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State v. Sexton11/2/1989
pp.1987).
Here, the record is clear that Mrs. Ostrander never gave such assurances regarding the questions posed to her. Rather, she twice stated her misgivings regarding her bias against people who drink and her inability to be impartial. The trial judge erred in refusing to strike her for cause.
The state contends that this failure was harmless error because Mrs. Ostrander was dismissed by a peremptory challenge anyway. The state relies on Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), for the proposition that a peremptory challenge is not a federal constitutional right. In this view an erroneous refusal to strike a potential juror for cause does not invalidate the conviction as long as the jurors who heard the case were impartial. Under Ross, as long as there is no "suggestion" that any of the jurors who actually heard the case were biased, the error does not abridge the accused's right to an impartial jury under the Sixth and Fourteenth Amendments. In interpreting Oklahoma law, that Court also held that the error there did not abridge the accused's Fourteenth Amendment right to due process by reducing the full complement of peremptory challenges allowed by state law, since Oklahoma law requires a defendant to use a peremptory challenge to cure a trial court's refusal to remove a juror for cause.
Our case differs from Ross. Unlike Oklahoma, Arizona law does not require a defendant to use peremptory challenges to cure a trial court's erroneous refusal to strike a juror for cause. The rule in Arizona is that the right to peremptory challenges is so substantial that forcing a party to use a peremptory challenge to strike potential jurors who should have been stricken for cause denies the litigant a substantial right. Wasko v. Frankel, 116 Ariz. 288, 569 P.2d 230 (1977); State v. Thompson, 68 Ariz. 386, 206 P.2d 1037 (1949). Thus, the trial court's error in refusing to strike Mrs. Ostrander for cause was not harmless error.
2. SENTENCING AS A DANGEROUS OFFENDER
Appellant was sentenced under A.R.S. § 13-604 as a dangerous offender for his use of a dangerous instrument, his car. The Arizona Supreme Court has held that an automobile cannot be characterized as a dangerous instrument in a prosecution for driving while intoxicated because it is a defining element of the crime charged, i.e., aggravation needs to be something beyond the definition of the crime. State v. Orduno, 159 Ariz. 564, 769 P.2d 1010 (1989). The state concedes error which would require resentencing. Our reversal on the issue of jury selection moots that remedy.
For the foregoing reasons, the conviction is reversed and this matter remanded to the trial court with directions to grant appellant a new trial.
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