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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUSTIN DWAYNE HILL, Appellant.

No. 1 CA-CR 19-0377

Appeal from the Superior Court in Maricopa County

No. CR2017-006213-001

The Honorable Frank W. Moskowitz, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Linley Wilson

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Robert W. Doyle

Counsel for Appellant

FILED 1-27-2022
STATE v. HILL

Decision of the Court

2

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani joined. Judge Brian Y. Furuya concurred in 

part and dissented in part.

T H U M M A, Judge:

¶1 Defendant Justin Dwayne Hill appeals his burglary 

convictions and resulting sentences. Hill argues reversible error in the 

State’s closing argument, in admitting testimony from police officers and in 

denying his motion for self-representation. Because he has shown no error, 

Hill’s convictions and resulting sentences are affirmed. 

FACTS AND PROCEDURAL HISTORY

¶2 In the predawn hours one day in April 2015, four West Valley 

businesses were burglarized by a person driving a white sport utility 

vehicle. Verrado Coffee Company, in Buckeye, was the first. A few hours 

later, Juice It Up, Casa De Yogurt and Chipotle Mexican Grill, all in the same 

Buckeye shopping center, were burglarized. Police obtained surveillance 

videos, but made no arrest at the time. A few weeks later, a Roliberto’s 

Mexican Restaurant near El Mirage was burglarized at about 4:00 a.m.

Several minutes later, police officers responded to a nearby car accident 

involving Hill and his white Isuzu Rodeo. Later that day, one of the 

responding officers (who, at trial, identified Hill without objection) 

reviewed still images of the video from the Roliberto’s burglary. Those 

images showed a male “wearing a dark hooded sweater over a baseball 

cap” that appeared to be what Hill “was wearing that same morning of the 

collision.” Officers then arrested Hill.

¶3 During their investigation, officers recovered fingerprints

from Verrado Coffee and Chipotle that were identified as Hill’s. The State 

charged Hill with one count of theft (count 1), and five counts of burglary 

in the third degree (counts 2–6). 

¶4 At trial, the State presented surveillance video and photos 

from the burglaries, as well as expert testimony from a fingerprint analyst.

Police officers testified that the clothing Hill was wearing when he was in 

the accident was similar to the clothing worn by the individual in the 

surveillance video. The State argued that Hill used the same approach to 
STATE v. HILL

Decision of the Court

3

commit all of the burglaries, including smashing the front store window 

with a heavy object, opening the cash register and going to the back area to 

look for other valuables. Hill elected to not testify at trial, as was his right.

¶5 After deliberating, the jury found Hill guilty on the burglaries

of Verrado Coffee and Chipotle, the only counts for which fingerprint 

evidence was presented. The jury was unable to reach a unanimous verdict 

on the remaining charges, which were later dismissed. Given his criminal 

history, Hill was sentenced as a Category 3 repetitive offender to two 

maximum, concurrent terms of 12 years in prison. This court has 

jurisdiction over Hill’s timely appeal pursuant to Article 6, Section 9, of the 

Arizona Constitution and Arizona Revised Statutes (A.R.S.) §§ 12-

120.21(A)(1), 13-4031 and 13-4033(A) (2022).

1

DISCUSSION

I. Hill Has Not Shown that the Superior Court Abused Its Discretion 

In Denying His Motion for Mistrial Based on the State’s Reference 

to Facts Not In Evidence During Closing Argument.

¶6 Hill argues the superior court abused its discretion in 

allowing the State to refer to facts not in evidence during closing argument

and denying his motion for mistrial. A mistrial is “the most dramatic 

remedy for trial error and should be granted only when it appears that 

justice will be thwarted” unless a new trial is granted. State v. Adamson, 136 

Ariz. 250, 262 (1983). The denial of a motion for mistrial is reviewed for an 

abuse of discretion. State v. Burns, 237 Ariz. 1, 25 ¶ 105 (2015). Where a 

defendant properly objects on the ground of prosecutorial misconduct and 

preserves the issue for review, this court reviews for harmless error. State v. 

Morris, 215 Ariz. 324, 335 ¶ 47 (2007). Prosecutorial misconduct warrants 

reversal if (1) error occurred and (2) “a reasonable likelihood exists that the 

misconduct could have affected the jury’s verdict, thereby denying [the] 

defendant a fair trial.” Morris, 215 Ariz. at 335 ¶ 46. Prosecutorial 

misconduct is harmless if this court finds beyond a reasonable doubt that it 

did not contribute to or affect the verdict. State v. Hughes, 193 Ariz. 72, 80 ¶ 

32 (1998). 

1 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.
STATE v. HILL

Decision of the Court

4

¶7 The State’s fingerprint expert Penny Dechant testified that

Hill’s known fingerprints matched fingerprints left at Verrado Coffee and 

Chipotle. Dechant did not testify to comparing Hill’s prints with those in 

any database. Instead, to avoid concerns surrounding the admission of 

evidence of a criminal database used in fingerprint comparisons when 

formulating a response to jury questions of Dechant, the parties stipulated 

that the known fingerprints used in the comparison came from Hill.

¶8 During closing, Hill’s counsel argued that Dechant was 

biased and “not independent” and that “fingerprints are subjective.” Hill’s 

counsel added that Dechant “was only asked to examine one person’s 

known print” and compared Hill’s “known print to the unknown profile.” 

At sidebar, the State argued “that is flat wrong,” adding “[d]efense counsel 

knows we put that into a database. We compared it against a lot of other 

people.” Noting the State “believes that” Hill’s counsel “said something 

incorrect,” the court indicated it would allow the State to “correct it on 

rebuttal.” In continuing to address the jury, Hill’s counsel then said “[j]ust 

so we’re clear, . . . there was one set of known prints that the analyst 

analyzed. . . . I don’t want there to be any confusion about that, but that’s 

one person that she had a known set of prints for [that] she analyzed,”

adding “there is a built in bias because she works for the police 

department.”

¶9 During rebuttal closing, after noting that “lawyers comments 

are not evidence,” the State continued that “[d]efense counsel said there 

was only one sample that she tested against. When she started testing, she 

had no idea who it was. She tested against the whole database.” Hill timely 

objected, arguing “[n]ot in evidence,” and the court stated “[t]he record will 

reflect that it is or it isn’t. It’s up to the jury.” The State then continued: “So 

this whole argument that she only tested one person, is factually incorrect. 

Factually incorrect. Because again, as you all know, they didn’t know who 

it was at first. They had to check against the database. Just another example 

of something that was not correct what was said.”

¶10 After jury deliberations began, Hill moved for a mistrial 

“primarily” based on the assertion that the State’s rebuttal argument 

included facts not in evidence when referencing “some database” used by 

the fingerprint analyst. The State responded that it “said that the unknown 

prints were compared against the database.” The State conceded, however,

that there was no trial evidence that the unknown prints were compared 

against the database. The court then recalled stating the State “could in 

rebuttal address whatever the evidence actually was to correct the 

statement. I couldn’t imagine that you would take that to mean you could 

talk about something that wasn’t in evidence to correct that statement.” 
STATE v. HILL

Decision of the Court

5

Ultimately, the court denied the motion for mistrial, concluding that the 

issue did not “come[] close to a mistrial. Because there was a lot of facts, a 

lot of issues and a lot of things discussed and argued about fingerprint 

evidence.”

¶11 On appeal, the State concedes that the prosecutor improperly 

referenced facts not in the trial record in arguing the fingerprints were 

compared against a database. Accordingly, it was improper for the State to 

argue during rebuttal that “[s]he tested against a whole database.” See State 

v. Leon, 190 Ariz. 159, 163 (1997) (“[N]othing justifies going outside the 

record to suggest that there are facts not in evidence refuting the other side’s 

remarks.”). The remaining issue is whether there is a “reasonable 

likelihood” that the improper statement could have affected the verdict and 

denied Hill a fair trial. Morris, 215 Ariz. at 335 ¶ 46.

¶12 Hill has not shown that the improper reference to the 

database could have affected the verdict. The reference was brief and 

isolated and made during rebuttal closing argument. Hill timely objected 

and the court noted that the trial “record will reflect that it is or it isn’t. It’s 

up to the jury.” In fact, it was not in the trial record, meaning the jury had 

no basis to conclude that it was. In addition, the court properly instructed 

that it was required to determine facts based on evidence presented and

that what the lawyers said was not evidence.

¶13 Hill stipulated that the known prints used by Dechant were 

his. Hill’s challenge to the results were that they were “subjective, biased 

and unscientific,” not that they used the wrong source for comparison. 

Accordingly, the origin of the known prints was not disputed. Moreover, 

the brief reference in closing to a “database” did not state that the database 

was one containing fingerprints from individuals with a criminal record.

Furthermore, and in any event, the prosecutor did not state or otherwise 

suggest that Hill’s “known” prints were obtained through or from a 

“criminal” database.

¶14 The Dissent [at ¶¶ 42–47] concludes that the States’ improper 

arguments were not harmless, focusing largely on jury questions asked of 

the fingerprint analyst during trial, one question asked during deliberations

and the verdicts returned. Those questions and the verdict, however, do not 

show the superior court erred in denying Hill’s motion for mistrial. 
STATE v. HILL

Decision of the Court

6

¶15 The jury was active in proposing questions to be asked of the 

witnesses. See Ariz. R. Crim. P. 18.6(e). Nineteen witnesses testified at trial.

The jury submitted 54 numbered questions to be asked of those witnesses. 

Three of those questions were directed to Dechant, the fingerprint analyst. 

¶16 Question 51 asked: “Who provided the comparison for Mr. 

Hill’s fingerprints, meaning who gave you Mr. Hill’s finger prints?” In 

response, the parties stipulated “that the known sample of fingerprints 

came from the defendant” and the court read that stipulation to the jury.

Question 53 asked: “Did you do the ACEV process on latent prints from 

Casa de Yogurt, Juice It Up and/or Roliberto’s? If so, what was the result?”2

Over the State’s objection, the court asked the question; the analyst testified 

that she did not “recall the addresses they came from” and the parties then 

stipulated “that there were no latent prints taken from the locations in the 

question, which was Casa De Yogurt, Juice It Up, and Roliberto’s.”

¶17 Question 52 asked several questions: “Is there an actual finger 

print database? When you make an ‘identification’ and scan the print into 

the computer is it ‘run’ through a program to compare against other prints 

in the database? Was this done in this case? Or is this a fake CSI idea?” Hill 

objected, citing Arizona Rule of Evidence 403, and the State agreed “that we 

don’t want to get into possible – the defendant’s prints were previously in 

the database.” Accordingly, the court did not ask Question 52.

¶18 As the Dissent [at ¶¶ 44–46] indicates, the jury asking these 

questions of the fingerprint analyst reflects a focus on the fingerprint 

testimony it had just heard. But the jury similarly focused on testimony by 

other witnesses in asking questions. Moreover, the jury’s focus on 

fingerprint evidence in asking questions, both temporally and 

substantively, is not surprising. See State v. Hoskins, 199 Ariz. 127, 143 ¶ 58 

(2000) (noting fingerprints and possession of a victim’s property is “strong”

evidence of guilt).

2 The fingerprint analyst testified to using a standard for fingerprint 

verification called “ACE,” which she testified stands for “analysis, 

comparison and evaluation.” In discussing Question 53 outside of the 

presence of the jury, the court clarified that the “ACEV” reference in the 

question was to the ACE verification system.
STATE v. HILL

Decision of the Court

7

¶19 The jury also was active in asking questions during 

deliberations, asking seven questions during the three days of deliberation. 

One such question, asked during the first day of deliberations and a week 

after the fingerprint analyst testified, was: “Were the fingerprints ‘matched’ 

by a computer system or just by the human eye comparing it.” After hearing 

from the parties, the court stated “I don’t know what the term ‘matched’ 

means. It is in quotes, single quotes. But I don’t know if they’re talking 

about when the forensic scientist did her comparison, did she use a 

computer system or just use her eyes and training? I don’t know if that’s 

what they’re asking. Or if they’re asking about the completely separate 

issue which is: Was he first found through an AFIS search?” The court then 

recounted “the only evidence about matching that was in evidence, that I 

recall, was the comparison that she did with the known fingerprints that 

everyone stipulated to were of Mr. Hill.” 

¶20 In response, Hill’s counsel characterized the question as 

asking about when the analyst “did the known print to the unknown print 

comparison, and then the – I believe they’re talking about the verification, 

that – was it simply done by the human eye or was there some type of 

computer system that – that did the verification process? That’s my reading 

of the question, Judge.” The court responded that “the answer . . . would 

just depend on what the forensic expert testified on how she did her 

comparison.” After hearing from both parties, and noting “the reason I 

denied the mistrial motion was because it was just one of many pieces of 

evidence about fingerprints” and the final instruction that “closing 

arguments are not evidence,” without objection by Hill’s counsel, the court 

instructed the jury: “Please rely upon the testimony and other evidence 

admitted during the trial and remember that the lawyers’ closing 

arguments are not evidence.” No subsequent questions addressing 

fingerprint evidence were asked during deliberations, and there is no 

reason to believe that the jury failed to follow this directive. See State v. 

Newell, 212 Ariz. 389, 403 ¶ 68 (2006).

¶21 Finally, the Dissent [at ¶ 46] correctly notes that Hill was 

convicted of the charges where fingerprint evidence linked him to the 

offenses, and the jury was unable to reach a verdict on those charges lacking 

fingerprint evidence. That distinction, however, is consistent with a century 

of Arizona case law acknowledging the force and power of fingerprint 

evidence. See, e.g., State v. Burton, 144 Ariz. 248, 252 (1985) (“Fingerprints 

are direct evidence and their presence alone can be sufficient to prove guilt 

beyond a reasonable doubt.”); State v. Brady, 2 Ariz. App. 210, 213 (1965)

(“It is well established in our state that a crime may be proven by 

circumstantial evidence alone, and that fingerprints are a means of positive 
STATE v. HILL

Decision of the Court

8

identification by which a defendant may be linked with the commission of 

the offense.”) (citing Moon v. State, 22 Ariz. 418 (1921)).

¶22 This court presumes that jurors follow the superior court’s 

instructions, see Newell, 212 Ariz. at 403 ¶ 68, and Hill has offered nothing 

to suggest they did not do so here. Moreover, the court considered the issue 

and concluded that a mistrial was not indicated, a decision to which this 

court owes deference. See Jones, 197 Ariz. 290, 304 ¶ 32 (2000). The record 

presented provides no basis from which to conclude that the presentation 

of fingerprint evidence was improper or denied Hill his right to a fair trial.

Although Hill challenged the fingerprint evidence presented, he did not 

present expert testimony to rebut the State’s expert. Instead, Hill’s counsel 

argued that the State’s expert was “biased,” and suggested that only one set 

of fingerprints had been compared to the prints taken from the crime 

scenes. Accordingly, on this record, Hill has not shown the brief and

isolated reference to a database in rebuttal closing argument provided a 

“reasonable likelihood” that the improper statement could have affected 

the verdict and denied Hill of a fair trial. Morris, 215 Ariz. at 335 ¶ 46. Thus, 

Hill has shown no error in the superior court denying his mistrial motion.

II. The Superior Court Did Not Allow the State to Improperly Shift 

the Burden of Proof.

¶23 Along with challenging the fingerprint expert’s analysis, 

Hill’s closing argument gave examples of further investigation law 

enforcement could have undertaken but did not. In rebuttal closing, the 

State noted the final instructions provided that Hill “is not required to 

produce evidence of any kind” and the State had the “burden to prove 

everything” by proof beyond a reasonable doubt. The State continued that 

Hill’s 

decision not to provide any evidence is not 

evidence of guilt. It’s not. Just because the 

defense didn’t prove – didn’t submit any 

evidence whatsoever doesn’t prove anything. 

It’s still the State’s presumption, but let me be 

clear about something. The defense can. They 

have the same subpoena powers as the State.

Hill’s counsel objected, stating “[b]urden shifting, Judge;” the State 

responded “I have been very clear about the burden, Judge;” and the court 

directed “[m]ove on, Counsel.” 
STATE v. HILL

Decision of the Court

9

¶24 The State then asserted “[t]he defense has the exact same 

ability to call a witness as the State does. They could have called 

somebody.” Referencing the challenges to the fingerprint analysis, the State 

continued “[w]hy didn’t they put somebody on the stand if there is so many 

of these people out there that are saying, oh, there is a different way of 

thinking of fingerprints, and even though for the last 100 years everybody 

in the world has known that fingerprints can identify somebody, suddenly 

that is different today and there’s expert[s] all over the place saying that. 

Where are they.” Hill’s counsel objected, arguing burden shifting and that 

the defense did not have to call witnesses. At sidebar, when the State 

responded that it was “allowed to mention” that Hill was “able to do that,” 

the court said “I think you have though. I think you’ve made your point.”

¶25 The State continued rebuttal closing, stating “[t]he same is 

true of other areas. If this is a mistake, where was the defendant on that 

day? Where [are] the alibi witnesses?” Hill again objected, arguing burden 

shifting, with the court overruling the objection. The State then said 

“[d]efense just got done talking all about how defendant’s family – there is 

no evidence the defendant’s family didn’t take something out of the car. 

Call them. Right? We can talk about that.” When Hill again objected, 

arguing burden shifting, the court responded “[c]ounsel, if you could move 

on.” 

¶26 This argument, Hill asserts on appeal, was an improper 

comment on Hill’s election not to testify in violation of his Fifth 

Amendment rights under the United States Constitution, as well as 

pursuant to Article 2, Section 10 of the Arizona Constitution, and A.R.S. § 

13-117(B). Because a “shifting the burden” objection does not preserve the 

issue of prosecutorial misconduct, review on appeal is for fundamental 

error. State v. Rutledge, 205 Ariz. 7, 13 ¶ 30 (2003). Accordingly, the issue is 

whether (1) there was error (2) that was fundamental (3) that resulted in 

prejudice to Hill. State v. Escalante, 245 Ariz. 135, 141–42, ¶¶ 18–20 (2018).

“Whether a prosecutor’s comment is improper depends upon the context 

in which it was made and whether the jury would naturally and necessarily 

perceive it to be a comment on the defendant’s failure to testify.” Rutledge, 

205 Ariz. at 13 ¶ 33 (citation omitted). Hill has not shown such fundamental 

error resulting in prejudice here.

¶27 Factually, Hill’s argument is not supported by the trial record. 

The State did not comment on Hill’s failure to testify. Asking “where [are] 

the alibi witnesses” does not automatically implicate Hill’s failure to testify,

given that an alibi defense is more logically presented through other 

witnesses, rather than through testimony presented by a defendant. Nor 

did the State otherwise suggest that Hill should have testified. Moreover, 
STATE v. HILL

Decision of the Court

10

the court correctly, and expressly, instructed the jury that (1) the

“[d]efendant need not testify;” (2) the “State must prove guilt beyond a 

reasonable doubt based on the evidence;” (3) “[y]ou must not conclude that 

the defendant is likely to be guilty because the defendant did not testify” 

(4) “[t]he defendant is not required to testify;” (5) “the decision on whether 

or not to testify is left to the defendant acting with the advice of an attorney” 

and (6) Hill’s decision whether to testify “must not . . . affect your 

deliberations in any way.” Thus, the factual predicate for Hill’s argument -

that the State commented on the fact that he did not testify - is lacking.

¶28 Nor do the cases Hill cites show the State improperly 

commented on his decision not to testify. See Rutledge, 205 Ariz. at 14 ¶ 38

(“The prosecutor specifically referred to the videotaped interview and did 

not refer to [defendant’s] decision not to testify. Thus, taken in context, the 

jury would not naturally and necessarily perceive the prosecutor’s remark 

as a comment on [defendant’s] failure to testify. There was no fundamental 

error.”); State v. Dansdill, 246 Ariz. 593, 606 ¶ 49 (App. 2019) (“[W]e 

recognize that a segment of the prosecutor’s argument - in isolation - could 

have been understood as directing the jury’s attention to the defendant’s

failure to testify. . . . However, we do not assess arguments in isolation;” in 

context of closing argument “we decline to characterize an isolated 

linguistic misstep, in the context of an otherwise wholly proper argument, 

as error.”); State v. Blackman, 201 Ariz. 527, 545 ¶¶ 75–76 (App. 2002) (“We 

do not believe that the prosecutor’s remarks in this case constituted an 

impermissible comment on Defendant’s failure to testify. The prosecutor 

did not refer directly to any defendant’s failure to testify. . . . Moreover, the 

trial court, which is in the best position to assess an argument’s effect on the 

jury, concluded that the argument did not direct the jurors’ attention to 

Defendant’s failure to testify. Under these facts, we cannot conclude that 

the jury would ‘naturally and necessarily’ view the prosecutor’s argument 

as a comment on Defendant’s right to remain silent.”) (citation omitted).

¶29 The State’s argument resulting in the burden shifting 

objections addressed the fact that Hill did not present contrary expert 

testimony regarding fingerprints and did not use the subpoena power to 

call witnesses of his own. Those arguments, however, were permissible. See 

State v. Sarullo, 219 Ariz. 431, 437 ¶ 24 (App. 2008) (argument regarding a 

defendant’s failure to call expert witnesses is proper); Dansdill, 246 Ariz. at

605 ¶¶ 44, 45 (“As the trial court correctly found: ‘The prosecution was 

entitled . . . to rebut defense counsel’s closing arguments about missing 

evidence and witnesses and the quality of the proof,’” adding defendant’s 

equal authority to call witnesses is a proper topic of rebuttal) (citation 

omitted). On this record, Hill has not shown the challenged arguments, 
STATE v. HILL

Decision of the Court

11

made during rebuttal closing and viewed in context, constitute burden 

shifting resulting in fundamental, prejudicial error. 

III. Hill Has Shown No Reversible Error Based on Testimony by 

Police Officers About Hill’s Identity. 

¶30 At trial, two police officers who responded to the traffic 

accident and watched the security videos testified that Hill was wearing 

clothing similar to the person on the videos of the burglaries, and 

“appeared to be” the same person shown in the videos. Another police 

officer, who had watched the security videos of the burglaries, testified that 

the same person was shown in the videos. Other than a foundational 

objection for one officer, which was properly overruled by the superior 

court and not challenged on appeal, no objections were made to this 

testimony. On appeal, however, Hill now argues the court abused its 

discretion in allowing such testimony, adding that witnesses other than 

experts “are not to testify to opinions or conclusions.”

¶31 Hill concedes that lay witnesses can provide relevant, nonexpert opinion testimony “rationally based on the witness’s perception.” 

Ariz. R. Evid. 701(a). As the authority Hill relies on acknowledges, a 

“relatively common” example of lay opinion evidence is “identity.” 

McAuliffe & Wahl, Arizona Practice Law of Evidence § 701:2 399 & n.18 (4th

ed. 2008) (citing cases). Although Hill cites State v. Reimer in arguing error, 

that case involved a police officer improperly testifying about the 

truthfulness of a witness’ prior out-of-court statements. 189 Ariz. 239 (App. 

1997). The testimony here did not touch on such topics. On this record, Hill 

has shown no error in allowing this testimony, let alone fundamental error 

resulting in prejudice.

IV. Hill Has Shown No Error in the Superior Court’s Denial of His 

July 2018 Motion for Self-Representation. 

¶32 In July 2018, when represented by counsel, Hill filed a 

handwritten motion asking that the court allow him to waive his right to 

counsel and appoint an attorney to advise him other than his courtappointed counsel. This motion came after the court had determined Hill 

forfeited his right to self-representation in late 2017. This motion also was 

the last of Hill’s various motions asking for new counsel, for the court to 

determine counsel, to proceed as a self-represented party or by his counsel 

asking to withdraw given purported threats Hill had made. 
STATE v. HILL

Decision of the Court

12

¶33 At an August 2018 hearing, the court denied Hill’s motion to 

waive counsel, noting Hill had previously been allowed to represent 

himself and that, given his behavior, he forfeited that right and his waiver 

had been revoked in late 2017. Hill’s behavior included “expletive ridden 

outbursts in open court indicating an inability to properly control himself;” 

swearing at the judge; undertaking contemptable conduct and otherwise 

not properly conducting himself as a self-represented party. That conduct 

caused the court to conclude that Hill “forfeited his right to represent 

himself due to his inability to properly conduct himself before the Court.”

On appeal Hill claims the court erred in revoking his self-representation, an 

issue this court reviews for an abuse of discretion. State v. Gomez, 231 Ariz. 

219, 222 ¶ 8 (2012).

¶34 A criminal defendant has a constitutional right to proceed as 

a self-represented party after knowingly, intelligently and voluntarily 

electing to do so. See, e.g., Faretta v. California, 422 U.S. 806 (1975); State v. 

Gunches, 225 Ariz. 22 (2010); Ariz. R. Crim. P. 6.1(c) & Form 8. That right, 

however, is limited, lasting “only so long as the defendant ‘is able and 

willing to abide by the rules of procedure and courtroom protocol.’” State 

v. Gomez, 231 Ariz. 219, 222 ¶ 8 (2012) (citations omitted). Similarly, the 

court “may terminate self-representation by a defendant who deliberately 

engages in serious and obstructionist misconduct.” Faretta, 422 U.S. at 834 

n.46. “[A] self-represented defendant must not only respect the dignity of 

the courtroom, but also ‘comply with relevant rules of procedure and 

substantive law.’ Thus, a trial court may revoke [self-represented] status for 

serious violations of court orders even if the conduct occurs outside a 

courtroom proceeding.” Gomez, 231 Ariz. at 23 ¶ 15. As a result, “it is within 

the trial court’s discretion to deny a defendant the right to continue his own 

defense if he acts in such a manner as to seriously disrupt the proceedings, 

either by refusing to exercise the decorum necessary to ensuring an orderly 

proceeding or by denying the court due respect.” State v. Whalen, 192 Ariz. 

103, 107 (App. 1997) (citing State v. Martin, 102 Ariz. 142 (1967)).

¶35 Here, in late 2017, after the court initially accepted Hill’s 

waiver and permitted him to represent himself, Hill repeatedly 

demonstrated an inability to comply with these standards. In light of the 

conduct summarized above, the court properly found Hill forfeited his selfrepresentation right. Hill has shown no abuse of discretion in that forfeiture 

finding. See, e.g., Gomez, 231 Ariz. at 23 ¶ 15; Whalen, 192 Ariz. at 107.

¶36 Hill also argues that the court abused its discretion by relying 

on that late 2017 ruling when denying Hill’s renewed motion for selfrepresentation in August 2018. State v. Rigsby, the primary authority Hill 

relies on in making this argument, rejected a claim on appeal that the trial 
STATE v. HILL

Decision of the Court

13

court failed to inform the defendant “of the dangers and disadvantages of 

self-representation.” 160 Ariz. 178, 182 (1989). Although Rigsby addressed 

the process required to waive the right to counsel, it does not suggest that 

self-representation cannot be forfeited based on misconduct. The other 

cases Hill cites similarly do not support a finding of error here. See Gunches, 

225 Ariz. at 25 ¶ 12 (concluding superior court “did not abuse its discretion 

in finding Gunches competent to waive counsel and represent himself”); 

State v. Mott, 162 Ariz. 452, 461 (App. 1989) (rejecting appellate argument 

that the superior court was “required to revoke defendant’s waiver of 

counsel because of his conduct during the trials”).

¶37 “[T]he right to self-representation is not a license for 

misbehavior in the courtroom.” Mott, 162 Ariz. at 460 (citing Faretta, 422 

U.S. at 834 n.26). On the record presented, the superior court reasonably 

concluded that there was no reason to believe Hill’s conduct resulting in 

the forfeiture of his self-representation right in late 2017 had changed by 

August 2018. See id. (noting that “the trial court is better equipped than an 

appellate court to decide whether security measures or revocation of the 

right of self-representation should be invoked to preserve the dignity of the 

courtroom”) (citing authority). Accordingly, Hill has not shown the court 

abused its discretion in denying his renewed request for self-representation

in August 2018.

CONCLUSION

¶38 Hill’s convictions and resulting sentences are affirmed. 

F U R U Y A, Judge, concurring in part, dissenting in part:

¶39 I concur with the Majority that Hill has shown no abuse of 

discretion regarding the superior court’s denial of his August 2018 request 

for self-representation. Likewise, I agree that Hill has not shown any 

reversible error in connection with the court’s admission of testimony by 

the officers as to his identity and concur with the Majority’s discussion 

thereof. Accordingly, I join in Sections III and IV of the Majority’s decision. 
STATE v. HILL

Furuya, J., concurring in part, dissenting in part

14

¶40 I disagree, however, with the Majority’s decision as presented 

in Sections I and II of their decision. The State referenced the use of a 

fingerprint database, which was not only a fact not in evidence, but also 

involved a critical matter that was a key concern of the jury, and upon 

which the case ultimately depended. As such, I respectfully dissent as to 

Section I.

¶41 As to Section II, in my view, the State’s gratuitous reference 

to the failure to present an alibi was fundamental error, given that nothing 

in the case supported such an assertion. Nevertheless, although I concur 

that the error was not reversible because Hill did not show resulting 

prejudice, I write separately to highlight and condemn this statement for 

the fundamental error that it is.

I. The State’s Erroneous Arguments During Rebuttal Were Not 

Harmless

¶42 As the Majority observes, the task at hand is to determine 

whether the prosecutor’s misstatement created a reasonable likelihood of 

affecting the jury’s verdict. Morris, 215 Ariz. at 335 ¶ 46. Although 

prosecutorial error may be harmless if we can find beyond a reasonable 

doubt that it did not contribute to or affect the verdict, the facts of this case 

make such a finding problematic for me. See Hughes, 193 Ariz. at 80 ¶ 32.

¶43 In multiple key instances, the record demonstrates fingerprint 

evidence greatly impacted the jury and indicated the jury’s particular 

susceptibility to influence concerning the State’s errant statement regarding 

use of a database. For example, following Ms. Dechant’s testimony, the jury 

posed multiple questions concerning fingerprint evidence for Dechant to 

answer, including how she obtained Hill’s fingerprints, whether she 

examined fingerprints from all five locations where burglaries had 

occurred, and whether she used a computer database to assist her in her 

analysis of the fingerprints. In particular, the question regarding use of a 

database—which, by stipulation, went unanswered—indicates that this 

jury was already focusing on such matters. That the prosecutor’s 

misstatement of facts not in evidence later answered this very question can 

only serve to increase the danger of prejudice.

¶44 Although the State argues, and the Majority concludes, 

reversal is not warranted because the reference was quick, made briefly 

during rebuttal argument following two weeks of trial testimony, our 

supreme court recently recognized that even brief misstatements can carry 

great prejudice when they are “made in rebuttal argument when the words 

[are] most impactful.” See State v. Murray, 250 Ariz. 543, 553, ¶ 37 (2021). 
STATE v. HILL

Furuya, J., concurring in part, dissenting in part

15

This point seems particularly germane in this case, where the prosecutor’s 

errant statement regarding use of a fingerprint database addressed a matter 

that was demonstrably within the jury’s contemplations.

¶45 Moreover, while its deliberations were underway, the jury 

submitted a written question asking: “Were the fingerprints ‘matched’ by a 

computer system or just by the human eye comparing it?” I believe it 

significant that this question was posed after the State’s improper argument 

and also after receipt of jury instructions. And though the court attempted 

to address it by responding to “rely upon the testimony and other evidence 

admitted during the trial and remember that the lawyers’ closing 

arguments are not evidence,” it nevertheless indicates the jury continued to 

consider the significance a fingerprint database may occupy to the case. The 

deliberation question itself appears to prove the persistent and infectious 

impact the prosecutor’s misstatement worked here.

¶46 The Majority further reasons that the court’s jury instructions 

were sufficient to ameliorate any deleterious effect that could have been 

caused by the prosecutor’s misstatement. But in addition to the jury’s 

deliberation question discussed above—admittedly answered with another 

admonishment—the probability of taint from the misstatement seems 

extraordinarily high. While I agree that we normally presume that jurors 

follow the instructions they are given, Newell, 212 Ariz. at 403 ¶ 68, here, 

the very nature of the jury’s verdict itself calls into question whether the 

court’s instructions were sufficiently effective to prevent unfair 

consideration of the prosecutor’s misstatement of facts not in evidence. The 

jury only convicted Hill of the two burglaries where fingerprint evidence 

supported the charges—Chipotle and Verrado Coffee Company. The 

remaining counts were dismissed, including burglaries of those stores in 

the immediate vicinity of Chipotle, despite the State’s presentation of 

evidence and argument, which was intended to establish that these 

burglaries were committed by the same perpetrator. At the very least, these 

verdicts demonstrate the delicate and tentative balance of the evidence in 

the case against Hill, which magnifies the danger of prejudice due to the 

prosecutor’s error.

¶47 Moreover, the prosecutor’s statements as to use of a database

went to the very heart of the case. Given the centrality that fingerprint 

evidence clearly occupied in this case and the uniquely-positioned impact 

threatened by the prosecutor’s misstatement, on this record, I believe “a 

reasonable likelihood exists that the [prosecutor’s error] could have affected 

the jury’s verdict, thereby denying [the] defendant a fair trial.” Morris, 215 

Ariz. at 335 ¶ 46. Therefore, I would vacate the verdicts and sentences and 

remand for retrial on this basis. 
STATE v. HILL

Furuya, J., concurring in part, dissenting in part

16

II. The State Improperly Commented On Hill’s Failure To Testify 

During Closing Rebuttal Argument

¶48 During rebuttal closing, the prosecutor argued, “If this 

[referring to the criminal charges and proceeding in general] is a mistake, 

where was defendant on that day? Where is [sic] the alibi witnesses?” 

Citing the need to interpret a prosecutor’s arguments in context, the 

Majority concludes that “[o]n this record, Hill has not shown the challenged 

arguments, made during rebuttal closing and viewed in context, constitute 

. . . fundamental error resulting in prejudice.” In so concluding, the Majority 

relies chiefly upon the fact that the prosecutor did not expressly say that 

Hill should testify or comment specifically on Hill’s failure to testify, as well 

as the court’s jury instructions concerning burden of proof as corrective. 

Respectfully, I disagree that—given the context of the entire case as a whole 

and the prosecutor’s argument more specifically—this statement by the 

prosecutor was not fundamental error. However, I concur that the 

argument is nevertheless unavailing because, pursuant to the requirements 

under Escalante, no prejudice can be shown. I write separately to condemn 

the practice of making gratuitous and unsupported comments on a 

defendant’s failure to present an alibi by the strongest means available to 

me.

¶49 Though the prosecutor did not directly comment on Hill’s 

failure to testify, both direct and indirect comments made by a prosecutor 

to a jury on a defendant’s failure to testify at trial are impermissible. 

Rutledge, 205 Ariz. at 12, ¶ 26. Taking a prosecutor’s comment in context, 

such comment is considered improper if a jury would naturally and 

necessarily perceive it to be a comment on the failure of the defendant to 

testify at trial, State v. Schrock, 149 Ariz. 433, 438 (1986), and this includes 

questions in which the defendant is the only person who could explain or 

contradict the evidence, State v. Still, 119 Ariz. 549, 551 (1978). Thus, the 

question of fundamental error rests upon whether the prosecutor’s 

comment, taken in context, constitutes a matter that only Hill was 

competent to explain or contradict.

¶50 The Majority notes, accurately, that the prosecutor’s comment 

about Hill’s failure to present an alibi was delivered as part of a larger 

argument, the general point of which was that Hill failed to call any defense 

witnesses at all, including a rebuttal fingerprint expert or family members. 

I agree with the Majority it was not error to point out that Hill did not call 

a rebuttal fingerprint expert or that he did not call any family member to 

deny removal of items from his impounded vehicle. Sarullo, 219 Ariz. at 437 

¶ 24. These statements were not error because Hill placed these matters 

squarely at issue in his own closing argument and the State was “entitled . 
STATE v. HILL

Furuya, J., concurring in part, dissenting in part

17

. . to rebut defense counsel’s closing arguments about missing evidence and 

witnesses and the quality of the proof.” Dansdill, 246 Ariz. at 605 ¶ 44. But 

such permissible argument on a broader point did not excuse a wholly 

gratuitous and unfounded reference to Hill’s failure to produce an alibi, 

when alibi was not at issue.

¶51 The State argues a lack of error because Hill was not the only 

person who could have presented evidence as to his whereabouts. 

However, a review of the record reveals neither witnesses, nor evidence, 

nor argument, nor disclosures, indeed, absolutely nothing in the entirety of 

the course of this long case ever raised the issue of alibi, or lack thereof. It 

was not until his rebuttal closing argument, when the prosecutor called out 

Hill’s failure to offer any witnesses that could account for where he was in 

the very early-morning hours on the days of the burglaries, that the issue 

of possible alibi was even mentioned. The prosecutor’s argument about 

failure to establish an alibi was entirely unsupported and unprompted. 

Without any assertion of this defense and without any evidence whatsoever 

to even suggest its applicability, the argument was the equivalent of an 

open invitation to the jury to entertain, in a vacuum, that there 

hypothetically exists someone, somewhere who could answer this 

question.3 This argument was improper because either it invited the jury to 

speculate as to the existence of such witnesses, State v. Woods, 141 Ariz. 446, 

455 (1984) (“argument must not be based on matters which were not or 

could not have been received in evidence.”), or worse, it impermissibly 

suggested the jury consider Hill’s own failure to testify as to his 

whereabouts during the crimes. Still, 119 Ariz. at 551. 

¶52 Our supreme court’s decision in State v. Schrock acknowledges 

the problematic nature of referring to a defendant’s lack of alibi evidence. 

In Schrock, the State argued a defendant in a murder trial “[had] no alibi for 

the time of death.” 149 Ariz. at 439. Unlike the present case, however, the 

defendant in Schrock had initially alleged that he had an alibi, though he did 

not develop that theory at trial. Thus, while the Schrock Court remarked the 

prosecutor’s comment was “questionable,” it ultimately determined “[t]he 

comment related only to the fact that the defendant in his statements to the 

officers did not support the alibi defense [the] defendant had pled.” Id. 

3 Reference to Hill’s family as potential alibi witnesses is likewise 

impermissible because no evidence was presented at any point indicating 

that any of Hill’s family were competent to testify about where he was 

during any of the crimes charged. Without such foundation, none were 

qualified to serve as potential alibi witnesses.
STATE v. HILL

Furuya, J., concurring in part, dissenting in part

18

¶53 Contrary to the defendant in Schrock, Hill did not plead an 

alibi defense of any kind. Therefore, if one is to assume that the jury follows 

the instruction to decide a case solely based on the evidence presented and 

to eschew speculation, the prosecutor’s questions, “If this is a mistake, 

where was defendant on that day? Where is [sic] the alibi witnesses?” could 

only be answered by the defendant. Thus, I respectfully disagree with the 

Majority’s conclusion thereon, and believe the prosecutor’s gratuitous 

statement constitutes error. Further, I believe such error was also 

fundamental. 

¶54 Fundamental error goes to the foundation of the case, denies 

a fundamental right, or is of such magnitude that the defendant could not 

have possibly received a fair trial. Escalante, 245 Ariz. at 140, ¶¶ 13, 16. An 

error denies an essential right if it “deprives the defendant of a 

constitutional or statutory right necessary to establish a viable defense or 

rebut the prosecution’s case.” Escalante, 245 Ariz. at 141, ¶ 19. 

¶55 Any comment made by a prosecutor regarding a defendant’s 

failure to testify may violate the Fifth Amendment. Griffin v. California, 380 

U.S. 609, 615 (1965). Absent contextual matters that would otherwise excuse 

failure to observe a defendant’s Fifth Amendment rights, “[n]ormally such 

a comment [would] constitute[] fundamental error.” State v. Arredondo, 111 

Ariz. 141, 143 (1974). Again, we look to “whether the jury would naturally 

and necessarily perceive it to be a comment on the defendant’s failure to 

testify.” Rutledge, 205 Ariz. at 13, ¶ 33. Further, “[t]o be constitutionally 

proscribed, a comment must be adverse; that is, it must support an 

unfavorable inference against the defendant and, therefore, operate as a 

penalty imposed for exercising a constitutional privilege.” State v. Ramos, 

235 Ariz. 230, 235, ¶ 13 (App. 2014). 

¶56 Here, the prosecutor’s statement directly called into question 

Hill’s innocence by initiating the argument with, “If this is a mistake, where 

was defendant on that day?” (Emphasis added.) On the evidence in this 

record, Hill was the only individual who the jury knew to be competent to 

explain or contradict the prosecutor’s statement. See Still, 119 Ariz. at 551. 

Hill’s silence was therefore used as a penalty to draw a negative inference 

against him that the criminal proceedings had been no mistake. Thus, the 

prosecutor’s statement here was fundamental error.

¶57 To be reversible, however, Hill must also establish that this 

fundamental error prejudiced him. Escalante, 245 Ariz. at 142, ¶ 21. The 

applicable inquiry is whether “without the error, a reasonable jury could 

have reached a different result, even if substantial evidence of guilt exists.” 

Id. at 144, ¶ 34. Here, fundamental error notwithstanding, I believe under 
STATE v. HILL

Furuya, J., concurring in part, dissenting in part

19

Escalante, Hill cannot demonstrate the required showing of prejudice. As 

required under an Escalante prejudice analysis, if one disregards all 

evidence related to the alibi question—consisting, as it does, exclusively of 

the prosecutor’s prohibited remark—a reasonable jury could still find Hill 

guilty. As the Majority also discussed, this conclusion is further bolstered 

by the numerous jury instructions the court delivered on the State’s burden 

of proof, the presumption of the Defendant’s innocence, and the specific 

observance of Defendant’s Fifth Amendment rights. Finally, the jury’s 

decision to convict only on those counts associated with locations where 

fingerprint evidence was found to implicate Hill also implies that the 

prosecutor’s errant statement was not determinative.

¶58 Regardless, the State is cautioned that it is inappropriate to 

make gratuitous comments on a defendant’s lack of alibi, where it has not 

been put in issue by the defendant and the evidence does not support such 

an argument.