from the Superior Court in Pima County No. CR20170096002 The
Honorable James E. Marner, Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee
Office of Hernandez & Hamilton PC, Tucson By Joshua F.
Hamilton and Carol Lamoureux Counsel for Appellant
Presiding Judge Staring authored the opinion of the Court, in
which Chief Judge Vásquez and Judge Brearcliffe
STARING, PRESIDING JUDGE
Claudius Murray appeals from his conviction and sentence for
aggravated assault with a deadly weapon or dangerous
instrument. In this opinion, we address Murray's
allegations of prosecutorial misconduct.Because only this
issue from Murray's appeal merits publication, we have
addressed his other arguments in a separate, unpublished
memorandum decision issued simultaneously. See Ariz.
R. Sup. Ct. 111(h); Ariz. R. Crim. P. 31.19(f). For the
following reasons, as well as the reasons discussed in the
memorandum decision, we affirm Murray's conviction and
and Procedural Background
We view the facts in the light most favorable to sustaining
the jury's verdict and resolve all reasonable inferences
against Murray. See State v. Felix, 237 Ariz. 280,
¶ 30 (App. 2015). In December 2016, Murray and his
brother Easton went to O.C.'s apartment. Murray was
carrying a firearm and Easton was carrying a black bag. The
brothers asked O.C. to store some marijuana for them, but
O.C. refused and asked them to leave. An argument ensued, and
then Easton and O.C. began fighting. During the fight, Easton
shocked O.C. with a taser. Murray attempted to pull O.C. off
of Easton but was unsuccessful. Easton then told Murray to
shoot O.C. and Murray shot O.C. in the leg. O.C. managed to
escape into his apartment, and Murray and Easton "ran
O.C.'s neighbor heard men arguing in a foreign language.
He then saw two men trying to force their way into O.C.'s
apartment and heard two or three gunshots followed by
footsteps running away.
O.C. was treated for a bullet wound to his leg. Officers
found a shell casing matching Murray's gun outside
O.C.'s apartment. Police also found an eight-pound bale
of marijuana, scales, cell phones, and packing and shipping
materials inside O.C.'s apartment. O.C. claimed the
marijuana was not his and the brothers had previously left
the scales and shipping materials at his apartment.
Following a jury trial, Murray was convicted of aggravated
assault with a deadly weapon or dangerous instrument
committed by intentionally, knowingly, or recklessly causing
physical injury in violation of A.R.S. §
13-1204(A)(2). The trial court denied Murray's motion
for new trial and sentenced him to a mitigated five-year term
This appeal followed. We have jurisdiction pursuant to
article VI, § 9 of the Arizona Constitution and A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Murray contends the state committed prosecutorial misconduct
by: (1) making inappropriate and irrelevant references to
Murray's nationality; (2) misstating the evidence by
claiming O.C.'s testimony was corroborated by
"numerous" facts and witnesses and making
unsupported and prejudicial remarks about Murray; and (3)
misstating the law regarding intent, flight, self-defense,
and the burden of proof.
Prosecutorial misconduct is "intentional conduct which
the prosecutor knows to be improper and prejudicial" and
that "is not merely the result of legal error,
negligence, mistake, or insignificant impropriety."
State v. Martinez, 221 Ariz. 383, ¶ 36 (App.
2009) (quoting Pool v. Superior Court, 139 Ariz. 98,
108 (1984)). "To prevail on a claim of prosecutorial
misconduct, a defendant must demonstrate that '(1)
misconduct is indeed present; and (2) a reasonable likelihood
exists that the misconduct could have affected the jury's
verdict, thereby denying defendant a fair trial.'"
State v. Moody, 208 Ariz. 424, ¶ 145 (2004)
(quoting State v. Atwood, 171 Ariz. 576, 606
(1992)). Reversal is warranted when prosecutorial misconduct
"so permeated the trial that it probably affected the
outcome and denied [the] defendant his due process right to a
fair trial." State v. Blackman, 201 Ariz. 527,
¶ 59 (App. 2002).
"We evaluate each instance of alleged misconduct,"
State v. Morris, 215 Ariz. 324, ¶ 47
(2007), and then consider the cumulative effect on the
fairness of Murray's trial, see State v. Hughes,
193 Ariz. 72, ¶ 26 (1998). "[T]he standard of
review depends upon whether [Murray] objected."
Morris, 215 Ariz. 324, ¶ 47. When a defendant
has objected at trial, we review allegations of misconduct
for harmless error; however, when a defendant fails to object
to any of the alleged instances of prosecutorial misconduct,
we review only for fundamental error. State v.
Escalante, 245 Ariz. 135, ¶ 12
(2018); State v. Sanders, 245 Ariz. 113,
¶ 91 (2018).
Murray argues the state made "inappropriate and
irrelevant" references throughout trial to the fact he
is from Jamaica. In addition, he argues the references to his
nationality were especially prejudicial in light of the
state's presentation of marijuana-related evidence and
such references "only served to invoke and inflame
preexisting stereotypes that the jury might have about
Jamaican involvement in marijuana shipping."
While references to nationality are generally improper and
inherently prejudicial under certain circumstances, we do not
find that to be the case here. See generally State v.
Filipov, 118 Ariz. 319 (App. 1977); see also United
States v. Rodriguez Cortes, 949 F.2d 532, 540-43 (1st
Cir. 1991) (reversing conviction where nationality evidence
of dubious relevance, prosecutor appealed to
nationality-based prejudice in closing arguments, and case
was otherwise a "very close case"). During trial,
O.C.'s neighbor testified he heard an argument outside of
his apartment, but could not understand what was being said
because "it was off into [a] foreign language." In
addition, O.C. testified that on the night he was shot, he,
Murray, and Easton were speaking their native language,
Jamaican Patois. As Murray acknowledges, evidence he could
speak Jamaican Patois was relevant to explain O.C.'s
neighbor's testimony about the argument he overheard.
Thus, references to Murray's Jamaican nationality were
neither irrelevant nor improper-they were intertwined with
evidence of him speaking his native language.
And, contrary to Murray's claim, the state's comments
and questions about his nationality did not serve to invoke
and inflame jury prejudice; the state did not make any
statements tying Jamaica to the drug trade or inviting the
jury to draw improper conclusions based on nationality.
See United States v. Doe, 903 F.2d 16, 20, 27-28
(D.C. Cir. 1990) (argument improper and prejudicial where
state argued Jamaicans taking over drug trade strongly
suggested Jamaican defendants were guilty). Thus, the
state's references to Murray's nationality did not
Murray next argues the state "repeatedly made
inappropriate comments and arguments about the evidence that
were not supported by the record" during closing
argument. "Opposing counsel must timely object to any
erroneous or improper statements made during closing argument
or waive his right to the objection, except for fundamental
error." State v. Cook, 170 Ariz. 40, 51 (1991)
(quoting State v. Smith, 138 Ariz. 79, 83 (1983)).
"Counsel is given wide latitude in closing argument to
comment on the evidence and argue all reasonable inferences
from it." Moody, 208 Ariz. 424, ¶ 180
(internal citations omitted). "Unlike opening
statements, during closing arguments counsel may summarize
the evidence, make submittals to the jury, urge the jury to
draw reasonable inferences from the evidence, and suggest
ultimate conclusions." State v. Bible, 175
Ariz. 549, 602 (1993). And, courts should look to the context
in which the statements were made, as well as the entire
record and the totality of the circumstances. State v.
Goudeau, 239 Ariz. 421, ¶ 196 (2016). Further,
arguments made by counsel generally carry less weight than
instructions from the court, which "are viewed as
definitive and binding statements of the law," while
arguments by counsel "are usually billed in advance to
the jury as matters of argument, not evidence . . . and are
likely viewed as the statements of advocates." Boyde
v. California, 494 U.S. 370, 384 (1990).