Background
Kenneth Joseph Carter moved to Arizona around 2017–2018 and began working for a construction company owner referred to as Dennis. The two became friends, and Carter and his girlfriend Kelsey Newbeck were permitted to live on property where Dennis served as caretaker. After Carter and Newbeck’s relationship ended in mid-2024, Newbeck moved in with Dennis and the two became romantically involved. Carter relocated to his father’s home.
In the early hours of August 1, 2024, Newbeck spotted an unfamiliar truck approaching the property slowly on the security camera feed. Dennis took a pistol and went outside to investigate. Carter and his father stepped out of the truck; Carter was carrying an AR-15 and his father held what appeared to be a metal object. A confrontation ensued over a debt Dennis allegedly owed. Carter’s father threw a punch, Dennis fired a warning shot and told them to leave, and Carter shoved Dennis. As Dennis turned and walked back toward his house, Carter’s father urged Carter to shoot. Carter fired multiple shots, killing Dennis. Carter turned himself in later that day, admitting to the shooting.
A grand jury indicted Carter on one count of second-degree murder in violation of A.R.S. § 13-1104(A)(1). At a four-day jury trial in August 2025, Carter raised a self-defense theory, pointing to evidence that Dennis had methamphetamine in his system at the time of death and that methamphetamine can cause aggressive and erratic behavior. No witness testified that Dennis behaved erratically before the shooting. The jury convicted Carter, and the court sentenced him to a mitigated term of 14 years.
The Court’s Holding
The Arizona Court of Appeals, Division One, affirmed Carter’s conviction and sentence in full. Carter raised two prosecutorial misconduct claims on appeal, both reviewed for fundamental error because defense counsel had not objected at trial. The court found no misconduct — let alone fundamental error — in either instance.
On the first claim, the court held that the prosecutor’s mini-opening statement references to drug use by the victim and witnesses were a proper exercise of voir dire and were not improper. Because Carter’s own defense hinged on Dennis’s methamphetamine use as evidence of aggression, the State was entitled to probe whether prospective jurors harbored biases about drug use that would prevent fair evaluation of the evidence. The court also noted that any possible prejudice was negated by defense counsel’s own similar remarks characterizing the witnesses and the property in unflattering terms.
On the second claim, the court held that the prosecutor’s closing argument suggestion that jurors could “disregard” the self-defense instructions did not constitute misconduct. Read in context, the argument correctly reflected the trial court’s own instruction that jurors may set aside instructions that, after finding the facts, they determine to be inapplicable. Because the prosecutor’s statement accurately stated the law and was grounded in the evidence, it was a permissible jury argument rather than a misstatement of the law or an invasion of the jury’s role.
Key Takeaways
- A prosecutor may address drug use by victims and witnesses during voir dire and mini-opening statements when the defense intends to rely on that drug use as evidence — such inquiries legitimately probe juror bias rather than improperly inject prejudice.
- A defendant cannot establish prejudice from a prosecutor’s unflattering characterizations when defense counsel made equivalent characterizations at trial.
- Telling jurors in closing argument that they may “disregard” certain instructions because the evidence does not support them is permissible advocacy, not misconduct, where it mirrors the court’s own jury instructions on applying only those instructions that fit the found facts.
- Failure to object to prosecutorial statements at trial limits appellate review to fundamental error, a high bar that requires the error to go to the foundation of the case, strip an essential right, or render a fair trial impossible.
Why It Matters
This decision illustrates the breadth of permissible prosecutorial comment during both jury selection and closing argument in Arizona. Defense attorneys should take note that drug-use disclosures during voir dire will generally survive scrutiny when the defense itself plans to put that drug use at issue — and that failing to object contemporaneously substantially narrows the available appellate arguments. The decision also reinforces that a prosecutor who tells jurors to discard an inapplicable instruction is not usurping the jury’s role, so long as the argument tracks the court’s own charge.
The case is designated non-precedential under Arizona Rule of the Supreme Court 111(c) and may be cited only as authorized by that rule, limiting its direct authority in future Arizona proceedings.