State v. Marks ( 2018 )


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  •                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Appellee,
    v.
    ANTHONY MARKS, Appellant.
    Nos. 1 CA-CR 17-0553; 1 CA-CR 17-0630 (Consolidated)
    FILED 10-23-2018
    Appeal from the Superior Court in Maricopa County
    Nos. CR2015-005294-001; CR2014-150609-001
    The Honorable M. Scott McCoy, Judge
    AFFIRMED
    COUNSEL
    Maricopa County Public Defender’s Office, Phoenix
    By Jeffrey L. Force
    Counsel for Appellant
    Arizona Attorney General’s Office, Phoenix
    By Joseph T. Maziarz
    Counsel for Appellee
    STATE v. MARKS
    Decision of the Court
    MEMORANDUM DECISION
    Judge James P. Beene delivered the decision of the Court, in which
    Presiding Judge Maria Elena Cruz and Judge Jennifer B. Campbell joined.
    B E E N E, Judge:
    ¶1            This appeal was timely filed in accordance with Anders v.
    California, 
    386 U.S. 738
     (1967) and State v. Leon, 
    104 Ariz. 297
     (1969)
    following Anthony Marks’ (“Marks”) convictions for second-degree
    murder, disorderly conduct, and two counts of aggravated assault. Marks’
    counsel searched the record on appeal and found no arguable question of
    law that is not frivolous. See State v. Clark, 
    196 Ariz. 530
     (App. 1999).
    Counsel now asks us to search the record for fundamental error. Marks
    was given the opportunity to file a supplemental brief in propria persona and
    elected to do so. After reviewing the entire record, we affirm Marks’
    convictions and sentences.
    FACTS1 AND PROCEDURAL HISTORY
    ¶2           On September 9, 2015, K.L.’s apartment was burglarized. She
    informed her boyfriend, D.W., of the burglary, and he came over to the
    apartment to check on K.L. Once in the apartment, they noticed Marks on
    a neighboring balcony looking at them and pointing suspiciously. D.W.
    asked Marks if he had anything to do with the break-in. An argument
    between these two individuals ensued, ending with D.W. cursing at Marks.
    K.L. calmed D.W. down and they walked away from the argument.
    ¶3            Following the argument, K.L. and D.W. went to the parking
    lot, where they encountered Marks walking towards them. D.W., grabbing
    his pepper spray, confronted Marks, asking him what he had in his pocket.
    As Marks pulled a gun out of his pocket, D.W. sprayed him with the pepper
    spray. Marks then blindly fired three shots and ran from the scene. As
    D.W. chased after him, Marks fired two shots behind him, killing D.W.
    1       “We view the facts in the light most favorable to sustaining the
    convictions with all reasonable inferences resolved against the defendant.”
    State v. Harm, 
    236 Ariz. 402
    , 404 n.2, ¶¶ 2-3 (App. 2015) (citation omitted).
    2
    STATE v. MARKS
    Decision of the Court
    Neighbors who witnessed the incident identified the shooter as Marks to
    the investigating officers.
    ¶4            Marks was charged with one count of first-degree murder, a
    class 1 dangerous felony, two counts of aggravated assault, both class 3
    dangerous felonies, one count of disorderly conduct, a class 6 dangerous
    felony, and two counts of misconduct involving weapons, class 4 felonies.2
    Marks was tried and found guilty of second-degree murder, two counts of
    aggravated assault, and disorderly conduct, and was sentenced to a total of
    20 years in prison.
    ¶5           We have jurisdiction pursuant to Article 6, Section 9, of the
    Arizona Constitution, and Arizona Revised Statutes sections
    12-120.21(A)(1), 13-4031, and -4033(A)(1).
    DISCUSSION
    I.     Jury Instructions.
    ¶6             Marks asserts that the superior court erred when it denied his
    requested jury instructions on cross-racial identification and eyewitness
    identification. At trial, Marks relied on an unreported decision discussing
    California’s revised jury instructions to argue that the superior court should
    instruct the jury on cross-racial identification. The State objected to the
    instruction because the California case was not binding, there is no
    standard jury instruction for cross-racial identification in Arizona, and
    Marks presented no expert testimony regarding the identification. The
    superior court found that the cases cited by Marks did not establish that the
    instruction should be given, nor did Marks present any evidence showing
    that cross-racial identifications are more difficult. Because there was no
    evidence in the case to support the California instruction, the court denied
    Marks’ request.
    ¶7            Marks also requested an instruction on eyewitness
    identification. See Rev. Ariz. Jury Instr. (“RAJI”) 39. However, the court
    found that the requested instruction was not appropriate because it
    specifically addressed pretrial, in-court identification issues. As there was
    no previous in-court identification of Marks, the court refused to give the
    instruction and directed counsel to address the validity of any witness
    identification of Marks during closing arguments.
    2     The two counts of misconduct involving weapons were severed
    from the trial and dismissed without prejudice at sentencing.
    3
    STATE v. MARKS
    Decision of the Court
    ¶8            “The decision to refuse a jury instruction is within the trial
    court’s discretion, and this court will not reverse it absent a clear abuse of
    that discretion.” State v. Bolton, 
    182 Ariz. 290
    , 309 (1995) (citation omitted).
    The superior court’s failure to “give an instruction is not reversible error
    unless it is prejudicial to the rights of a defendant and such prejudice
    appears on the record.” State v. Barr, 
    183 Ariz. 434
    , 442 (App. 1995) (citation
    omitted). “Closing arguments of counsel may be taken into account when
    assessing the adequacy of jury instructions.” State v. Bruggeman, 
    161 Ariz. 508
    , 510 (App. 1989) (citations omitted).
    ¶9             Here, the jury instructions were correct statements of law.
    The jury was instructed on burden of proof, presumption of innocence, and
    credibility of witnesses. These instructions adequately covered the issue of
    identification. Further, during closing arguments, defense counsel was
    given the opportunity to challenge the identification evidence.
    Accordingly, we find that the superior court did not abuse its discretion in
    refusing to include these instructions.
    II.    Identification Testimony.
    ¶10            Marks argues the superior court erred when it “denied the
    Dessureault motion . . . regarding all victims and witnesses.” He asserts
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    this was an abuse of discretion as the pretrial identification procedures were
    unduly suggestive; however, he provides no support for this conclusion.
    ¶11            Before trial, Marks filed a motion to preclude in-court
    identification testimony from one eyewitness who identified him in a photo
    lineup at the time of the crime. He filed a separate motion in limine to
    preclude in-court identification from another witness who identified Marks
    in the photo lineup because he heard the altercation with D.W. and was
    familiar with Marks’ voice.
    ¶12           The superior court held a Dessureault hearing wherein the
    officer who performed the photo lineup testified. Marks argued the photo
    lineup was unduly suggestive because the officer told one witness to “take
    [her] time,” asked a question to clarify where she had seen Marks, and the
    lineup did not include a photo of another African American neighbor who
    lived near Marks. Marks also argued that the second witness should be
    precluded because he made inconsistent statements to law enforcement
    regarding what he had seen and heard but was shown the photo lineup
    anyway.
    3      State v. Dessureault, 
    104 Ariz. 380
     (1969).
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    STATE v. MARKS
    Decision of the Court
    ¶13            The superior court properly found that the State proved by
    clear and convincing evidence that the photo lineup utilized for both
    witnesses was not unduly suggestive. Thus, the court satisfied the
    requirements of Dessureault. See State v. Dessureault, 
    104 Ariz. 380
    , 384
    (1969) (outlining effective procedures for trial courts in situations where
    pretrial identifications of defendants have been made).
    III.   Jury Misconduct.
    ¶14            Marks argues the superior court erred when it denied his
    motion for a mistrial after jurors disregarded the admonition and discussed
    the case before deliberations. Several days into trial, Marks moved for a
    mistrial after receiving word that jurors were discussing the case amongst
    themselves and may have expressed negative views of Marks’ counsel.
    Marks argued that the jurors’ comments demonstrated they were shifting
    the burden away from the State.
    ¶15           The court denied the motion but polled each juror to
    determine what was said, whether they had formed any final opinions
    regarding the case, and whether they understood the burden of proof. The
    polling revealed that none of the jurors had formed final opinions regarding
    the case and all of them understood the burden of proof. The comments
    made were attributed to one juror. On one occasion, the juror made a joke
    about Marks’ counsel’s choice of wardrobe; on another, he commented that
    the counsel’s questions were confusing. The superior court dismissed the
    juror who made the comments.
    ¶16             “[J]uror misconduct warrants a new trial if the defense shows
    actual prejudice or if prejudice may be fairly presumed from the facts.”
    State v. Miller, 
    178 Ariz. 555
    , 558 (1994) (citing State v. Vasquez, 
    130 Ariz. 103
    ,
    105 (1981)). “Declaring a mistrial is the most drastic remedy for trial error
    and should be granted only when justice will be thwarted if the current jury
    is allowed to consider the case.” State v. Woods, 
    237 Ariz. 214
    , 217, ¶ 5 (App.
    2015) (citations and quotations omitted). The superior court may properly
    excuse a juror for cause after evidence has been received. Evans v. Abbey,
    
    130 Ariz. 157
    , 159 (App. 1981).
    ¶17           Here, the superior court ensured Marks was not prejudiced
    by the improper comments by questioning each member of the jury. The
    court remedied the issue by dismissing the one juror who had made
    comments regarding Marks’ attorney. Thus, the superior court did not
    abuse its discretion when it denied Marks’ motion for a mistrial. Cf. Evans,
    
    130 Ariz. at 160
     (concluding trial court erred in declaring mistrial when
    5
    STATE v. MARKS
    Decision of the Court
    juror misconduct could have been cured by questioning and dismissal of
    alternate).
    IV.   Review of the Record.
    ¶18           In addition to evaluating the arguments raised in Marks’
    supplemental brief, we have conducted an independent review of the
    record. The record reflects no fundamental error in pretrial or trial
    proceedings. Marks was represented by counsel and present at all critical
    stages of the proceedings. The superior court conducted a Donald4 hearing
    with Marks.
    ¶19           The jury was properly comprised of twelve jurors and two
    alternates. The State presented direct and circumstantial evidence
    sufficient for a reasonable jury to convict. The court appropriately
    instructed the jury on the elements of the charges. The key instructions
    concerning burden of proof, presumption of innocence, reasonable doubt,
    and the necessity of a unanimous verdict were also properly administered.
    The jury returned unanimous verdicts finding Marks not guilty of first-
    degree murder, guilty of the lesser-included offense of second-degree
    murder, and guilty on the remaining two counts of aggravated assault and
    one count of disorderly conduct. The jury also unanimously found that the
    State proved four aggravators for each count.
    ¶20          The superior court held a trial to prove Marks’ prior
    convictions and properly found that Marks had two prior felony
    convictions. The court received a presentence report, accounted for
    aggravating and mitigating factors, and provided Marks an opportunity to
    speak at sentencing. The court properly imposed a legal sentence for the
    crimes of which he was convicted.
    CONCLUSION
    ¶21           We have reviewed the entire record for reversible error and
    find none; therefore, we affirm the convictions and resulting sentences.
    ¶22          After the filing of this decision, defense counsel’s obligation
    pertaining to Marks’ representation in this appeal will end. Defense
    counsel need do no more than inform Marks of the outcome of this appeal
    and his future options, unless, upon review, counsel finds “an issue
    appropriate for submission” to the Arizona Supreme Court by petition for
    review. State v. Shattuck, 
    140 Ariz. 582
    , 584-85 (1984). On the Court’s own
    4     State v. Donald, 
    198 Ariz. 406
     (App. 2000).
    6
    STATE v. MARKS
    Decision of the Court
    motion, Marks has 30 days from the date of this decision to proceed, if he
    wishes, with a pro per motion for reconsideration. Further, Marks has 30
    days from the date of this decision to proceed, if he wishes, with a pro per
    petition for review.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
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