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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 ANDREW DEVON MURRAY, Appellant.

                            No. 1 CA-CR 17-0423
                              FILED 11-1-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-104086-001
                  The Honorable Mark H. Brain, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant
                            STATE v. MURRAY
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Vice Chief Judge Peter B. Swann and Judge David D. Weinzweig
joined.


J O N E S, Judge:

¶1            Andrew Murray appeals his convictions and sentences
arising from a stabbing incident. Murray argues the trial court erred by:
(1) allowing the State to peremptorily strike a potential juror in violation of
Batson v. Kentucky, 476 U.S. 79, 89 (1986); (2) precluding him from
impeaching a witness with evidence that the witness anticipated favorable
treatment in an unrelated criminal matter in exchange for his testimony;
and (3) permitting a detective to testify regarding the out-of-court
statements of a witness and the victim. For the following reasons, we
affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            In January 2015, Murray hit the victim in the head with a steel
rod before repeatedly stabbing him with a knife, causing life-threatening
injuries.1 Robert M. found the victim bleeding in the street and called 9-1-1.
The victim described the attack and his attacker to both Robert and the first
responders. Meanwhile, Murray cleaned the knife and the crime scene with
bleach.

¶3           The jury found Murray guilty of one count of attempt to
commit second degree murder, one count of tampering with physical
evidence, and two counts of aggravated assault.2 The court imposed
concurrent terms of imprisonment, the longest of which was 17.5 years.


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, ¶ 2 n.2 (App. 2015) (quoting State v.
Valencia, 186 Ariz. 493, 495 (App. 1996)).

2     The State also charged Murray with one count of influencing a
witness, but the jury was unable to agree on a verdict and that charge was
eventually dismissed without prejudice on the State’s motion.


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                            STATE v. MURRAY
                            Decision of the Court

Murray timely appealed, and we have jurisdiction pursuant to Arizona
Revised Statutes §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                                DISCUSSION

I.     Peremptory Strike of Juror 79

¶4             During voir dire, a potential juror (Juror 79) reported that his
son had been arrested for aggravated assault and battery in California in
2011.     Murray, an African-American, challenged the prosecutor’s
peremptory strike of Juror 79, also African-American, arguing the strike
was race-based. In response, the prosecutor explained she struck Juror 79
because of a prior arrest for assault. When Murray’s counsel clarified it was
Juror 79’s son who had been arrested for assault and battery, the prosecutor
immediately corrected herself: “Sorry, it was his son not him.” The court
accepted the prosecutor’s explanation, found it was race-neutral, and
denied Murray’s challenge. Murray now argues the State’s initial
explanation for the peremptory strike of Juror 79 — the juror’s own criminal
history — was factually inaccurate and, therefore, indicates a pretextual
rationale for a race-based strike.

¶5             The Equal Protection Clause of the Fourteenth Amendment
prohibits peremptory strikes of prospective jurors based “solely on account
of their race or on the assumption that [jurors of a particular race] as a group
will be unable impartially to consider the State’s case against a [defendant
of that same race].” Batson, 476 U.S. at 89. Resolution of a Batson challenge
requires three inquiries:

       (1) the party challenging the strikes must make a prima facie
       showing of discrimination; (2) the striking party must provide
       a race-neutral reason for the strike; and (3) if a race-neutral
       explanation is provided, the trial court must determine
       whether the challenger has carried its burden of proving
       purposeful racial discrimination.

State v. Decker, 239 Ariz. 29, 31, ¶ 6 (App. 2016) (quotation omitted). “It is
not until the third step that the persuasiveness of the justification becomes
relevant.” State v. Newell, 212 Ariz. 389, 401, ¶ 54 (2006) (quoting Purkett v.
Elem, 514 U.S. 765, 768 (1995)). Then the court must evaluate the credibility
of the proffered explanation after considering factors such as “the
prosecutor’s demeanor; . . . how reasonable, or how improbable, the
explanations are; and . . . whether the proffered rationale has some basis in
accepted trial strategy.” Miller-El v. Cockrell, 537 U.S. 322, 339 (2003); accord
Newell, 212 Ariz. at 401, ¶ 54. Given the fact-intensive nature of the inquiry,


                                       3
                            STATE v. MURRAY
                            Decision of the Court

we defer to the trial court’s decision unless clearly erroneous. Newell, 212
Ariz. at 400-01, ¶¶ 52, 54 (citing Miller-El, 537 U.S. at 240, and State v. Cruz,
175 Ariz. 395, 398 (1993)).

¶6             We find no Batson error. Contrary to Murray’s assertions
otherwise, the prosecutor immediately clarified it was Juror 79’s son who
had previously been arrested on charges similar to those facing Murray.
The prosecutor’s perception that Juror 79 would be sympathetic to Murray
under the circumstances is supported by the record and qualifies as a race-
neutral reason for the strike. See State v. Hernandez, 170 Ariz. 301, 305-06
(App. 1991) (“As long as it is not based upon race, perceived sympathy on
the part of a prospective juror toward a defendant is a legitimate basis for a
peremptory strike.”) (collecting cases); cf. State v. Gallardo, 225 Ariz. 560,
565, ¶ 12 (2010) (finding “criminal history” a race-neutral reason to strike a
juror).

II.    Impeachment of Robert

¶7             At trial, Murray sought to impeach Robert with evidence of
then-pending felony charges related to “sex crimes dealing with [Robert’s]
child” and his expectation of a better plea agreement in exchange for his
testimony against Murray. The trial court denied the request after finding
the probative value of the evidence was outweighed by “the danger of
prejudice[,] . . . confusing issues, misleading jury, wasting time . . . under
Rule 403.” Relying upon State v. Little, 87 Ariz. 295 (1960), Murray contends
the court improperly precluded the impeachment evidence.

¶8            “Evidence offered to impeach the credibility of a witness by
showing that he has a motive to testify on behalf of the State or against the
defendant is generally admissible as proper cross-examination.” Id. at 300.
But even relevant evidence may be excluded “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the
issues, [or] misleading the jury.” Ariz. R. Evid. 403. “Unfair prejudice”
means “an undue tendency to suggest a decision on an improper basis, such
as emotion, sympathy or horror.” State v. Gulbrandson, 184 Ariz. 46, 61
(1995) (citing State v. Schurz, 176 Ariz. 46, 52 (1993)). Because “[t]he trial
court is in the best position to balance the probative value of challenged
evidence against its potential for unfair prejudice,” it has broad discretion
in deciding whether to exclude evidence as unfairly prejudicial. State v.
Harrison, 195 Ariz. 28, 33, ¶ 21 (App. 1998) (citing State v. Via, 146 Ariz. 108,
122 (1985)).




                                       4
                            STATE v. MURRAY
                            Decision of the Court

¶9             Even viewing the evidence in the light most favorable to
Murray, “maximizing its probative value and minimizing its prejudicial
effect,” id. (quoting State v. Castro, 163 Ariz. 465, 473 (App. 1989)), the
probative value of the impeachment evidence was nominal. Robert had not
been charged with any offense at the time he observed the victim lying in
the street and called 9-1-1. He therefore had no motive to fabricate an
observation in the hope that it would lessen his penalty in a future
unrelated criminal case. Cf. State v. Todd, 244 Ariz. 374, 380, ¶ 15 (App. 2018)
(“Because reliable evidence corroborating [the witness]’s testimony
predated his need for leniency, the probative value of [the then-pending]
charges [for an unrelated incident] was surely minimal.”). In fact, Robert
personally advised the trial court that he had no expectation of leniency in
his own criminal case and his only motive for testifying was to help the
victim. Given the limited probative value of the impeachment evidence and
the highly inflammatory nature of the charges — sexual conduct with a
minor family member — we find no abuse of discretion in its exclusion.

III.   Hearsay

¶10            Murray argues the trial court erroneously permitted a
detective to testify regarding statements made by a witness and the victim
during his investigation on the grounds that they constituted inadmissible
hearsay. Hearsay is an out-of-court statement used to prove the truth of the
matter asserted and is generally inadmissible. State v. Payne, 233 Ariz. 484,
502, ¶ 49 (2013); Ariz. R. Evid. 801(c), 802. We review the court’s evidentiary
rulings for an abuse of discretion. See State v. Martin, 225 Ariz. 162, 166,
¶ 16 (App. 2010) (quoting State v. Bronson, 204 Ariz. 321, 324, ¶ 14 (App.
2003)).

¶11           We find no error because the statements Murray challenges
were not hearsay. Both the witness and the victim testified and were subject
to cross-examination. After Murray attacked their credibility, their prior
consistent statements to the detective were “not hearsay” and admissible
pursuant to Arizona Rule of Evidence 801(d)(1)(B)(ii) “to rehabilitate the
declarant’s credibility as a witness when attacked on another ground.”




                                       5
                  STATE v. MURRAY
                  Decision of the Court

                      CONCLUSION

¶12   Murray’s convictions and sentences are affirmed.




                 AMY M. WOOD • Clerk of the Court
                 FILED: AA




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