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State v. Hopkins8/18/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
AFFIRMED
Appellant Kevin Brian Hopkins was convicted after a jury trial of aggravated driving under the influence of an intoxicant (DUI) while his license was suspended and aggravated driving with an alcohol concentration of.10 or more while his license was suspended, both class four felonies. The trial court found he had two prior DUI convictions and sentenced him to a presumptive term of 4.5 years in prison. Hopkins contends the trial court erred by denying his motion to strike the jury panel and by considering improper factors at sentencing. We do not agree and affirm.
We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the convictions. State v. Riley, 196 Ariz. 40, 992 P.2d 1135 (App. 1999). Around midnight on October 30, 2000, Deputy Michael Canizales saw Hopkins's vehicle swerving on a two-lane road. Hopkins stopped for a red light at an intersection, but when the light turned green, he did not move. Hopkins made a right turn after sitting through most of the green light, and Canizales activated his overhead lights and stopped the vehicle. Hopkins was unable to produce a driver's license. Canizales smelled alcohol on Hopkins's breath and saw that his eyes were red, bloodshot, and watery. Hopkins agreed to perform field sobriety tests and told Canizales he knew he should not have been driving. When Hopkins refused to take a breath or blood test, Canizales obtained a search warrant and had blood drawn from Hopkins. A test of the blood sample showed Hopkins's alcohol concentration was.175.
We first consider the court's refusal to strike the jury panel. We review a trial court's refusal to strike a jury panel for an abuse of discretion. State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981). During voir dire, one of the prospective jurors stated,
I was married to a Tucson police officers for thirty years and my, you know, I could not be considering anything with this gentleman where -- I can see paying my ex-husband to arrest him once, but I have to say what is so special about him that he's back here again involving the whole court system and that for the same thing.
The trial court excused this juror for cause. Hopkins later asked the court for a new panel on the ground that the prospective juror's remarks had "infected" the whole panel. The trial court denied the request and later commented that the statements had not been so substantially prejudicial to warrant taking any action, including admonishing the jury to ignore them.
"'An accused has a constitutional right to be tried by a fair and impartial jury.'" State v. Doerr, 193 Ariz. 56, , 969 P.2d 1168, (1998), quoting Greenawalt, 128 Ariz. at 167, 624 P.2d at 845. Unless there are objective indications that a juror's remarks prejudiced the defendant, we will not presume they did. See Doerr. A defendant has the burden of showing that the remarks of an excused juror prejudiced the other prospective jurors. Id. Unless the record affirmatively shows that a fair and impartial jury was not empaneled, the conviction must be affirmed. State v. Arnett, 119 Ariz. 38, 579 P.2d 542 (1978). Hopkins argues that the remarks of the excused prospective juror implied that her former husband had previously arrested him, therefore leading the panel to believe that she had inside information about Hopkins's prior history. We conclude that characterization is an exaggeration of her remark. In fact, the trial court asked the panel if anyone had heard about the case, and none of the prospective jurors responded to the question.
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