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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

          JJAMAR FRANCSWAUR WASHINGTON, Appellant.

                             No. 1 CA-CR 13-0643
                              FILED 2-17-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR 2012-121459-001
              The Honorable William L. Brotherton, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By David Simpson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Thomas Baird
Counsel for Appellant
                         STATE v. WASHINGTON
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined.


C A T T A N I, Judge:

¶1          JJamar Francswaur Washington appeals his conviction of
second degree murder and the resulting sentence. For reasons that follow,
we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             A grand jury indicted Washington on a charge of second
degree murder for intentionally shooting the victim with a shotgun. The
night before the shooting, L.L., who had been staying at Washington’s
house in west Phoenix for over a week, saw Washington holding a shotgun
while sitting in a car at the house. Washington told L.L. that he should leave
because “there are going to be some problems.”

¶3            The next morning, L.L. and G.N.—who had stopped by to
visit Washington—were sitting outside smoking marijuana when the
victim stopped his car and began arguing with G.N. The victim got out of
his car and started walking toward the two men.

¶4          When the victim was nearly to the edge of the street,
Washington came out of the house with the shotgun L.L. had seen the night
before. Washington shot the victim in the abdomen without saying
anything.

¶5             Washington walked back into the house and told his
girlfriend’s daughter that he had just killed a man. Washington called 9-1-
1 and told the dispatcher that six Hispanic men were in front of his house
engaged in a gunfight. Meanwhile, G.N. and L.L. fled the scene. When
G.N.’s girlfriend arrived at Washington’s house later to pick up their young
son, she heard Washington ask someone where he should hide the weapon.

¶6          Washington was arrested the following day. He denied
knowing the victim or shooting him, but he told a detective that he been set
up by a Hispanic man from his past; Washington stated that the Hispanic
man and his associates had held him captive for several days the previous


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                          STATE v. WASHINGTON
                            Decision of the Court

week, had stolen his car, and had been following him, making him
paranoid.

¶7            A jury convicted Washington of second-degree murder, and
the court sentenced him to a term of 22 years’ imprisonment. Washington
timely appealed, and we have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).1

                                DISCUSSION

I.     Witnesses’ Gang Affiliations.

¶8          Washington argues that the superior court abused its discretion
and denied him his constitutional right to present a complete defense by
excluding evidence of the witnesses’ alleged gang affiliations. Washington
argues that this evidence was necessary to support his defense that he did
not shoot the victim, and that it was instead L.L. or G.N. who committed
the offense. We review a superior court’s evidentiary rulings on potential
third-party culpability evidence for an abuse of discretion. State v. Prion,
203 Ariz. 157, 161, ¶ 21, 52 P.2d 189, 193 (2002).

¶9            A criminal defendant is constitutionally entitled to “a
 meaningful opportunity to present a complete defense.” Crane v. Kentucky,
 476 U.S. 683, 690 (1986) (citation omitted). This right to present evidence is
 subject to restriction, however, by application of reasonable evidentiary
 rules. See United States v. Scheffer, 523 U.S. 303, 308 (1998). “[T]he
 Constitution permits judges to exclude evidence that is repetitive, only
 marginally relevant or poses an undue risk of harassment, prejudice, or
 confusion of the issues.” Holmes v. South Carolina, 547 U.S. 319, 326–27, 329–
 31 (2006) (internal punctuation and citations omitted).

¶10          Under Arizona law, the admission of third-party culpability
evidence is governed by Evidence Rules 401 through 403. State v. Machado,
226 Ariz. 281, 284, ¶ 16, 246 P.3d 632, 635 (2011). To be relevant under
Arizona Rule of Evidence 401, third-party culpability evidence “need only
tend to create a reasonable doubt as to the defendant’s guilt.” State v.
Gibson, 202 Ariz. 321, 324, ¶ 16, 44 P.3d 1001, 1004 (2002) (emphasis
omitted). A defendant may not, however, “in the guise of a third-party
culpability defense, simply ‘throw strands of speculation on the wall and
see if any of them will stick.’” Machado, 226 Ariz. at 284 n.2, ¶ 16, 246 P.3d

1     Absent material revisions after the relevant date, we cite a statute’s
current version.



                                       3
                         STATE v. WASHINGTON
                           Decision of the Court

at 635 n.2 (citations omitted). Moreover, third-party culpability evidence is
subject to balancing under Arizona Rule of Evidence 403 and may thus be
precluded “if its probative value is substantially outweighed by a danger
of . . . unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” See
also Machado, 226 Ariz. at 284 n.2, ¶ 16, 246 P.3d at 635 n.2.

¶11           Prior to trial, the State filed a motion in limine to preclude
Washington from introducing testimony regarding any gang affiliations of
witnesses, arguing that such testimony was irrelevant because at most the
evidence suggested that G.N. hung out with gang members when he was
younger, and because no evidence suggested that the victim was a member
of a gang or that the shooting was gang related.

¶12           Washington’s counsel conceded that he had no definitive
evidence that the victim was affiliated with any gang, but argued that a car
club to which the victim belonged could have been affiliated with a gang,
G.N. could have viewed a red bandana and a Dallas Cowboys lanyard in
the victim’s car as gang indicia, or the victim could have been vehemently
anti-gang. Counsel argued that any of these circumstances could have
provided a motive for the victim to initiate the hostilities and for G.N. to
shoot the victim. The superior court granted the State’s motion to preclude,
finding the gang connection “too tenuous.”

¶13            The court nevertheless allowed Washington’s counsel to
question the witnesses outside the presence of the jury to offer proof of gang
affiliation or motivation. In response to this questioning, L.L. denied any
involvement in gangs; the victim’s brother denied that his brother’s car club
had any gang affiliation, but said he was not sure if it was anti-gang; G.N.
said he was not a gang member and did not know anything about gangs in
the west Phoenix neighborhood where the shooting occurred, although he
had flashed gang signs in pictures he posted online, and, years before, he
had associated with members of the Vista Blood gang in south Phoenix;
G.N.’s girlfriend testified that G.N. had been associated with the Bloods
gang when he was in high school in Coolidge, but not in Phoenix; and one
of Washington’s neighbors testified that he had never heard that anyone at
Washington’s house was a gang member.

¶14             The court then reaffirmed its decision, noting that the offers
of proof primarily centered on G.N.’s past and showed very little evidence
of gang affiliation, and that “[t]here was virtually nothing with regard to
the victim about anything that came out that there was any type of gang
affiliation or anything like that.”


                                      4
                         STATE v. WASHINGTON
                           Decision of the Court

¶15            Under these circumstances, the superior court did not abuse
its discretion or deprive Washington of the opportunity to present a
complete defense by precluding evidence of the witnesses’ gang affiliations
(if any). See Gibson, 202 Ariz. at 324, ¶ 16, 44 P.3d at 1004. Absent evidence
that the victim was affiliated with a gang (or was vehemently anti-gang) or
that the victim’s argument with G.N. had any relationship to gangs, the
evidence that G.N. had previously associated with a gang would not have
tended to create a reasonable doubt as to Washington’s guilt. This evidence
was more in the nature of “strands of speculation” offering “only a possible
ground of suspicion against another,” an insufficient basis to introduce it.
See Machado, 226 Ariz. at 284 n.2, ¶ 16, 246 P.3d at 635 n.2; State v. Bigger,
227 Ariz. 196, 209, ¶ 44, 254 P.3d 1142, 1155 (App. 2011).

¶16           Washington’s additional argument that G.N.’s gang
affiliation was relevant to show that other witnesses might have been
intimidated into implicating Washington fails because there was no
evidence or proffer of evidence suggesting that G.N. intimidated any
witnesses. Washington speculates—for the first time on appeal—that
G.N.’s gang affiliation would have made him “more willing than the
ordinary person to resort to violence,” and would explain why L.L. (who
was not in a gang) would have joined G.N. in shooting the victim and
blaming Washington, who, according to the presentence report, was a
documented Crips gang member. But L.L. had been staying with
Washington and there was no evidence of a dispute between him and
Washington or between Washington and other witnesses.             Thus,
Washington’s attenuated speculation regarding witness intimidation
would not have tended to create a reasonable doubt as to Washington’s
guilt or otherwise made gang evidence admissible.

II.    Washington’s Paranoia.

¶17           Washington next argues that the superior court abused its
discretion by allowing the State to introduce evidence of his paranoia at the
time of the shooting. Washington asserts that the court essentially
permitted the State to present impermissible character evidence to prove
actions in conformity therewith. See Ariz. R. Evid. 404(a). We apply an
abuse of discretion standard in reviewing the superior court’s decision to
admit evidence. State v. Dann, 220 Ariz. 351, 368, ¶ 89, 207 P.3d 604, 621
(2009).

¶18           The State asserted at trial that Washington’s statements to the
detective after his arrest—that he was paranoid about a former cellmate he
believed was coming after him—suggested a motive for an otherwise-


                                      5
                         STATE v. WASHINGTON
                           Decision of the Court

unexplainable shooting. After reviewing the transcript of Washington’s
videotaped interview, the court referenced Washington’s belief that a
former cellmate suspected Washington had “snitched him off on a
robbery,” and that Washington was concerned that this person “was after
him,” that people were passing his home, and that the former cellmate and
his associates “may be out to get him.” The court ruled that Washington’s
statements regarding his own paranoia were admissible, but ordered them
sanitized to remove any indication that he had been incarcerated.

¶19            The court did not abuse its discretion by admitting
Washington’s statements to show his motive for the shooting.
Washington’s self-admitted paranoia was not offered to show a character
trait to prove action in conformity therewith. Rather, the admissions were
offered for the relevant and permissible purpose of showing Washington’s
state of mind and motive for an otherwise unexplained murder of a
stranger. See State v. Hargrave, 225 Ariz. 1, 8, ¶ 14, 234 P.3d 569, 576 (2010)
(“[M]otive is relevant in a murder prosecution”). Nor was the use of the
term “paranoia” unfairly prejudicial, given that it was Washington himself
who repeatedly used this word to describe his state of mind before the
shooting. The State’s argument that Washington’s admitted paranoia was
an “irrational fear of something or someone that doesn’t exist” that
supplied the motive for an otherwise unexplained murder was a reasonable
argument based on the evidence at trial, including the witnesses’
descriptions of Washington shooting the victim without saying anything
and Washington’s description of his paranoia and the circumstances that
gave rise to it. Accordingly, the court did not abuse its discretion by
admitting Washington’s statements that he was paranoid, and the State’s
characterization of paranoia as a motive for the shooting was not improper.

III.   Closing Argument.

¶20            Washington argues that the prosecutor engaged in
misconduct by asserting during rebuttal closing argument that if G.N. had
shot the victim, it would make no sense for L.L. to get into the car with him
and flee the scene. Washington contends that evidence of a shared gang
affiliation (or, alternatively, fear of G.N.’s gang affiliation) would have
explained L.L.’s conduct, and that the prosecutor’s argument therefore
unfairly took advantage of the court’s earlier ruling precluding reference to
gang ties.

¶21           Prior to closing argument, Washington filed a motion in
limine seeking in part to preclude the prosecutor from “arguing that no
evidence existed where evidence had merely been precluded.” Washington


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                         STATE v. WASHINGTON
                           Decision of the Court

did not object, however, during closing argument to what he now argues
was an improper statement by the prosecutor.

¶22            Assuming without deciding that Washington’s motion in
limine adequately preserved this issue, we conclude that Washington has
not established error. To determine whether a prosecutor’s remarks were
improper, we consider (1) whether the remarks called to the attention of
jurors matters they would not be justified in considering, and (2) the
probability that the jurors were influenced by the remarks. State v. Jones,
197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000). To warrant reversal, the
defendant must show “that the prosecutor’s misconduct ‘so infected the
trial with unfairness as to make the resulting conviction a denial of due
process.’” State v. Morris, 215 Ariz. 324, 335, ¶ 46, 160 P.3d 203, 214 (2007)
(citation omitted). “Prosecutorial misconduct constitutes reversible error
only if (1) misconduct exists and (2) ‘a reasonable likelihood exists that the
misconduct could have affected the jury's verdict, thereby denying
defendant a fair trial.’” Id. (citation omitted).

¶23           The prosecutor did not engage in misconduct by arguing that
it would make no sense for L.L. to flee the scene with G.N. if G.N. had just
killed a person. Defense counsel had suggested during closing argument
that either G.N. or L.L. was the real killer. The prosecutor’s rebuttal was
responsive to this argument, and the prosecutor’s suggestion that L.L.
would not have jumped into G.N.’s car and fled the scene with him had he
just seen G.N. murder the victim was based on a common-sense inference
drawn from the evidence presented. Moreover, as the superior court
recognized, the argument did not take unfair advantage of the pre-trial
ruling precluding gang evidence because there was no evidence that the
victim was a gang member, that L.L. was a gang member (much less a
member of the same gang with which G.N. had associated), or that the
shooting was gang-motivated. Accordingly, the prosecutor’s argument
was not improper and simply directed the jurors to draw a reasonable
inference from the evidence. See State v. Buccheri-Bianca, 233 Ariz. 324, 328–
29, ¶¶ 12–15, 312 P.3d 123, 127–28 (App. 2013).




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                STATE v. WASHINGTON
                  Decision of the Court

                     CONCLUSION

¶24   Washington’s conviction and sentence are affirmed.




                         :ama




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