State v. Murray, 2 CA-CR 2018-0312

• Citation: 454 P.3d 1018,247 Ariz. 583
• Decision Date: 05 December 2019
• Docket Number: No. 2 CA-CR 2018-0312,2 CA-CR 2018-0312
• Parties: The STATE of Arizona, Appellee, v. Claudius C. MURRAY, Appellant.
• Court: Court of Appeals of Arizona

247 Ariz. 583

454 P.3d 1018

The STATE of Arizona, Appellee,

v.Claudius C. MURRAY, Appellant.

No. 2 CA-CR 2018-0312

Court of Appeals of Arizona, Division 2.

Filed December 5, 2019

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Amy M. Thorson, Assistant Attorney General, Tucson, Counsel for Appellee

Law Office of Hernandez & Hamilton PC, Tucson, By Joshua F. Hamilton, and Carol Lamoureux, Counsel for Appellant

Presiding Judge Staring authored the opinion of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.

STARING, Presiding Judge:

¶1 Claudius Murray appeals from his conviction and sentence for aggravated assault with a deadly weapon or dangerous instrument. In this opinion, we address Murray’s allegations of prosecutorial misconduct.¹ Because only this issue from Murray’s appeal merits publication, we have addressed his other arguments in a separate, unpublished memorandum decision issued simultaneously. See Ariz. R. Sup. Ct. 111(h) ; Ariz. R. Crim. P. 31.19(f). For the following reasons, as well as the reasons discussed in the memorandum decision, we affirm Murray’s conviction and sentence.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the jury’s verdict and resolve all reasonable inferences against Murray. See State v. Felix , 237 Ariz. 280, ¶ 30, 349 P.3d 1117 (App. 2015). In December 2016, Murray and his brother Easton went to O.C.’s apartment. Murray was carrying a firearm and Easton was carrying a black bag. The brothers asked O.C. to store some marijuana for them, but O.C. refused and asked them to leave. An argument ensued, and then Easton and O.C. began fighting. During the fight, Easton shocked O.C. with a taser. Murray attempted to pull O.C. off of Easton but was unsuccessful. Easton then told Murray to shoot O.C. and Murray shot O.C. in the leg. O.C. managed to escape into his apartment, and Murray and Easton "ran off."

¶3 O.C.’s neighbor heard men arguing in a foreign language. He then saw two men trying to force their way into O.C.’s apartment and heard two or three gunshots followed by footsteps running away.

¶4 O.C. was treated for a bullet wound

to his leg. Officers found a shell casing matching Murray’s gun outside O.C.’s apartment. Police also found an eight-pound bale of marijuana, scales, cell phones, and packing and shipping materials inside O.C.’s apartment. O.C. claimed the marijuana was not his and the brothers had previously left the scales and shipping materials at his apartment.

¶5 Following a jury trial, Murray was convicted of aggravated assault with a deadly weapon or dangerous instrument committed by intentionally, knowingly, or recklessly causing physical injury in violation of A.R.S. § 13-1204(A)(2).² The trial court denied Murray’s motion for new trial and sentenced him to a mitigated five-year term of imprisonment.

¶6 This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Discussion

¶7 Murray contends the state committed prosecutorial misconduct by: (1) making inappropriate and irrelevant references to Murray’s nationality; (2) misstating the evidence by claiming O.C.’s testimony was corroborated by "numerous" facts and witnesses and making unsupported and prejudicial remarks about Murray; and (3) misstating the law regarding intent, flight, self-defense, and the burden of proof.

¶8 Prosecutorial misconduct is "intentional conduct which the prosecutor knows to be improper and prejudicial" and that "is not merely the result of legal error, negligence, mistake, or insignificant impropriety." State v. Martinez , 221 Ariz. 383, ¶ 36, 212 P.3d 75 (App. 2009) (quoting Pool v. Superior Court , 139 Ariz. 98, 108, 677 P.2d 261 (1984) ). "To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that ‘(1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury’s verdict, thereby denying defendant a fair trial.’ " State v. Moody , 208 Ariz. 424, ¶ 145, 94 P.3d 1119 (2004) (quoting State v. Atwood , 171 Ariz. 576, 606, 832 P.2d 593 (1992) ). Reversal is warranted when prosecutorial misconduct "so permeated the trial that it probably affected the outcome and denied [the] defendant his due process right to a fair trial." State v. Blackman , 201 Ariz. 527, ¶ 59, 38 P.3d 1192 (App. 2002).

¶9 "We evaluate each instance of alleged misconduct," State v. Morris , 215 Ariz. 324, ¶ 47, 160 P.3d 203 (2007), and then consider the cumulative effect on the fairness of Murray’s trial, see State v. Hughes , 193 Ariz. 72, ¶ 26, 969 P.2d 1184 (1998). "[T]he standard of review depends upon whether [Murray] objected." Morris , 215 Ariz. 324, ¶ 47, 160 P.3d 203. When a defendant has objected at trial, we review allegations of misconduct for harmless error; however, when a defendant fails to object to any of the alleged instances of prosecutorial misconduct, we review only for fundamental error. State v. Escalante , 245 Ariz. 135, ¶ 12, 425 P.3d 1078 (2018) ;³ State v. Sanders , 245 Ariz. 113, ¶ 91, 425 P.3d 1056 (2018).

Murray’s Nationality

¶10 Murray argues the state made "inappropriate and irrelevant" references throughout trial to the fact he is from Jamaica. In addition, he argues the references to his nationality were especially prejudicial in light of the state’s presentation of marijuana-related evidence and such references "only served to invoke and inflame preexisting stereotypes that the jury might have about Jamaican involvement in marijuana shipping."

¶11 While references to nationality are generally improper and inherently prejudicial under certain circumstances, we do not find that to be the case here. See generally State v. Filipov , 118 Ariz. 319, 576 P.2d 507 (App. 1977) ; see also United States v. Rodriguez Cortes , 949 F.2d 532, 540-43 (1st Cir. 1991) (reversing conviction where nationality evidence of dubious relevance, prosecutor appealed to nationality-based prejudice in closing arguments, and case was otherwise a "very close case"). During trial, O.C.’s neighbor testified he heard an argument outside of his apartment, but could not understand what was being said because "it was off into [a] foreign language." In addition, O.C. testified that on the night he was shot, he, Murray, and Easton were speaking their native language, Jamaican Patois. As Murray acknowledges, evidence he could speak Jamaican Patois was relevant to explain O.C.’s neighbor’s testimony about the argument he overheard. Thus, references to Murray’s Jamaican nationality were neither irrelevant nor improper—they were intertwined with evidence of him speaking his native language.

¶12 And, contrary to Murray’s claim, the state’s comments and questions about his nationality did not serve to invoke and inflame jury prejudice; the state did not make any statements tying Jamaica to the drug trade or inviting the jury to draw improper conclusions based on nationality. See United States v. Doe , 903 F.2d 16, 20, 27-28 (D.C. Cir. 1990) (argument improper and prejudicial where state argued Jamaicans taking over drug trade strongly suggested Jamaican defendants were guilty). Thus, the state’s references to Murray’s nationality did not constitute misconduct.

Misrepresentation of Evidence

¶13 Murray next argues the state "repeatedly made inappropriate comments and arguments about the evidence that were not supported by the record" during closing argument. "Opposing counsel must timely object to any erroneous or improper statements made during closing argument or waive his right to the objection, except for fundamental error." State v. Cook , 170 Ariz. 40, 51, 821 P.2d 731 (1991) (quoting State v. Smith , 138 Ariz. 79, 83, 673 P.2d 17 (1983) ).

¶14 "Counsel is given wide latitude in closing argument to comment on the evidence and argue all reasonable inferences from it." Moody , 208 Ariz. 424, ¶ 180, 94 P.3d 1119 (internal citations omitted). "Unlike opening statements, during closing arguments counsel may summarize the evidence, make submittals to the jury, urge the jury to draw reasonable inferences from the evidence, and suggest ultimate conclusions." State v. Bible , 175 Ariz. 549, 602, 858 P.2d 1152 (1993). And, courts should look to the context in which the statements were made, as well as the entire record and the totality of the circumstances. State v. Goudeau , 239 Ariz. 421, ¶ 196, 372 P.3d 945 (2016). Further, arguments made by counsel generally carry less weight than instructions from the court, which "are viewed as definitive and binding statements of the law," while arguments by counsel "are usually billed in advance to the jury as matters of argument, not evidence ... and are likely viewed as the statements of advocates." Boyde v. California , 494 U.S. 370, 384, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990).

Corroboration of O.C.’s Testimony

¶15 Murray argues the state mischaracterized and misstated the evidence during closing argument in an attempt to overcome O.C.’s "significant credibility issues." Specifically, he argues it was improper for the state to indicate O.C.’s story was credible because it was corroborated by "numerous facts, numerous witnesses" when "none of the witnesses corroborated [O.C.] on the most contested issues, including what occurred during the scuffle." Murray also challenges the state’s argument that drug-related evidence corroborates O.C.’s testimony and the state’s comment that O.C. did not "have the best command of the English language."

¶16 Murray asserts the state should not have suggested the firearms examiner "confirmed" O.C.’s testimony implicating Murray as the shooter because the examiner confirmed only that the shell casing found outside O.C.’s apartment was from the same gun Murray surrendered to the police. As the state points out, however, its argument about the firearm analysis must be read in context....