State v. Ibanez

SUPPLEMENTAL DECISION ORDER HALL, J. ¶ 1 In State v. Ibanez, 201 Ariz. 56 , 31 P.3d 830 (App.2001), applying the automatic-reversal rule for erroneous denials of challenges for cause adopted by the Arizona Supreme Court in State v. Huerta, 175 Ariz. 262 , 855 P.2d 776 (1993), we reversed defendant’s convictions for aggravated DUI and remanded for a new trial. The supreme court has remanded this case for our reconsideration in light of its recent decision in State v. Hickman, 205 Ariz. 192 , 68 P.3d 418 (2003), overruling Huerta’s automatic-reversal rule. ¶2 Upon reconsideration, we find Hickman controlling because defendant, as did Hickman, used one of his peremptory challenges to cure the court’s error; therefore, “an objectionable juror was not forced upon him.” Id. at 201, ¶ 41 , 68 P.3d at 427 . Thus, the trial court's error in refusing to dismiss juror N.D. is subject to harmless-error analysis. Id. at 198, ¶ 28 , 68 P.3d at 424 . ¶ 3 Defendant does not contend that the jury that convicted him was not fair and impartial; hence, we find that the trial court’s error in failing to excuse the juror was harmless. Because the Huerta error *425 was the sole issue raised by defendant on appeal, we vacate our previous opinion and now affirm defendant’s convictions and sentences. EHRLICH, Acting P.J. and WEISBERG, J., concurring.