Defendant's Right to Be Present During Peremptory Challenges
"The decision to refuse a jury instruction is within the trial court's discretion, and this court will not reverse it absent a clear abuse of that discretion." State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995).
Under Rule 19.2 of the Arizona Rules of Criminal Procedure, a defendant has a right to be present at every stage of the trial, "including the impaneling of the jury."
The right to be present at critical stages of the proceedings, including jury selection, also is guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. State v. Garcia- Contreras, 191 Ariz. 144, 147, P8, 953 P.2d 536, 538 (1998); State v. Levato, 186 Ariz. 441, 443, 924 P.2d 445, 447 (1996).
Arizona Court previously has held that a trial court may rely on counsel's waiver of a defendant's right to be present during peremptory challenges; personal waiver by the defendant is not required. State v. Collins, 133 Ariz. 20, 23, 648 P.2d 135, 138 (App. 1982).
"Unless the circumstances are exceptional, a defendant is bound by his counsel's waiver of his constitutional rights," even without a showing that the attorney consulted with the defendant. Id. (citing Henry v. Mississippi, 379 U.S. 443, 13 L. Ed. 2d 408, 85 S. Ct. 564 (1965)).