Arizona Supreme Court Announces Cumulative Error Framework for Reviewing Multiple Instances of Prosecutorial Misconduct
A jury found Luis Armando Vargas guilty of several offenses, including first-degree murder. 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 failed to object to the alleged misconduct, appellate counsel argued that the Court of Appeals should review the claim for fundamental error. Counsel supported this claim with 11 instances of alleged misconduct.
For all but three of the alleged instances of misconduct, the Court of Appeals concluded the argument waived because Vargas failed to set forth that each of those instances, by itself, was fundamental error. For each of these conclusions, the Court of Appeals relied on State v. Moreno-Medrano, 185 P.3d 135 (App. 2008). It concluded Vargas failed to establish cumulative error based on misconduct and affirmed. The Arizona Supreme Court accepted review.
The Court observed that Arizona Rule of Criminal Procedure 31.10(a)(7) sets out the procedure for properly raising and developing a claim of error on appeal in the opening brief: “(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 appellant relies ... (B) for each issue ... the applicable standard of appellate review with citation to supporting legal authority.”
The Court also considered the framework of State v. Escalante, 425 P.3d 1078 (Ariz. 2018): “[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 ... (3) the error was so egregious that he could not possibly have received a fair trial.... 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.”
The Court then formulated a framework, based on Rule 31.10(a)(7) and Escalante, for when a defendant raises a claim that the cumulative effect of multiple instances of prosecutorial misconduct, for which he failed to object, deprived him of a fair trial. The Court announced 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, the Court instructed. Nor does a defendant need to argue that the trial court committed fundamental error by failing to sua sponte grant a new trial in each instance.
Applying this framework to Vargas’ claim, the Court concluded he complied with the procedural requirements of properly presenting the claim, i.e., he asserted cumulative error; he cited specific instances of misconduct from the record with legal authority establishing that the incidents constituted misconduct; and he alleged the overall cumulative effect denied him a fair trial. But whether he carried his burden of persuasion that misconduct did occur for each allegation and that they cumulatively denied him a fair trial was for the Court of Appeals to determine on remand.
Finally, the Court disproved of Moreno-Medrano to the extent that it could be read to mean that appellants must explicitly argue that each instance of prosecutorial misconduct was “fundamental error.” A claim of cumulative error resulting from multiple instances of misconduct is one claim (not multiple claims) of fundamental error caused by the combined effect of the multiple instances of misconduct, the Court explained.
Related legal case
State v. Vargas
|2020 Ariz. LEXIS 226 (2020)
|State Supreme Court