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Arizona Supreme Court Clarifies Proper Fundamental Error Review Applicable to Allegation of a Single, Unobjected-to Instance of Prosecutorial Misconduct

by Douglas Ankney

The Supreme Court of Arizona clarified the error review that is applicable when an appellant alleges a single instance of prosecutorial misconduct and no objection was made to the alleged misconduct at trial.

According to the testimony of the victim, identified as “O.C.,” brothers Easton and Claudius Murray wanted to store a bag at O.C.’s apartment. (Claudius was O.C.’s former roommate.) O.C. suspected the bag contained marijuana and refused. Easton then insulted O.C. and shocked him with a Taser. While the two men scuffled, and at Easton’s insistence, Claudius shot O.C. in the leg with a rifle. The Murray brothers then fled the scene.

Following the shooting, police searched O.C.’s apartment, finding an eight-pound bale of marijuana and paraphernalia indicative of sales and distribution. O.C. testified that he did not own the marijuana but that the Murray brothers stored their marijuana and distribution paraphernalia at his apartment.

The defense strategy was to assail O.C.’s credibility and argue the gunshot wound was self-inflicted. They argued that O.C. had been granted immunity from any drug-offense prosecution in exchange for his testimony as well as the State’s assistance in delaying his deportation. Defense also pointed out O.C.’s inconsistencies, e.g., he had never mentioned a Taser before trial and no Taser had ever been recovered.

During closing arguments, the prosecutor explained that reasonable doubt “is a firmly convinced standard” that imposes “a high burden of proof.” Following the defense’s closing argument, the prosecutor stated in his rebuttal:

“So here is how to think when you might hear somebody say back there, well, I think one or both defendants might be guilty but I’m not sure it’s beyond a reasonable doubt. Now, stop and ask yourself another question at that point. Why did I just say that? Why did I just say that I think the defendants might be guilty? You are a fair and impartial juror. If you are thinking that, if you are saying that, is it not proof you have been persuaded by the evidence in the case beyond a reasonable doubt?”

The defense did not object to the prosecutor’s statement. Neither did the trial court comment on it other than to advise the jury that “[w]hat the lawyers say is not evidence, but it may help you to understand the law and the evidence.” The jury convicted the Murray brothers of aggravated assault and sentenced each to five years’ imprisonment. The court of appeals (“COA”) affirmed their convictions. The Arizona Supreme Court granted review, consolidating their appeals to determine the applicable standard of review when a prosecutor makes a single but material misstatement of the reasonable-doubt standard, without objection, during rebuttal argument.

The Court observed “[a] prosecutor’s misstatement of the reasonable-doubt standard, to which a defendant fails to object, implicates both fundamental error review, see [State v.] Escalante, 245 Ariz. [135 (2018)], and review for prosecutorial error or misconduct, seeState v. Vargas, 249 Ariz. 186 (2020).” The term “prosecutorial misconduct” broadly encompasses any conduct that infringes a defendant’s constitutional rights, from inadvertent mistake to intentional misconduct. In re Martinez, 248 Ariz. 458 (2020). To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor’s misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. State v. Morris, 215 Ariz. 324 (2007). A defendant must demonstrate that (1) misconduct exists and (2) a reasonable likelihood exists that the misconduct could have affected the jury’s verdict, denying the defendant a fair trial. State v. Anderson, 210 Ariz. 327 (2005).

However, if a defendant fails to object to alleged prosecutorial misconduct the claim is subject to fundamental error review. Escalante. Then the appellate court must first determine whether trial error exists. Id. If error exists, the court then must determine whether the error is fundamental. Id. Error is “fundamental” if it goes to the foundation of a case; takes away an essential right; or is so egregious that a defendant could not have received a fair trial. Id. This three-pronged fundamental error test provides that if the defendant establishes error satisfying prongs (1) or (2), he must make a separate showing of prejudice [under step three]. But if the defendant establishes the third prong, he has shown both fundamental error and prejudice, and a new trial must be granted. Id. At step (3), prejudice is proven by showing that, without the fundamental error, a reasonable jury could have reached a different verdict.

Critically, Escalante’s prejudice prong is a higher burden to overcome than the inquiry conducted for objected-to prosecutorial misconduct. Morris.If a defendant can satisfy Escalante’sheightened prejudice prong, he has necessarily satisfied the prosecutorial misconduct inquiry. Vargas. Consequently, the Court held that Escalante’sfundamental error review paradigm is the appropriate framework to assess whether a prosecutor’s single, unobjected-to misstatement of the reasonable-doubt standard warrants a new trial.

In the instant case, the prosecutor’s alleged error centered on his explication of the reasonable-doubt standard during his rebuttal argument wherein he invited jurors to conclude that if they thought “one or both defendants might be guilty,” then they must have been “persuaded by the evidence in the case beyond a reasonable doubt.” The prosecutor’s novel “might be guilty”articulation of the standard radically departed from the requisite “firmly convinced” standard. State v. Portillo, 182 Ariz. 592 (1995). The prosecutor’s “might be guilty” dilution failed to rise to even a standard of “probably guilty,” which the U.S. Supreme Court has held fails to satisfy the Sixth Amendment’s requirement that a jury determine guilt. Sullivan v. Louisiana,508 U.S. 275 (1993). Thus, the Court concluded the misstatement relieved the prosecution of its constitutionally required burden and satisfied the first step of Escalante’s fundamental error analysis because it plainly constituted prosecutorial error.

Next, the Court had to determine if the error was fundamental. Prong (1) requires the defendant to demonstrate the error went to the “foundation of the case.” Escalante. This showing is made when an error relieves the prosecution of its burden to prove to a jury the elements of every criminal charge beyond a reasonable doubt. See United States v. Haymond, 139 S. Ct. 2369 (2019). Because the prosecutor’s error permitted the jury to equate “might be guilty” with a finding of beyond a reasonable doubt, which requires the jury be “firmly convinced of the defendant’s guilt,” the prosecution was relieved of its burden, the Court concluded.

Prong (2) requires the defendant to demonstrate the error took away an essential right. Escalante. Because the defense strategy was to assail O.C.’s credibility to persuade the jury that guilt beyond a reasonable doubt had not been established, the prosecutor’s error undermined defense efforts and deprived defendants of an essential right to rebut the State’s case, according to the Court.

As grave as the prosecutor’s error appeared, the Court declined to decide if the defendants satisfied the third prong of the test enunciated in Escalante. The Court chose instead to provide guidance on applying Escalante’sprejudice prong, which requires defendants to show that, without the prosecutor’s error, “a reasonable jury could have plausibly and intelligently returned a different verdict.”

The trial court’s instruction that the lawyers’ comments during arguments “may help you understand the law” reinforced the prosecutor’s error by telling the jury that the misstatement of the reasonable doubt standard could help guide their deliberations. Also, the timing of the error—being the last thing the jury heard—magnified the error. The Court explained that the prosecutor provided the jury with a roadmap to circumvent the reasonable-doubt standard while believing they were adhering to it. The defendants established that, without the error, “a reasonable jury could have plausibly and intelligently returned a different verdict,” the Court ruled.

Accordingly, the Court reversed the trial court’s judgments of conviction and sentences, vacated the COA’s opinions, and remanded the cases for new trials. See: State v. Murray, 482 P.3d 1038 (Ariz. 2021). 

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