State v. Brooks

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BENNY CHARLES BROOKS, III, Appellant.

No. 1 CA-CR 23-0298
FILED 12-24-2024

Appeal from the Superior Court in Maricopa County
No. CR2018-131721-001
The Honorable Mark Brain, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Rebecca Jones
Counsel for Appellee

Law Offices of Stephen L. Duncan, PLC, Scottsdale
By Stephen L. Duncan
Counsel for Appellant
 STATE v. BROOKS
Decision of the Court

MEMORANDUM DECISION

Acting Presiding Judge Kent E. Cattani delivered the decision of the Court,
in which Judge Paul J. McMurdie and Chief Judge David B. Gass joined.

C A T T A N I, Acting Presiding Judge:

¶1 Benny Charles Brooks III appeals his convictions of 16
dangerous offenses arising from a home invasion in which two individuals
were killed. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Michael, Paul, and Randall shared a house in Laveen.1
Michael sometimes sold drugs out of the house.

¶3 Late one night in June 2018, three masked and black-clad
armed men—Brooks, his uncle, and an unidentified third man—broke into
the house. The three zip-tied Michael, Randall, and three other people who
were there at the time, then ransacked the house. Gunfire erupted when
they broke into Paul’s room, leaving Brooks wounded and Michael and
Brooks’s uncle dead. Brooks and the third man fled the house, and Brooks
was arrested at a hospital hours later.

¶4 The State charged Brooks with two counts of first-degree
murder, one count of first-degree burglary, two counts of armed robbery,
two counts of aggravated robbery, five counts of aggravated assault, and
six counts of kidnapping.2 At trial, the State theorized that Brooks had
coordinated with another person named Jacob—who knew both Brooks
and Michael and had purchased cocaine from Michael just hours before the
home invasion—to commit the home invasion to steal drugs. Brooks, in
contrast, argued that Paul and Randall were involved in dealing drugs and
had staged the home invasion after a drug deal went wrong.

¶5 The jury acquitted Brooks of one count each of armed robbery
and aggravated robbery but found him guilty of the 16 other offenses as

1 We use pseudonyms to protect the victims’ privacy.
2 The State also charged Brooks with one count of unlawful use of
means of transportation, but the court granted the parties’ request to
dismiss that count during trial.

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charged. The superior court sentenced Brooks to ten concurrent 15- and 20-
year terms of imprisonment, followed by four more concurrent 15- and 20-
year terms to be served concurrently with sentences of natural life and life
in prison for the murder convictions.

¶6 Brooks timely appealed. We have jurisdiction under A.R.S.
§ 13-4033(A)(1).

DISCUSSION

I. Due Process.

¶7 Brooks argues the trial was infected by two due process
violations that warrant reversal: (1) alleged error in the way courtroom
security performed its role, and (2) alleged unfair prejudice when the
superior court informed the jury that Brooks had been held in custody for
over a year after his arrest at the hospital.

A. Courtroom Security.

¶8 Brooks argues the superior court allowed detention deputies
to create a prejudicial atmosphere in the courtroom, asserting that the way
the deputies were positioned suggested to jurors that Brooks was a violent
person who required close supervision to ensure safety in the courtroom.

¶9 The Fourteenth Amendment secures criminal defendants’
right to a fair trial, including a presumption of innocence. Estelle v. Williams, 425 U.S. 501, 503 (1976). To protect this right, courts guard against practices,
including security measures and even a defendant’s attire, that may
improperly affect jurors’ judgment and thereby undermine the fairness of
trial. Id. at 503–05. We review the superior court’s decision on courtroom
security measures for an abuse of discretion, State v. Cruz, 218 Ariz. 149,
168, ¶ 118 (2008), and will uphold such a decision if supported by the
record, State v. Davolt, 207 Ariz. 191, 211, ¶ 84 (2004). Where the record on
appeal is incomplete, we presume the missing portions support the court’s
actions. State v. Printz, 125 Ariz. 300, 304 (1980).

¶10 On several occasions during trial, Brooks expressed concerns
about what he characterized as a “coercive” security presence.3 On the first
day of trial, Brooks asserted that a detention officer was creating a coercive

3 The court addressed security and courtroom etiquette on
several other occasions during trial, but Brooks does not raise these
incidents on appeal.

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atmosphere by standing in such a way as to indicate Brooks was in custody.
The detention officer stepped away when requested, but Brooks took issue
with the positioning of the officer’s chair. The superior court noted that it
found nothing coercive about the officer’s actions and offered to tell the
jurors that “deputies are just around to take care of anything I need and
they are assigned to courtrooms as a matter of course.” Brooks did not
respond to the court’s offer.

¶11 On the third day of trial, Brooks again objected to courtroom
security as “coercive in a sense that it’s suggesting . . . a problem between
individuals here” that would make the jury believe this type of security is
required. The superior court again found nothing coercive about the
officers’ behavior, noting they had been acting professionally. Aside from
part of the transcript reflecting that there were four officers in the
courtroom that day, no further record was made on the issue.

¶12 Relying on Deck v. Missouri, 544 U.S. 622 (2005), and State v.
Eddington, 226 Ariz. 72 (App. 2010), Brooks asserts that the detention
officers’ presence created an atmosphere that suggested Brooks was a
violent person who needed to be watched closely, effectively undermining
his presumption of innocence. But as Brooks recognizes, Deck involved the
“inherently prejudicial” nature of forcing a defendant to wear visible
shackles. 544 U.S. at 626–29 (citation omitted). Similarly, Eddington’s
reasoning was based on case law regarding the risk of prejudice stemming
from forcing a defendant to appear in jail attire. 226 Ariz. at 78, ¶ 16 (citing
Estelle, 425 U.S. at 504–05). Neither shackles nor jail attire are at issue here,
and the mere fact of enhanced courtroom security does not establish that
Brooks was denied a fair trial. See Holbrook v. Flynn, 475 U.S. 560, 568–59
(1986). The superior court noted Brooks’s concerns but reasonably found
that the officers’ presence was not inherently prejudicial, and even offered
to inform the jurors of a neutral reason for the officers’ presence. Nothing
in the record calls into question this finding or otherwise suggests that the
presence of courtroom security was so extreme as to render the trial
“inherently lacking in due process.” Id. at 570–72; Estes v. Texas, 381 U.S.
532, 542–43 (1965). Accordingly, Brooks has not established that the
superior court abused its discretion in managing courtroom security.

B. Custodial Status.

¶13 Brooks also argues his right to a fair trial was violated when
the superior court informed the jury that he remained in custody for over a
year after his arrest at the hospital, which he asserts undermined his
presumption of innocence. We review evidentiary decisions for an abuse

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of discretion but consider constitutional questions de novo. State v. Smith, 215 Ariz. 221, 228, ¶ 20 (2007).

¶14 The issue of Brooks’s prior custodial status arose in the
context of DNA results from a handgun used in the home invasion. Police
recovered the gun in July 2019 (over a year after the offenses), during an
unrelated investigation. At Brooks’s trial, the State’s DNA expert testified
that he could neither include nor exclude Brooks as a contributor to the
DNA found on the handgun.

¶15 Brooks sought to call his own expert to testify that his DNA
was in fact not found on the handgun. The superior court advised Brooks
that such testimony would be affirmatively misleading given that Brooks
could not have touched the gun after the home invasion because he had
been held in custody the entire period from his arrest (just hours after the
offenses) to when the gun was recovered. The court thus advised Brooks
that his custodial status over that period would become relevant and
admissible if his expert were to testify that Brooks’s DNA was not on the
handgun.

¶16 Brooks nevertheless called the expert, who testified that
Brooks’s DNA was not on the handgun. On cross-examination, however,
Brooks’s expert accepted the prosecutor’s statement that Brooks did not
have contact with the handgun during the 13-month period before the gun
was recovered. Over Brooks’s objection, the superior court then told the
jury that it took judicial notice of the fact that Brooks could not have had
contact with the handgun for those 13 months because he “was taken into
custody at the hospital and remained in custody at the time the handgun
was located.” The court instructed the jurors to consider this fact only in
evaluating the evidence of DNA on the handgun and not for any other
purpose.

¶17 Brooks again relies on Deck, 544 U.S. 622, and Eddington, 226
Ariz. 72, to suggest that informing the jury of his prior incarceration eroded
his presumption of innocence. But again, those cases addressed practices
(visible shackles and jail attire) that provided pervasive reminders of a
defendant’s current custodial status. See supra ¶ 12. Introducing evidence
showing a defendant has been in custody at some point—such as evidence
of jail calls, interview videos, or other similar material—does not implicate
the same concerns because such evidence is not a “constant reminder of the
accused’s condition” during the trial that “furthers no essential state
policy.” Estelle, 425 U.S. at 504–05; see also State v. Murray, 184 Ariz. 9, 35
(1995) (“Certainly the jurors were aware that defendants were arrested and

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had spent some time in custody prior to trial. Such knowledge is not
prejudicial and does not deny defendants the presumption of innocence.”);
State v. Byrd, 109 Ariz. 387, 389 (1973) (noting that when the fact of a
defendant’s arrest is necessary to provide a complete story of the crime
itself, such testimony is relevant and not unduly prejudicial).

¶18 Moreover, even assuming it was unnecessary to inform the
jury that Brooks was still in custody when the handgun was recovered, the
jury had already heard Brooks was arrested at the hospital and charged
with serious crimes. It would not have been a surprise to the jurors that
Brooks had been taken into custody for at least some period, and in any
event, the court instructed the jurors that they could consider the fact of
Brooks’s incarceration only as to the DNA evidence and for no other
purpose. See State v. Herrera, 174 Ariz. 387, 395 (1993) (jury presumed to
follow limiting instruction). Accordingly, Brooks has not shown reversible
error on this basis.

II. Impeachment Evidence.

¶19 Brooks next argues the superior court erred by denying his
request to impeach Paul with a music video discovered after Paul testified.
We review the superior court’s ruling on the scope of cross-examination
and the admissibility of impeachment evidence for an abuse of discretion.
See State v. Ellison, 213 Ariz. 116, 132, ¶ 52 (2006).

¶20 Here, Paul testified that he did not know about the guns or
salable drugs in the house and that he had never entered the spare bedroom
where Michael stored drugs. Brooks thereafter discovered a music video
Paul had filmed earlier in 2018. Over the State’s objection, Brooks sought
leave to impeach Paul with the content of the music video, which Brooks
argued showed Paul in the spare bedroom and with guns and drugs.
Brooks further asserted that the video depicted Paul handling marijuana
and with “an AR-15 rifle that may have been used in this shooting
incident.”

¶21 After viewing the music video—which is not part of the
record on appeal—the superior court precluded it as irrelevant and overly
prejudicial. The court noted that no casings or bullets from an AR-15 were
found following the home invasion, and the court further explained that
the “music video, and a bunch of kids making a gangster-like video to look
cool is not pertinent to the case to the extent it had anything to do with it.
The prejudice greatly overwhelms all of it.” When Brooks asserted that
Paul should not be protected because he “admits to being involved in the

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shooting, and we want to place a gun in his hand,” the court clarified, “You
are not placing a gun in his hand that day. You’re placing a gun in his hand
in some screwy Internet video.”

¶22 The court did not abuse its discretion. A court may permit
impeachment by specific instances of conduct on cross-examination, but
only if those instances “are probative of the [witness’s] character for
truthfulness or untruthfulness,” Ariz. R. Evid. 608(b)(1), and their probative
value is not substantially outweighed by the danger of unfair prejudice or
confusion, Murray, 184 Ariz. at 30; see also Ariz. R. Evid. 403. Here, the
music video was not meaningfully probative of Paul’s credibility or on any
other fact in issue. See Ariz. R. Evid. 401 (defining relevant evidence as that
which “has any tendency to make a fact more or less probable” or “is of
consequence in determining the action”). There was no dispute that Paul
had been in the house previously—he lived there. And the fact that Paul
made a video holding a gun not used in the home invasion did not make it
more likely that he knew of a different gun or drugs in the house. The court
thus did not abuse its discretion by finding the video to be largely irrelevant
to Paul’s credibility and collateral to any other issues.

III. Prosecutorial Error.

¶23 Finally, Brooks raises several instances of what he
characterizes as prosecutorial misconduct4 that he argues deprived him of
a fair trial. Prosecutorial error warrants reversal only if (1) error occurred
and (2) there is a reasonable likelihood the error could have affected the
jury’s verdict and denied the defendant a fair trial. State v. Moody, 208 Ariz.
424, 459, ¶ 145 (2004). Such error must be “so pronounced and persistent
that it permeates the entire atmosphere of the trial,” rendering the
conviction a denial of due process. State v. Morris, 215 Ariz. 324, 335, ¶ 46
(2007) (quotation omitted).

A. Use of Terms “Robber” and “Robbery.”

¶24 Brooks asserts that the State’s use of the words “robber” and
“robbery” in its opening statement and while questioning witnesses
assumed his guilt and thus resulted in unfair prejudice. But simply using

4 Although Brooks uses the term “prosecutorial misconduct,” the
conduct alleged is more properly characterized as “prosecutorial error.”
See In re Martinez, 248 Ariz. 458, 470, ¶ 47 (2020) (differentiating “between
‘error,’ which may not necessarily imply a concurrent ethical rules
violation, and ‘misconduct,’ which may suggest an ethical violation”).

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the term “robbery” does not equate to a presumption of guilt. Instead, use
of the term during opening statements reflected the prosecutor’s theory of
the case, informing the jury of what the State expected the evidence to show.
See State v. King, 180 Ariz. 268, 278 (1994); cf. State v. Bible, 175 Ariz. 549, 602
(1993) (holding that even if a “comment during opening statement was
improper at that point, it was a reasonable inference from evidence later
introduced and would have been proper during closing argument,” so the
defendant was not deprived of a fair trial), abrogated in part on other grounds
as recognized in McKinney v. Ryan, 816 F.3d 798, 815 (9th Cir. 2015). Likewise,
the use of the terms when questioning witnesses largely mirrored the way
the victim-witnesses described the events at issue. And in any event, the
jury was properly instructed that the lawyers’ statements—including their
questions to witnesses—were not evidence but rather an aid to
understanding the evidence. See State v. Newell, 212 Ariz. 389, 403, ¶ 68
(2006) (jurors presumed to follow court’s instructions). Brooks has not
shown error in this regard.

B. Leading Questions.

¶25 Brooks next argues the State improperly and repeatedly used
leading questions on direct examination, couching its questions in a
testimonial fashion. Leading questions are those that suggest a desired
answer and are generally impermissible on direct examination unless
necessary to develop a witness’s testimony or where justice otherwise
requires. See Ariz. R. Evid. 611(c); State v. Payne, 233 Ariz. 484, 513, ¶ 119
(2013).

¶26 Here, Brooks consistently objected to the prosecutor’s use of
leading questions, and the superior court sustained some objections but
overruled others. In large part, the leading questions the court permitted
were foundational, reasonable inferences based on the evidence already
presented, or were otherwise necessary to develop a witness’s testimony.
Moreover, the superior court repeatedly reminded the jury that the
lawyers’ questions were not evidence and could only be considered as
context for the witnesses’ answers. See Newell, 212 Ariz. at 403, ¶ 68. Brooks
has not established prosecutorial error.

C. Closing Arguments.

1. Elements of Burglary.

¶27 Brooks argues that the State intentionally failed to include the
element of entering “unlawfully” when discussing burglary in its closing
argument, which he asserts misled the jury and relieved the State of the

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burden of proving each element of burglary beyond a reasonable doubt.
Burglary in the first degree as alleged in this case required proof that the
defendant, while in knowing possession of a firearm, entered or remained
unlawfully in a residential structure with the intent to commit a theft. See
A.R.S. §§ 13-1508(A), -1507(A). During closing argument, the prosecutor
described the elements as: “burglary in the first degree requires the
defendant enters the residence intending to commit a theft and at some
point had a gun. That’s it. Those are your elements.”

¶28 Although the statement omitted the requirement that the
defendant enter (or remain) unlawfully, the omission did not establish
reversible prosecutorial error. First, the superior court correctly instructed
the jury on all elements of the offense as well as the State’s burden to prove
each element beyond a reasonable doubt. Juries presumed to follow the
court’s instructions, see Newell, 212 Ariz. at 403, ¶ 68, and the court’s
instructions carry more weight than counsel’s arguments. State v. Vargas, 251 Ariz. 157, 178, ¶ 76 (App. 2021) (instructions “are viewed as definitive
and binding statements of the law,” whereas counsel’s arguments are
presented and viewed as “the statements of advocates” (quotation
omitted)). Moreover, after Brooks objected to the omission, the court
reminded the jury that “unlawfully” entering was an element of the offense.
And even though unlawfulness of entry was not meaningfully contested,
Brooks took the opportunity in closing argument to highlight the
prosecutor’s omission. Brooks thus has not established reversible error in
this regard.

2. Appeal to Emotion.

¶29 Finally, Brooks argues that the State improperly appealed to
the jury’s sympathy and emotions at two points during closing argument.
When the prosecutor argued, “Do you think that [the victims] are ever
going to fully heal from this incident?” Brooks objected, and the superior
court sustained the objection. The prosecutor then argued, without
objection, that “[Michael] was only 21 years old. He did not deserve to die.
. . . His life is over.” The latter (unobjected-to) statement argued permissible
inferences based on the evidence presented and fell within the wide latitude
prosecutors are afforded in closing argument. State v. Jones, 197 Ariz. 290,
305, ¶ 37 (2000). And even if the former statement was improper during
the guilt phase, the court sustained Brooks’s objection to this isolated
statement and separately instructed the jury that the lawyers’ arguments
were not evidence. See Newell, 212 Ariz. at 403, ¶ 68. Accordingly, Brooks
has not established prosecutorial error based on the prosecutor’s closing
argument, and he has not established error (individually or collectively)

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that was likely to have affected the jury’s verdict or otherwise denied him
a fair trial. See Moody, 208 Ariz. at 459, ¶ 145.

CONCLUSION

¶30 For the foregoing reasons, we affirm Brooks’s convictions and
sentences.

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

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