State v. Brown

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

COWAN LAMAR BROWN, Appellant.

No. 1 CA-CR 21-0247
FILED 6-30-2022

Appeal from the Superior Court in Maricopa County
No. CR2018-158216-001
The Honorable Stephen M. Hopkins, Judge

AFFIRMED IN PART, VACATED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jennifer Roach
Counsel for Appellant
 STATE v. BROWN
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Brian Y. Furuya joined.

P E R K I N S, Judge:

¶1 Cowan Lamar Brown appeals his second-degree murder
conviction and a $9 Victims’ Rights assessment. For the following reasons,
we vacate the Victims’ Rights assessment but affirm Brown’s conviction
and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013). One night in
November 2018, Victim told his mother that he was going to the store. Soon
after he stepped out of their apartment, she heard gunshots. One of their
neighbors, Karin Castro-Rios, heard those gunshots and ran toward the
shooting. Castro-Rios called 911 after seeing Victim lying on the ground,
screaming.

¶3 Two nearby officers, working an unrelated call, also heard the
gunshots and quickly arrived at the scene. Another officer responded and
noticed Victim’s open wound and blood-smeared clothes. When his mother
approached the crowd congregating around him, Victim told her, “Mama,
Cowan shot me. Cowan shot me, mama.”

¶4 Victim survived transport to the hospital but died during
surgery.

¶5 In December 2018, a Grand Jury indicted Brown for one count
of second-degree murder, a class one dangerous felony. The State sought
testimony from three witnesses who picked Brown out of a photo lineup:
Castro-Rios, Antonio Quezada, and Kimberly Hoysradt. Despite their
pretrial identifications, these witnesses refused to identify Brown when
they testified. Quezada testified that he could not identify Brown in the
courtroom because of Brown’s face mask. Brown wore a mask to follow the
Arizona Supreme Court’s Covid-19 administrative order in effect at the
time of trial.

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 STATE v. BROWN
Decision of the Court

¶6 On the fifth day of trial, before the jury entered the courtroom,
the superior court addressed the witnesses’ refusal to identify Brown. The
court stated:

And with respect to the issue of whether either of those
witnesses were afraid of Mr. Brown, I think that’s an inference
that could be derived from the fact that I just personally do
not find it credible that either one—of course, one of the
witnesses said that he couldn’t identify Mr. Brown if he had a
mask on. I didn’t find that to be particularly credible, but I’m
not the jury. And the other witness said that she didn’t have
her glasses on, and that was never followed up on. So that is
certainly an inference, but you know, the record will reflect
what the record reflects.

The court informed the parties that it would not order Brown to remove his
mask.

¶7 Brown moved to prevent the State from arguing to the jury
that the witnesses refused to identify Brown out of fear. Outside the jury’s
presence, the superior court denied Brown’s motion and described the
witnesses’ testimony as “a little suspect.” During closing arguments, the
State told the jury that it could determine whether fear influenced the
witnesses’ “hesitation to identify the defendant in court.”

¶8 The jury found Brown guilty of second-degree murder with
four aggravating circumstances. The superior court sentenced Brown to 22
years’ imprisonment with 932 days of pre-incarceration credit. The court
ordered Brown to pay $64 in court fees, including a $9 assessment to the
Victims’ Rights and Compensation Fund.

¶9 Brown timely appealed, and we have jurisdiction. See Ariz.
Const. art. 6, § 9; A.R.S. §§ 13-4031, -4033(A)(1).

DISCUSSION

¶10 Brown argues the superior court violated the prohibition
against judicial comment on the evidence. By failing to object to the court’s
comments, Brown forfeited his right to appellate relief absent fundamental,
prejudicial error. See State v. Henderson, 210 Ariz. 561, 564–65, ¶ 8 (2005). To
prove fundamental error, Brown must establish: (1) the court erred; (2) the
error goes to the foundation of the case, deprived him of a right essential to
his defense, or is so egregious that it robbed him of a fair trial; and (3) he
suffered prejudice. See State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).

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 STATE v. BROWN
Decision of the Court

¶11 “Judges shall not charge juries with respect to matters of fact,
nor comment thereon, but shall declare the law.” Ariz. Const. art. 6, § 27. A
judge improperly comments on the evidence “by expressing an opinion as
to what the evidence proves in a way that interferes with the jury’s
independent evaluation of that evidence.” State v. Riley, 248 Ariz. 154, 179,
¶ 85 (2020) (cleaned up).

¶12 Brown points to the court’s comments that the jury could infer
Castro-Rios, Quezada, and Hoysradt refused to identify him in court
because they were afraid of him. But the court made these statements
outside the presence of the jury when ruling on Brown’s motion in limine.
See State v. Shumway, 137 Ariz. 585, 588 (1983) (“[A] comment on the
evidence . . . occurs when the judge tells the jury his opinion of what the
evidence does or does not show.”) (emphasis added).

¶13 Brown contends the court’s comments are nonetheless
constitutionally problematic because they reached the jury “through the
vehicle of the State’s closing argument.” The court noted a potential
inference, and the State argued the same inference in closing: the jurors
could conclude that fear or another emotion influenced the witnesses’
testimony. Brown provides no authority for his “vehicle” theory in which
the State’s otherwise legally proper closing argument transformed into the
court’s constitutionally impermissible comment. We find no error.

¶14 Brown also argues the superior court improperly imposed the
$9 assessment to the Victims’ Rights and Compensation Fund. The State
concedes the court erred when it imposed the assessment.

CONCLUSION

¶15 We vacate the Victims’ Rights assessment but otherwise
affirm Brown’s conviction and sentence.

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

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