State of Arizona v. Luis Armando Vargas

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

LUIS ARMANDO VARGAS,

Appellant.

No. CR-19-0071-PR

Filed July 31, 2020

Appeal from the Superior Court in Pima County

The Honorable Kenneth Lee, Judge

No. CR20144526-001

Memorandum Decision of the Court of Appeals, Division Two

No. 2 CA-CR 2016-0324

Filed Jan. 29, 2019

VACATED IN PART AND REMANDED IN PART

COUNSEL:

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz (argued),

Chief Counsel, Criminal Appeals Section, Michael T. O’Toole, Assistant

Attorney General, Phoenix, Attorneys for State of Arizona

Joel Feinman, Pima County Public Defender, Erin K. Sutherland (argued),

Deputy Public Defender, Tucson, Attorneys for Luis Armando Vargas

JUSTICE MONTGOMERY authored the opinion of the Court, in which

CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and

JUSTICES BOLICK, GOULD, LOPEZ, and BEENE joined.

STATE V. VARGAS

Opinion of the Court

JUSTICE MONTGOMERY, opinion of the Court:

¶1 A defendant presenting an appellate claim of fundamental

error due to prosecutorial misconduct may base his claim on a single

alleged instance of misconduct or he may allege that multiple instances

occurred, which cumulatively amount to fundamental error. In either

case, the defendant must establish that misconduct occurred. We hold

today that a defendant claiming fundamental error due to cumulative

prosecutorial misconduct does not have to assert fundamental error for

every allegation in order to preserve for review the argument that

misconduct occurred. In doing so, we disapprove of State v. Moreno-

Medrano, 218 Ariz. 349 (App. 2008), as authority to the contrary.

I.

¶2 A jury found Luis Armando Vargas guilty of several offenses,

including first degree murder, resulting in a sentence of natural life in

prison with a consecutive term of imprisonment.

¶3 On appeal, Vargas argued that the prosecutor engaged in a

“pervasive pattern of misconduct [that] cumulatively deprived [him] of his

right to a fair trial.” Because trial counsel did not object to the alleged

misconduct at trial, appellate counsel argued that the court of appeals

should review the claim of cumulative misconduct for fundamental error.

He began his argument by setting forth the standard of review for

fundamental error and asserting that the allegations of misconduct must be

considered collectively, stating:

When a defendant objects to an alleged act of prosecutorial

misconduct, the issue is preserved; when a defendant fails to

object, the court engages in fundamental error review. . . .

Even if the alleged acts of misconduct do not individually

warrant reversal, the court must determine whether the acts

contribute to a finding of persistent and pervasive

misconduct.

¶4 To support his claim, Vargas alleged eleven different

instances of purported misconduct, some involving multiple acts. For

each allegation, he cited to the record where it occurred and cited legal

authority to support that each instance constituted misconduct. He did

not, however, argue that each allegation standing alone was fundamental

error. Instead, Vargas argued that “[a]lthough certain instances of

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STATE V. VARGAS

Opinion of the Court

misconduct may not have caused great harm, when the cumulative effect is

considered, it is evident that Luis Vargas was denied his right to a fair trial.”

He concluded by reiterating that the alleged misconduct “amounted to

fundamental prejudicial error” and that the court of appeals “must reverse

his convictions and remand the case for a new trial.”

¶5 The State responded that Vargas waived his right to challenge

most of the instances of alleged misconduct because he had failed to object

at trial and he had not argued fundamental error as to each allegation on

appeal. Vargas replied that, with respect to the specific instances in

question, he had “indicated from the outset that no objection was made at

trial and fundamental error review applied.”

¶6 For all but three of the alleged incidents of misconduct cited

by Vargas, the court of appeals concluded that because he failed to set forth

an argument of fundamental error for each allegation, he waived argument

that error occurred. State v. Vargas, No. 2 CA-CR 2016-0324, 2019 WL

366444, at *3–8 ¶¶ 13–14, 20–21, 23, 25, 27, 32, 39–40, 42 (Ariz. App. Jan. 29,

2019) (mem. decision). For each of these conclusions, the court cited to

Moreno-Medrano, 218 Ariz. at 354 ¶ 17, which held that the failure to argue

an alleged error was fundamental waives the argument for appellate

review. Id. The court ultimately concluded that Vargas failed to

successfully argue misconduct for any of his allegations, including the three

resolved without a citation to Moreno-Medrano. Id. at *2 ¶ 9.

Accordingly, the court concluded he also failed to establish cumulative

error based on misconduct. Id. After considering other issues raised by

Vargas, the court affirmed his convictions and sentences. Id. at *13 ¶ 64.

¶7 We accepted review to address whether a defendant may

preserve consideration of individual instances of misconduct for

cumulative error review without also separately arguing fundamental error

for each allegation. This is an issue of recurring statewide importance.

We have jurisdiction pursuant to article 6, section 5(3) of the Arizona

Constitution.

II.

¶8 Vargas argues that the court of appeals erred in concluding

that he failed to establish any prosecutorial misconduct and therefore also

erred in concluding there was no cumulative error.

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STATE V. VARGAS

Opinion of the Court

¶9 “[W]e review the interpretation of court rules de novo and

apply principles of statutory construction when doing so.” State v.

Winegardner, 243 Ariz. 482, 484 ¶ 5 (2018) (internal citations omitted).

A.

1.

¶10 To properly raise and develop a claim of error on appeal,

Arizona Rule of Criminal Procedure 31.10(a)(7) states that a defendant’s

opening brief must include:

(A) appellant’s contentions with supporting reasons for

each contention, and with citations of legal authorities and

appropriate references to the portions of the record on

which the appellant relies. The argument may include a

summary.

(B) for each issue, references to the record on appeal where

the issue was raised and ruled on, and the applicable

standard of appellate review with citation to supporting

legal authority.

¶11 Before addressing whether Vargas adequately developed his

claim of cumulative error, we note that cases addressing similar claims

based on prosecutorial misconduct have not presented a consistent

framework for review. 1 Compare State v. Hughes, 193 Ariz. 72, 79 ¶ 26

(1998) (discussing the cumulative effect doctrine regarding prosecutorial

misconduct in general and making no distinction between harmless and

1 Prior cases are also inconsistent in discussing whether a claim of error that

is, in fact, not error can still be considered for a finding of cumulative error.

Compare State v. Roque, 213 Ariz. 193, 228 ¶ 155 (2006) (stating that ”even if

there was no error . . . an incident may nonetheless contribute to a finding

of persistent and pervasive misconduct”) abrogated on other grounds by State

v. Escalante-Orozco, 241 Ariz. 254, 267 ¶ 14 (2017) abrogated on other grounds

by State v. Escalante, 245 Ariz. 135, 140 ¶¶ 15–16 (2018), with State v. Hulsey,

243 Ariz. 367, 388 ¶ 88 (2018) (considering only claims that constitute error

in a cumulative error review). Since neither party addressed this apparent

inconsistency, and it is not at issue in Vargas’ claim of cumulative error, we

do not address it.

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STATE V. VARGAS

Opinion of the Court

fundamental error review in considering misconduct claims), with State v.

Bocharski, 218 Ariz. 476, 491–92 ¶ 74 (2008) (making an explicit distinction

between the standard of review if the defendant has objected to error or

not); compare Roque, 213 Ariz. at 228 ¶ 155 (2006) (stating that after

reviewing an allegation for error, a court must then assess whether to

include it for cumulative error review before then evaluating allegations for

cumulative error), with Hulsey, 243 Ariz. at 388 ¶ 88 (2018) (citing to Roque,

but only reviewing established claims of error for cumulative error).

¶12 To harmonize our case law and preclude any confusion

regarding the showing a defendant must make when claiming cumulative

error based on prosecutorial misconduct, we initially direct litigants and

appellate courts to utilize the framework set forth in State v. Escalante:

[T]he first step in fundamental error review is determining

whether [] error exists. If it does, an appellate court must

decide whether the error is fundamental. . . . 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. If the defendant establishes fundamental error under

prongs one or two, he must make a separate showing of

prejudice. . . . If the defendant establishes the third prong, he

has shown both fundamental error and prejudice, and a new

trial must be granted. The defendant bears the burden of

persuasion at each step.

245 Ariz. 135, 142 ¶ 21 (2018) (internal citations omitted).

¶13 Consistent with the third prong of Escalante, a defendant

claiming cumulative error based on prosecutorial misconduct need not

separately assert prejudice since a successful claim necessarily establishes

the unfairness of a trial. See, e.g., Roque, 213 Ariz. at 228 ¶ 152

(characterizing a successful claim of prosecutorial misconduct as one where

the misconduct “so infected the trial with unfairness as to make the

resulting conviction a denial of due process”) (quoting Hughes, 193 Ariz. at

79 ¶ 26). Nonetheless, if a defendant simply asserts a general claim of

error on appeal and fails to develop it, a court is not obligated to consider

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STATE V. VARGAS

Opinion of the Court

it. See State v. Carver, 160 Ariz. 167, 175 (1989) (“Failure to argue a claim

usually constitutes abandonment and waiver of that claim.”).

¶14 Accordingly, where a defendant raises a claim on appeal that

multiple incidents of prosecutorial misconduct, for which he failed to

object, cumulatively deprived him of a fair trial, consistent with Rule

31.10(a)(7) and Escalante, the defendant must: 1) assert cumulative error

exists; 2) cite to the record where the alleged instances of misconduct

occurred; 3) cite to legal authority establishing that the alleged instances

constitute prosecutorial misconduct; and 4) set forth the reasons why the

cumulative misconduct denied the defendant a fair trial with citation to

applicable legal authority. The defendant is not required to argue that

each instance of alleged misconduct individually deprived him of a fair

trial. Likewise, a defendant need not argue that the trial court committed

fundamental error by failing to sua sponte grant a new trial in each instance.

2.

¶15 Applying this framework to Vargas’s appellate claim of error,

he indisputably argued that cumulative error entitled him to a new trial due

to pervasive prosecutorial misconduct. He cited to specific instances of

alleged misconduct in the record, cited authority in support of the claim

that misconduct occurred, and argued that, overall, the misconduct denied

him a fair trial. Although he did not argue that each instance of

misconduct constituted fundamental error—which he was not required to

do—he did properly present each allegation for the court of appeals to

determine whether misconduct occurred for a cumulative error review.

Whether Vargas has carried his burden of persuasion to establish that

misconduct did occur for each allegation and that they cumulatively denied

him a fair trial is for the court of appeals to determine on remand.

B.

¶16 The State, however, argues that the court of appeals correctly

considered first whether Vargas had preserved each of his individual

claims of prosecutorial misconduct for review before determining whether

error occurred and then assessing whether any error was fundamental.

¶17 The State overlooks the substance of Vargas’s argument. He

did not seek relief on the basis that each alleged instance of prosecutorial

misconduct separately denied him a fair trial. Instead, he presented one

argument for a claim of cumulative error based on multiple allegations of

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STATE V. VARGAS

Opinion of the Court

misconduct. This distinction demonstrates that it is not necessary to

separately argue fundamental error for each allegation of misconduct in a

claim of cumulative error. Were we to require otherwise, appellate

counsel could be compelled to argue that each instance of misconduct

standing alone deprived a defendant of a fair trial when it did not, in

potential violation of Arizona Rule of the Supreme Court 42, Ethical Rule

3.1, which prohibits a lawyer from “bring[ing] . . . or assert[ing] . . . an issue

. . . unless there is a good faith basis in law and fact for doing so that is not

frivolous.” We decline to impose such a requirement.

III.

¶18 In Moreno-Medrano, the court of appeals noted that the

defendant failed to argue on appeal that an alleged error was fundamental

and concluded he therefore waived the argument. 218 Ariz. at 354 ¶¶ 16–

18. The court here relied on Moreno-Medrano to find that because Vargas

did not separately argue fundamental error for each allegation of

prosecutorial misconduct, he waived any argument that the allegations

constituted error. See Vargas, 2019 WL 366444, at *3–8 ¶¶ 13–14, 20–21, 23,

27, 32, 39–40, 42. This, of course, left no alleged instances of prosecutorial

misconduct to consider for a cumulative error review.

¶19 The court of appeals’ reliance on Moreno-Medrano was

misplaced for two reasons. First, Vargas’s claim of cumulative error based

on prosecutorial misconduct is factually distinct from the claims set forth in

Moreno-Medrano and the cases it relies on. Moreno-Medrano, 218 Ariz. at

354 ¶ 17 (citing, in order, State v. Ramsey, 211 Ariz. 529 (App. 2005); State v.

Cons, 208 Ariz. 409 (App. 2004); and Carver, 160 Ariz. 167). The defendant

in Moreno-Medrano failed to argue fundamental error for his claim that the

trial court erred in imposing a criminal restitution order at sentencing. 218

Ariz. at 354 ¶¶ 17–18. Ramsey involved a defendant who failed to present

any argument with respect to a claim of fundamental error based on a

denial of due process. 211 Ariz. at 539 ¶ 30 n.6. In Cons, the defendant

failed to present any argument that the error he alleged went to the

foundation of his case or deprived him of an essential right. 208 Ariz. at

411 ¶ 3. Finally, the defendant in Carver simply listed concerns in his

appellate brief without presenting any argument. 160 Ariz. at 175.

¶20 In contrast, Vargas’s opening brief acknowledged his failure

to object at trial, stated that fundamental error review therefore applied,

and asserted that multiple allegations of misconduct cumulatively denied

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STATE V. VARGAS

Opinion of the Court

him a fair trial. Moreno-Medrano is simply inapplicable to Vargas’s claim

of cumulative error.

¶21 Second, to the extent Moreno-Medrano could be read to mean

that appellants must explicitly argue “fundamental error” to preserve

review of each assertion of error in support of their claim, we reject that

view as overly formulaic. Rule 31.10(a)(7)(B) requires an appellant to

identify the “applicable standard of appellate review with citation to

supporting legal authority” for each issue raised, not for every subordinate

element of each issue. While this requirement is often honored in the

breach, as when an appellant fails to identify the standard, identifies it only

for some issues, or misidentifies it altogether, where a defendant has

identified the proper standard for a claim of cumulative error, reciting the

standard for each individual allegation of error is simply not required.

¶22 If an appellant otherwise presents a claim of error sufficient

to permit the court to apply the appropriate standard of review, it should

do so. However, if a defendant leaves it to an appellate court to identify

the proper standard of review by failing to clearly set it forth, the defendant

may waive further review of what the proper standard is. And, once

again, if the appellant fails to properly develop an argument, the court may

consider it abandoned and waived. See id. at 175.

IV.

¶23 Vargas also asks us to consider distinguishing between

prosecutorial error and prosecutorial misconduct. The Court recently did

so by adopting the distinction proposed by the American Bar Association.

In re Martinez, 248 Ariz. 458, 470 ¶ 47 (2020) (stating that “courts should

differentiate between ‘error,’ which may not necessarily imply a concurrent

ethical rules violation, and ‘misconduct,’ which may suggest an ethical

violation”). Since our resolution of the case before us does not rest on any

distinction between error and misconduct, we do not address it further.

¶24 The State requested that we clarify the standard of review

between claims of harmless error and fundamental error based on

prosecutorial misconduct. Because our determination of the issues

presented does not require us to address this distinction, we decline to do

so.

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STATE V. VARGAS

Opinion of the Court

V.

¶25 We vacate the court of appeals’ decision as to Vargas’s claim

of cumulative error due to pervasive prosecutorial misconduct and

remand for a redetermination consistent with this Opinion.

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