State v. Murray

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          Appeal from the Superior Court in Pima County, No. CR20170096001, The Honorable James E. Marner, Judge.

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

         Kuykendall & Associates, Tucson, By Amy P. Knight, Counsel for Appellant

         Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa concurred and Judge Eckerstrom concurred in part and dissented in part.

          OPINION

         EPPICH, Presiding Judge:

         [¶1] Easton Murray appeals from his conviction for aggravated assault with a deadly weapon. He contends he was denied a fair trial by numerous instances of alleged prosecutorial misconduct, improperly admitted evidence, and evidence and argument suggesting conviction for an uncharged offense. Finding few errors, and none warranting reversal, we affirm.

          Factual and Procedural Background

         [¶2] We view the facts in the light most favorable to sustaining the jury’s verdict. See State v. Allen, 235 Ariz. 72, ¶ 2, 326 P.3d 339, 341 (App. 2014). On December 16, 2016, Murray and his brother, who had a rifle in his hand, approached the victim at his apartment and asked that he hold some marijuana for them. The victim refused and asked Murray and his brother to leave. An argument ensued, which quickly escalated into a fight outside the front door. During the altercation, Murray shocked the victim with a taser and Murray’s brother shot him in the leg.

         [¶3] After a three-day trial in which Murray and his brother were tried jointly, a jury convicted Murray of aggravated assault with a deadly weapon. The trial court sentenced Murray to five years’ imprisonment. We have jurisdiction over Murray’s timely appeal pursuant to A.R.S. § § 13-4031 and 13-4033(A)(1).

          Victim’s Translation of Murray’s Foreign-Language Statements

         [¶4] We first address Murray’s claim that the trial court erred by permitting the

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victim to testify that during the confrontation, Murray said to his brother in Jamaican Patois, "[S]hoot him, shoot the boy." Murray contends that allowing the victim to translate the words he heard was improper because the victim was not "a trained interpreter, and certainly not neutral."

         [¶5] Because Murray did not object at trial, we review only for fundamental error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). "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." State v. Escalante, 245 Ariz. 135, ¶ 21, 425 P.3d 1078, 1085 (2018). The victim, who stated that Jamaican Patois is his "native language," testified as a witness to a conversation he personally perceived. Murray cites no case, and we are aware of none, holding that a witness cannot testify in English to the meaning of what he or she personally heard and understood in another language. Indeed, substantial authority holds such testimony admissible. See, e.g ., United States v. Villalta, 662 F.2d 1205, 1207 (5th Cir. 1981) (witness with personal knowledge of conversation competent to testify to content of conversation in foreign language); People v. Munoz-Casteneda, 300 P.3d 944, 948-49 (Colo.App. 2012) (same); Commonwealth v. Shooshanian, 210 Mass. 123, 96 N.E. 70 (1911) ("There was no error in permitting the witness ... to state in English the substance of the conversation between him and the defendant held in a foreign language."). The case Murray cites to argue otherwise, People v. Allen, 22 Ill.App.3d 800, 317 N.E.2d 633, 633-35 (1974), involved a much different situation where the trial court, over the defendant’s objection, allowed the state to use an interested party as an interpreter for a testifying witness.

         [¶6] Nor does Murray cite any authority for the proposition that only a "trained interpreter" can testify in English to the meaning of words he heard in another language. Again, substantial authority holds otherwise. See, e.g., Munoz-Casteneda, 300 P.3d at 949 (witness with "personal knowledge of the relevant conversation" who "is capable of testifying to a translation of its contents without misleading the jury[ ] and is subject to cross-examination ... may testify without first being certified as an interpreter"); State v. Roldan, 151 N.H. 283, 855 A.2d 445, 449 (2004) (rules governing court interpreters inapplicable to witnesses testifying to meaning of foreign-language evidence). We conclude that the victim’s testimony in English to the meaning of what he heard in Jamaican Patois was proper, and no error occurred, fundamental or otherwise.

          Indictment

         [¶7] Murray contends that while the indictment alleges he committed aggravated assault with a firearm, the state improperly presented additional evidence and argument that Murray used a taser in the assault, qualifying as use of a "deadly weapon or dangerous instrument" under the aggravated assault statute. A.R.S. § 13-1204(A)(2). Murray argues that because the alleged taser use constituted an entirely different crime from that alleged, the indictment was automatically amended to conform to the evidence of an assault by taser. See Ariz. R. Crim. P. 13.5(b) ("[An indictment] is deemed amended to conform to the evidence admitted during [trial]."). Murray concludes that because he had no notice of the alleged assault by taser, and there is no way "to know whether the jury rested its verdict on the (proper) firearm allegation or the (improper) taser allegation," the verdict against him must be set aside.

         [¶8] Because this is another issue Murray did not timely raise at trial,^[1] we review it for fundamental error. See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607. An indictment "limits the trial to the

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specific charge or charges stated in the ... indictment," and unless the defendant consents, an indictment "may be amended only to correct mistakes of fact or remedy formal or technical defects." Ariz. R. Crim. P. 13.5(b). An amendment to an indictment that instead changes the nature of the offense violates Rule 13.5(b), see State v. Freeney, 223 Ariz. 110, ¶ 20, 219 P.3d 1039, 1042 (2009), and a defendant’s rights under the Sixth Amendment may be violated— and fundamental error may thereby occur— if he does not receive adequate notice of such an amendment. See State v. Montes Flores, 245 Ariz. 303, ¶¶ 16-17, 428 P.3d 502, 506 (App. 2018) (citing Freeney, 223 Ariz. 110, ¶¶ 16-17, 24-29, 219 P.3d at 1042-44).

         [¶9] No error of any kind occurred here, however. In the trial court’s opening instructions to the jury, it read the allegation in the indictment— that "Murray assaulted [the victim] with a deadly weapon or dangerous instrument, to wit, a firearm." Each juror received a copy of the indictment. We presume that the jury followed its instruction and considered the charged offense as alleged, see State v. Jeffrey, 203 Ariz. 111, ¶ 18, 50 P.3d 861, 865 (App. 2002) (juries presumed to follow instructions), and nothing that occurred at trial overcomes this presumption. The defendants’ use of a taser was part and parcel of the overall altercation, and therefore was admissible to put the events in context independent of showing that they used a deadly weapon or dangerous instrument. Moreover, in closing arguments, the prosecutor stressed that the defendants used a firearm— a gun— which qualified as a deadly weapon and made the assault an aggravated assault. The prosecutor never argued that the taser was a deadly weapon or dangerous instrument. In these circumstances, there is no reason to believe Murray was convicted for anything other than the offense alleged in the indictment— aggravated assault using a firearm.

          Personal Knowledge

         [¶10] At trial, the prosecutor asked the victim if he recognized what was depicted in a photograph that appears to show a dark-colored bale wrapped in clear plastic. The victim said no. The prosecutor then asked if the victim thought he knew what the photograph depicted. The trial court overruled Murray’s objection that the question had been asked and answered, and the state restated the question, asking the victim if he "[knew] what [the photograph] might be." The court again overruled Murray’s objection that the question had been asked and answered, and the victim said, "No. I don’t know what was in the black bag." The prosecutor then asked, "Do you think you know what [the photograph is] even though it doesn’t look familiar to you?" The victim then answered, "I think I know what it is. It was in the house." When asked what he thought it was, the victim replied that it was marijuana.

         [¶11] Murray contends the trial court erred by allowing the prosecutor to continue to question the victim after he "repeatedly denied any knowledge of what was in the photo," contending this violated Rule 602, Ariz. R. Evid., which requires that a witness have "personal knowledge" of a matter to which he testifies. Murray asserts that this testimony was the only evidence establishing the state’s proposed motive for the assault— the victim’s refusal to assist Murray and his brother in their marijuana business— and therefore the testimony prejudiced him.

         [¶12] Because Murray objected at trial,^[2] we review the trial court’s rulings for abuse of discretion. See State v. Pandeli, 215 Ariz. 514, ¶ 41, 161 P.3d 557, 570 (2007). Here, the court had discretion to allow the prosecutor to continue to probe the victim about the contents of the photograph even after he initially expressed unfamiliarity with it. Cf. State v. Lynch, 238 Ariz. 84, ¶¶ 11-12, 357 P.3d 119, 128 (2015) (no abuse of discretion where court overruled objections to prosecutor’s aggressive, combative questioning), rev’d on other grounds, __ U.S. __, 136 S.Ct. 1818, 195 L.Ed.2d 99 (2016). And even were we to take the witness’s ultimate

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answer as speculation rather than an admissible inference from personal knowledge and experience, see Ariz. R. Evid. 701; State v. Peltz, 242 Ariz. 23, ¶ 17, 391 P.3d 1215, 1221 (App. 2017), the answer was merely cumulative of other evidence that Murray and his brother had brought marijuana to the apartment for the victim to hold for them. Any error here was therefore harmless. See State v. Granados, 235 Ariz. 321, ¶ 35, 332 P.3d 68, 76 (App. 2014).

          Expert Witness

         [¶13] After testifying to his experience and knowledge of the local marijuana trade, a detective testified, without objection, that evidence he saw in this case was consistent with the shipping practices common to that trade. During cross-examination, Murray asked the detective whether the evidence could have indicated that marijuana was being received in addition to being shipped, and the detective testified that it did. Murray also asked about the significance of finding multiple cell phones at the scene, and the detective replied it indicated involvement in narcotics trafficking. Murray argues that this testimony was presented as lay witness testimony under Rule 701, but was actually expert testimony the state did not properly disclose under Rule 15.1, Ariz. R. Crim. ...