                                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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                             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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