion of the Court

the conclusions of a defense psychiatric expert.” Id. (quoting Schackart, 175
Ariz. at 500). Simply put, if Jimenez “intends to offer the psychologist’s
testimony and report grounded upon a personal examination, he opens the
door to an expert examination by the State.” Id. ¶ 20.

¶24 Jimenez argues that, because sexual normalcy was not an
ultimate issue for the jury, his situation is distinguishable from those in
which courts have held that denying the state a full rebuttal expert would
unfairly prevent it from meaningfully rebutting testimony of a defense
expert. See, e.g., Schackart, 175 Ariz. at 500-01; Rushing, 243 Ariz. 212, ¶¶ 50,
53-55. But, as Jimenez himself notes, “[t]he sole defense in this case was
that [Jimenez] did not engage in the sexual conduct with PB that she
alleged,” making testimony on his sexual normalcy “both relevant and
appropriate.” See State v. Rhodes, 219 Ariz. 476, ¶ 12 (App. 2008) (lay witness
testimony as to defendant’s “sexual normalcy, or appropriateness in
interacting with children, is a character trait, and one that pertains to
charges of sexual conduct with a child”). Under these circumstances,
preventing the state from rebutting that testimony “would deprive the state
of the only adequate means to contest the conclusions of a defense
psychiatric expert,” Schackart, 175 Ariz. at 500, on a highly relevant defense
theory in what is, ultimately, a case built on conflicting narratives. After
all, our criminal rules “generally establish reciprocal discovery rights,
which are ‘intended to further the concept that a defendant is not entitled
to an unfair advantage in the presentation of his defense.’” LaBianca, 254
Ariz. 206, ¶ 11 (quoting Cabanas v. Pineda, 246 Ariz. 12, ¶ 25 (App. 2018)).
The state’s “only adequate means” of contesting Jimenez’s expert’s
testimony would have been “allowing the State’s expert to examine”
Jimenez, as well. Id. ¶ 12.

¶25 We are unpersuaded by Jimenez’s argument that he “had
already submitted to testing” by the state and its “request for further testing
was unreasonable under the circumstances.” He argues in particular that
standard evaluations for sexual normalcy run for approximately six hours
and the state’s expert’s request for several hours of evaluation beyond that
was unreasonable. But, as the trial court reasoned, an expert is entitled to
conduct an examination that meets his or her professional standards. See
State ex rel. Adel v. Hannah, 250 Ariz. 426, ¶ 21 (App. 2020) (in accordance
with psychological ethical codes, state’s “expert must be allowed to conduct
the scope of examination, including testing, he believes ethically necessary
to provide adequate support for his opinions”). The court did not abuse its
discretion in so concluding.

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Opinion of the Court

¶26 Finally, a trial court may preclude expert testimony if a
defendant refuses to cooperate with a court-ordered mental health
examination. Phillips, 208 Ariz. 280, ¶ 15. Here, over the state’s objection,
the trial court ruled the testimony of Jimenez’s proffered expert admissible.
The court imposed conditions on the admission of that testimony only after
Jimenez refused to attend the second day of court-ordered testing. Under
these circumstances, we find no abuse of discretion in the court’s ruling as
to Jimenez’s expert’s testimony. See id. ¶ 16 (refusal to submit to
court-ordered mental health examination “closely analogous” to preclusion
sanctions provided by Rule 15.7, Ariz. R. Crim. P.).

Disposition

¶27 For the foregoing reasons, we affirm Jimenez’s conviction and
sentence.

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