Aggravated DUI Jury Trial | Juror Strikes for Cause

A note before we start: This was a felony aggravated DUI case tried in Superior Court. My own practice focuses on misdemeanor DUI and misdemeanor criminal charges in Arizona’s Municipal and Justice Courts. I’m writing about this case for educational purposes because the jury-selection lessons apply to any DUI jury trial in Arizona, including misdemeanor cases. Also, because it is a memorandum (unpublished) decision, it is not binding precedent; under Arizona Supreme Court Rule 111(c), it can be cited only for limited persuasive purposes.

What happened in State v. Cunnington?

Joshua Cunnington was charged with two counts of aggravated DUI under A.R.S. § 28-1383(A)(4). On the first day of trial, the prosecutor put a plea offer on the record outside the jurors’ presence: plead guilty to one count and face six to ten years in prison. If convicted at trial, he faced at least ten years on each count. He turned the offer down.

The problem was that potential jurors had been waiting in the hallway. Several of them overheard an emotional conversation between Cunnington, his attorney, and his mother, who was crying and urging him to take the deal. One juror recalled her saying she would see him in “like, 15 years.”

How did the judge handle it?

Once a juror raised the issue, the judge questioned prospective jurors one at a time about what they had heard:

• Three jurors were removed. Each had either said they might not be impartial or had heard a specific prison term (like “10 or 15 years”).
• Five jurors who heard something were kept. They had picked up words like “plea,” tension, or crying, and each told the judge it would not affect their fairness. One of them ended up as an alternate.
• Five more jurors were asked as a group whether they heard “any part of a discussion” between the defendant and his lawyer. None said yes.

Defense counsel did not object to any of the seated jurors and passed the panel for cause. After a four-day trial, the jury convicted on both counts, and the court imposed concurrent ten-year prison sentences.

What was the legal question on appeal?

On appeal, Cunnington argued the jury was “irrevocably tainted.” His theory: jurors who knew his mother wanted him to plead guilty would assume even his own family thought he was guilty. He called this structural error, the kind of mistake so serious that a conviction gets reversed automatically, without proving it actually affected the verdict.

Can jurors who overhear a rejected plea deal still serve on an Arizona jury?

Yes, according to this decision, as long as the judge reasonably concludes they can be fair. Under Arizona Rule of Criminal Procedure 18.4(b), a judge must excuse a juror only when there is a “reasonable ground” to believe the juror cannot be fair and impartial. Appellate courts review that decision for an abuse of discretion, which gives trial judges a lot of room.

Does a family member urging a plea mean the defendant is guilty?

No. The court pointed out that people plead guilty for many reasons other than actual guilt, such as avoiding the risk of a much longer sentence. A juror learning that a mother wanted her son to accept a deal does not, by itself, make that juror biased.

Did the judge have to remove those jurors on his own?

No. Every seated juror said they could be fair, and nothing in the record gave the judge a reason to doubt them. Trial judges get significant deference in judging whether a juror is credible, so the court was not required to strike anyone without a request from the defense.

Why didn’t cases from other states help the defense?

The defense relied on cases from West Virginia, Texas, and Mississippi where convictions were reversed. The Court of Appeals found those cases very different. In most of them, the judge or the prosecutor told the jury about the plea, and in some cases implied the defendant was guilty or was gambling on a trial. Nothing like that happened here. The closest case, from Mississippi, involved a juror who read about plea talks in the newspaper but promised to stay fair, and that conviction was upheld too.

The court also noted something that actually cut in Cunnington’s favor at trial: the jurors learned he refused the plea, even after his mother’s emotional appeal. That suggests a person insisting on his right to trial, not one admitting guilt.

Did the judge have to question every juror individually?

No. The defense argued that asking five jurors as a group wasn’t the “thorough oral examination” Rule 18.5(f) requires. The court disagreed. When a juror gives a clear answer (“I didn’t hear anything”), the rule does not require the judge to dig further. If the defense wanted more questioning, it had every chance to ask for it at trial.

Why did not objecting at trial matter so much?

This is the most important practical lesson in the case. Because defense counsel did not object during jury selection, the appeal was reviewed only for fundamental error. That means the defendant had to prove an error occurred, that it was fundamental, and that the jury could have reached a different verdict without it. The court said that standard is not easily met and excludes “imaginative guesswork.”

For example, the defense argued that jurors who overheard the hallway conversation may have discussed it with jurors who didn’t. The court called that speculation. As the court put it, had the defense objected at the time, the record might have supported the argument. Without that record, the claim went nowhere.

Why were some jurors removed but others kept?

The defense argued there was no rational line between the jurors who were struck and those who stayed. The court found a clear line: the struck jurors had heard a specific prison sentence. In Arizona, jurors are not supposed to consider punishment when deciding guilt, so learning about a possible “10 or 15 years” was a legitimate reason to remove them. (If you want to understand what sentences Arizona DUI charges actually carry, see my page on DUI penalties in Arizona.)

As for the one juror the judge may have improperly “rehabilitated” by explaining that a defendant can’t take a plea and go to trial at the same time, the court said it didn’t matter: that juror was an alternate who never deliberated.

Reviewed by Gordon Thompson, Arizona State Bar licensed attorney, October 2026. This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. Every case is different; consult an attorney about your specific situation.