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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 10-23-2018
STATE v. MARKS

Decision of the Court

2

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).
STATE v. MARKS

Decision of the Court

3

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.
STATE v. MARKS

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¶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 

Dessureault3 motion . . . regarding all victims and witnesses.” He asserts 

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).
STATE v. MARKS

Decision of the Court

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¶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 
STATE v. MARKS

Decision of the Court

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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 firstdegree 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).
STATE v. MARKS

Decision of the Court

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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.