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 (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 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 (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 (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, 96 N.E. 70 (Mass. 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, 317 N.E.2d 633,
633-35 (Ill.App.Ct. 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,
855 A.2d 445, 449 (N.H. 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. An
indictment "limits the trial to the 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 (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 (App. 2018)
(citing Freeney, 223 Ariz. 110, ¶¶ 16-17,
24-29).
¶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 (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 (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 (2015)
(no abuse of discretion where court overruled objections to
prosecutor's aggressive, combative questioning),
rev'd on other grounds, 136 S.Ct. 1818 (2016).
And even were we to take the witness's ultimate 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 (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 (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. P., or establish as
appropriate expert testimony. See Ariz. R. Evid. 702
(imposing several requirements on opinion testimony based on
"scientific, technical, or other specialized
knowledge").
¶14
Murray again raised no objection, so we review for
fundamental error. See Henderson, 210 Ariz. 561,
¶ 19. We detect none here. Murray cites United
States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir.
1997), for its proposition that law-enforcement testimony
that the defendant's conduct was consistent with that of
a drug trafficker is expert testimony and must be disclosed
as such. But see United States v. Novaton, 271 F.3d
968, 1007-09 (11th Cir. 2001) (declining to follow
Figueroa-Lopez and admitting similar testimony as
lay witness testimony). Murray does not attempt to explain,
however, how Figueroa-Lopez supports reversal here,
in light of the fact that the court did not reverse the
defendant's convictions there-even though that defendant
had objected at trial and thus was afforded the more
stringent harmless-error standard of review. 125 F.3d at
1244, 1247; see also Henderson, 210 Ariz. 561,
¶ 18 (under harmless error review, state has burden to
prove beyond reasonable doubt that error did not affect
verdict). Moreover, in Figueroa-Lopez, the state
"relied extensively" on the contested testimony in
its closing arguments but the court found the testimony to be
harmless because the witness testified to knowledge and
experience that would have qualified him as an expert. 125
F.3d at 1247. Here, the detective similarly testified to
extensive experience that would have qualified him as an
expert, including participation in several hundred
drug-trafficking investigations, and Murray cites no instance
where the state relied on the contested evidence.
¶15
Finally, the bulk of the detective's opinions were
elicited by Murray himself during cross-examination. Indeed,
Murray not only prompted the detective to repeat his opinion
that the evidence was consistent with drug shipping, Murray
further elicited that the evidence was consistent with
receiving drugs, and that the multiple cell phones found were
also consistent with drug trafficking. Most if not all
prejudice from the testimony can therefore be attributed to
Murray's own questioning, which cannot be a basis for
reversal. See State v. Logan, 200 Ariz. 564,
¶¶ 8-9 (2001) ("[W]e will not find reversible
error when the party complaining of it invited the
error."). Murray offers no explanation of how
fundamental error exists despite this undisputed fact.
¶16
Murray additionally claims prejudice from the lack of
disclosure, asserting he was deprived of the opportunity to
challenge admission of the testimony, prepare to rebut it, or
obtain his own expert. But he does not adequately explain how
this alleged deprivation prejudiced him. See
Escalante, 245 Ariz. 135, ¶ 21 (defendant claiming
fundamental error based on deprivation of right essential to
defense must make separate showing of prejudice). Indeed,
Murray's only specific assertion of prejudice is that the
evidence was irrelevant and "the only possible use of
this testimony was to prompt jurors to continue to engage
with stereotypes about Jamaicans and marijuana." But the
evidence was relevant because it helped show a motive for the
assault-to force the victim to assist in drug trafficking, or
punish him if he did not. Murray does not identify, and we do
not find, any instance where the detective suggested a link
between Murray's nationality and the drug-trafficking
evidence. In sum, even assuming that the contested testimony
was expert testimony that should have been disclosed, we
conclude that Murray has not shown fundamental, prejudicial
error.
Prosecutorial
Misconduct
¶17
Because Murray did not object at trial to any of the alleged
instances of prosecutorial misconduct he raises here, we
review them for fundamental error. See Henderson,
210 Ariz. 561, ¶ 19. Fundamental error review is
restrictive because it is designed to "encourage
defendants to present their objections in a timely fashion at
trial, when the alleged error may still be corrected, and to
discourage defendants from reserving a curable trial error as
a 'hole card' to be played in the event they are
dissatisfied with the results of their proceedings."
State v. Davis, 226 Ariz. 97, ¶ 12 (App. 2010)
(quoting Henderson, 210 Ariz. 561, ¶ 19).
¶18
Where, as here, a defendant claims that prosecutorial
misconduct was so egregious it deprived him of a fair trial,
"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. Hughes,193 Ariz. 72,
¶ 26 (1998) (quoting Donnelly v. DeChristoforo,416 U.S. 637, 643 (1974)). We therefore reverse for
prosecutorial misconduct only when "(1) misconduct
exists and (2) 'a reasonable likelihood exists that the
misconduct could have affected the jury's verdict,
thereby denying defendant a fair trial.'" State
v. Morris,215 Ariz. 324, ¶ 46 (2007) (quoting
State v. Anderson,210 Ariz. 327, ¶ 45 (2005)).
We view a prosecutor's conduct within the context of the
entire trial, and will not lightly overturn a conviction
solely on the basis of a prosecutor's misconduct.
State v. Hernandez,170 Ariz. 301, 308 (App. 1991)
(citing United States v. Young,470 U.S. 1, 11
(1985)). We will, however, consider the cumulative effect of
multiple instances of misconduct where the ...