                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
             3

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).


                                       4
                              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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