State v. Vargas

• Citation: 468 P.3d 739,249 Ariz. 186
• Decision Date: 31 July 2020
• Docket Number: No. CR-19-0071-PR,CR-19-0071-PR
• Parties: STATE of Arizona, Appellee, v. Luis Armando VARGAS, Appellant.
• Court: Supreme Court of Arizona

249 Ariz. 186

468 P.3d 739

STATE of Arizona, Appellee,

v.Luis Armando VARGAS, Appellant.

No. CR-19-0071-PR

Supreme Court of Arizona.

Filed July 31, 2020

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz (argued), Chief Counsel, Criminal Appeals Section, Michael T. O'Toole, Assistant Attorney General, Phoenix, Attorneys for State of Arizona

Joel Feinman, Pima County Public Defender, Erin K. Sutherland (argued), Deputy Public Defender, Tucson, Attorneys for Luis Armando Vargas

JUSTICE MONTGOMERY authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES BOLICK, GOULD, LOPEZ, and BEENE joined.

JUSTICE MONTGOMERY, opinion of the Court:

¶1 A defendant presenting an appellate claim of fundamental error due to prosecutorial misconduct may base his claim on a single alleged instance of misconduct or he may allege that multiple instances occurred, which cumulatively amount to fundamental error. In either case, the defendant must establish that misconduct occurred. We hold today that a defendant claiming fundamental error due to cumulative prosecutorial misconduct does not have to assert fundamental error for every allegation in order to preserve for review the argument that misconduct occurred. In doing so, we disapprove of State v. Moreno-Medrano , 218 Ariz. 349, 185 P.3d 135 (App. 2008), as authority to the contrary.

I.

¶2 A jury found Luis Armando Vargas guilty of several offenses, including first degree murder, resulting in a sentence of natural life in prison with a consecutive term of imprisonment.

¶3 On appeal, Vargas argued that the prosecutor engaged in a "pervasive pattern of misconduct [that] cumulatively deprived [him] of his right to a fair trial." Because trial counsel did not object to the alleged misconduct at trial, appellate counsel argued that the court of appeals should review the claim of cumulative misconduct for fundamental error. He began his argument by setting forth the standard of review for fundamental error and asserting that the allegations of misconduct must be considered collectively, stating:

When a defendant objects to an alleged act of prosecutorial misconduct, the issue is preserved; when a defendant fails to object, the court engages in fundamental error review. ... Even if the alleged acts of misconduct do not individually warrant reversal, the court must determine whether the acts contribute to a finding of persistent and pervasive misconduct.

¶4 To support his claim, Vargas alleged eleven different instances of purported misconduct, some involving multiple acts. For each allegation, he cited to the record where it occurred and cited legal authority to support that each instance constituted misconduct. He did not, however, argue that each allegation standing alone was fundamental error. Instead, Vargas argued that "[a]lthough certain instances of misconduct may not have caused great harm, when the cumulative effect is considered, it is evident that Luis Vargas was denied his right to a fair trial." He concluded by reiterating that the alleged misconduct "amounted to fundamental prejudicial error" and that the court of appeals "must reverse his convictions and remand the case for a new trial."

¶5 The State responded that Vargas waived his right to challenge most of the instances of alleged misconduct because he had failed to object at trial and he had not argued fundamental error as to each allegation on appeal. Vargas replied that, with respect to the specific instances in question, he had "indicated from the outset that no objection was made at trial and fundamental error review applied."

¶6 For all but three of the alleged incidents of misconduct cited by Vargas, the court of appeals concluded that because he failed to set forth an argument of fundamental error for each allegation, he waived argument that error occurred. State v. Vargas , No. 2 CA-CR 2016-0324, 2019 WL 366444, at *3–8 ¶¶ 13–14, 20–21, 23, 25, 27, 32, 39–40, 42 (Ariz. App. Jan. 29, 2019) (mem. decision). For each of these conclusions, the court cited to Moreno-Medrano , 218 Ariz. at 354 ¶ 17, 185 P.3d at 140, which held that the failure to argue an alleged error was fundamental waives the argument for appellate review. Id. The court ultimately concluded that Vargas failed to successfully argue misconduct for any of his allegations, including the three resolved without a citation to Moreno-Medrano . Id. at *2 ¶ 9. Accordingly, the court concluded he also failed to establish cumulative error based on misconduct. Id. After considering other issues raised by Vargas, the court affirmed his convictions and sentences. Id. at *13 ¶ 64.

¶7 We accepted review to address whether a defendant may preserve consideration of individual instances of misconduct for cumulative error review without also separately arguing fundamental error for each allegation. This is an issue of recurring statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.

II.

¶8 Vargas argues that the court of appeals erred in concluding that he failed to establish any prosecutorial misconduct and therefore also erred in concluding there was no cumulative error.

¶9 "[W]e review the interpretation of court rules de novo and apply principles of statutory construction when doing so." State v. Winegardner , 243 Ariz. 482, 484 ¶ 5, 413 P.3d 683, 685 (2018) (internal citations omitted).

A.

1.

¶10 To properly raise and develop a claim of error on appeal, Arizona Rule of Criminal Procedure 31.10(a)(7) states that a defendant's opening brief must include:

(A) appellant's contentions with supporting reasons for each contention, and with citations of legal authorities and appropriate references to the portions of the record on which the appellant relies. The argument may include a summary.

(B) for each issue, references to the record on appeal where the issue was raised and ruled on, and the applicable standard of appellate review with citation to supporting legal authority.

¶11 Before addressing whether Vargas adequately developed his claim of cumulative error, we note that cases addressing similar claims based on prosecutorial misconduct have not presented a consistent framework for review.¹ Compare State v. Hughes , 193 Ariz. 72, 79 ¶ 26, 969 P.2d 1184, 1191 (1998) (discussing the cumulative effect doctrine regarding prosecutorial misconduct in general and making no distinction between harmless and fundamental error review in considering misconduct claims), with State v. Bocharski , 218 Ariz. 476, 491–92 ¶ 74, 189 P.3d 403, 418–19 (2008) (making an explicit distinction between the standard of review if the defendant has objected to error or not); compare Roque , 213 Ariz. at 228 ¶ 155, 141 P.3d at 403 (2006) (stating that after reviewing an allegation for error, a court must then assess whether to include it for cumulative error review before then evaluating allegations for cumulative error), with Hulsey , 243 Ariz. at 388 ¶ 88, 408 P.3d 408 (2018) (citing to Roque , but only reviewing established claims of error for cumulative error).

¶12 To harmonize our case law and preclude any confusion regarding the showing a defendant must make when claiming cumulative error based on prosecutorial misconduct, we initially direct litigants and appellate courts to utilize the framework set forth in State v. Escalante :

[T]he first step in fundamental error review is determining whether [ ] error exists. If it does, an appellate court must decide whether the error is fundamental. ... A defendant establishes fundamental error by showing that (1) the error went to the foundation of the case, (2) the error took from the defendant a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial. If the defendant establishes fundamental error under prongs one or two, he must make a separate showing of prejudice. ... If the defendant establishes the third prong, he has shown both fundamental error and prejudice, and a new trial must be granted. The defendant bears the burden of persuasion at each step.

245 Ariz. 135, 142 ¶ 21, 425 P.3d 1078, 1085 (2018) (internal citations omitted).

¶13 Consistent with the third prong of Escalante , a defendant claiming cumulative error based on prosecutorial misconduct need not separately assert prejudice since a successful claim necessarily establishes the unfairness of a trial. See, e.g. , Roque , 213 Ariz. at 228 ¶ 152, 141 P.3d at 403 (characterizing a successful claim of prosecutorial misconduct as one where the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process") (quoting Hughes , 193 Ariz. at 79 ¶ 26, 969 P.2d at 1191 ). Nonetheless, if a defendant simply asserts a general claim of error on appeal and fails to develop it, a court is not obligated to consider it. See State v. Carver , 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) ("Failure to argue a claim usually constitutes abandonment and waiver of that claim.").

¶14 Accordingly, where a defendant raises a claim on appeal that multiple incidents of prosecutorial misconduct, for which he failed to object, cumulatively deprived him of a fair trial, consistent with Rule 31.10(a)(7) and Escalante , the defendant must: 1) assert cumulative error exists; 2) cite to the record where the alleged instances of misconduct occurred; 3) cite to legal authority establishing that the alleged instances constitute prosecutorial misconduct; and 4) set forth the reasons why the cumulative misconduct denied the defendant a fair trial with citation to applicable legal authority. The defendant is not required to argue that each instance of alleged misconduct individually deprived him of a fair trial. Likewise, a defendant need not argue that the trial court committed fundamental error by failing to sua sponte grant a new trial in each instance.

2.

¶15 Applying this framework to Vargas's appellate claim of...