State v. Speers
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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Appellee, v. PHILLIP GREGORY SPEERS, Appellant. 1 CA-CR 07-0796 DIVISION ONE FILED: 06-01-2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR200000472 The Honorable Christopher T. Whitten, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Katia Mehu, Assistant Attorney General Attorneys for Appellee Phoenix Phillip Gregory Speers, In Propria Persona Tucson N O R R I S, Judge ¶1 Phillip Gregory Speers appeals from his convictions and sentences on two counts of child molestation involving two second grade students, each a class two felony and dangerous crime against sufficiency of children. 1 Speers the to evidence does support not the challenge the convictions, and unless otherwise discussed, the particulars of the offenses are not pertinent to the issues raised on appeal. ¶2 Speers was originally convicted in 2003 on four counts of child molestation and one count of sexual conduct with a minor, but because of this court evidentiary reversed error and those convictions remanded for a on appeal new trial. State v. Speers, 1 CA-CR 03-0812 (Ariz. App. Feb. 24, 2005) (mem. decision). 2 On retrial in 2007, a jury convicted Speers on two of the child molestation counts, but acquitted on the three other counts. The superior court sentenced Speers to consecutive 17-year prison terms with credit for 2,553 days of presentence incarceration. 1 Although the unsigned minute entry from the sentencing hearing, filed September 4, 2007, characterizes the first count as non-dangerous and does not address the dangerousness of the second count, the signed judgment and sentence entered by the court correctly characterizes both offenses as dangerous crime[s] against children pursuant to [A.R.S. § 13-604.01]. 2 Speers was also separately tried and convicted on two counts of sexual exploitation of a minor (the sexual exploitation case ). We vacated those convictions for evidentiary error and remanded for a new trial. See State v. Speers, 209 Ariz. 125, 98 P.3d 560 (App. 2004). The State ultimately stipulated to the dismissal without prejudice of that case. 2 DISCUSSION I. Speedy Trial ¶3 Speers argues the superior court abused its discretion in denying his motion to dismiss for violation of his speedy trial rights under Rule 8 of the Arizona Rules of Criminal Procedure and the United States and Arizona Constitutions. superior court denied his motion finding the The delays were occasioned on [Speers ] behalf or agreed to by him with time being waived. The superior court also found there was no prejudice because when it made its ruling Speers still needed additional time to prepare for trial. ¶4 We will uphold a superior court s Rule 8 speedy trial determination prejudice. 1267 absent abuse of discretion and resulting State v. Spreitz, 190 Ariz. 129, 136, 945 P.2d 1260, (1997). [T]he determination depends on the facts of each case. of Id. abuse of discretion We review the federal and state constitutional claims de novo, but review the factual findings related to these claims for abuse of discretion. State v. Smith, 215 Ariz. 221, 233, ¶ 57, 159 P.3d 531, 543 (2007). A. ¶5 Rule 8 Right to Speedy Trial When a judgment of conviction is reversed on appeal and a new trial ordered, Rule 8.2(c) of the Arizona Rules of Criminal Procedure states the new trial shall commence within 90 days of the service of the mandate of the Appellate Court. 3 Ariz. R. Crim. P. 8.2(c). This court issued its mandate in this matter on June 28, 2005, and it was served on the Yuma County Superior Court on June 30, 2005. Accordingly, in the absence of excused delay, Rule 8 required trial to begin no later than September 28, 2005. See Ariz. R. Crim. P. 8.4 (excluding certain periods of delay from computation of time limit). The second trial did not begin, however, until July 2, 2007. ¶6 The right to a speedy trial strict than the constitutional right. 136, 945 P.2d at 1267. under Rule 8 is more Spreitz, 190 Ariz. at The Rule 8 right is not fundamental, but rather a procedural right. Id. at 139, 945 P.2d at 1270 (quoting State v. Henry, 176 Ariz. 569, 578, 863 P.2d 861, 870 (1993)); see also State v. Killian, 118 Ariz. 408, 411, 577 P.2d 259, 262 (App. 1978) (Rule 8 does not grant the appellant any fundamental right which cannot be waived by his counsel ). Consequently, this right to a speedy trial may be waived by a defendant. ¶7 See Spreitz, 190 Ariz. at 136, 945 P.2d at 1267. The purpose of Rule 8 is to insure that a criminal defendant is not forgotten while the orderly administration of justice swirls untouched. around him on all sides but leaving him State v. Ferguson, 120 Ariz. 345, 347, 586 P.2d 190, 192 (1978). Although there was a two-year period between service of the mandate on the first appeal and the beginning of trial, neither Speers nor his right to speedy trial was ignored 4 or overlooked by the superior court and counsel. As the following summary shows, Speers decision to proceed pro per and the considerable time he needed to pursue multiple pretrial motions and prepare for trial caused the delay. ¶8 on After remand, the superior court held a status hearing July 15, 2005. constitutional At right this to hearing, represent responsibility for his defense. 3 Speers exercised himself and his assumed In discussing the trial date, the prosecutor cited the pertinent section of Rule 8 and advised the court and Speers trial was to commence within 90 days of the service of the mandate of the appellate court. set a tentative trial date of October 4, 2005. The court To this, Speers stated he had a number of motions he wanted to file before trial and essentially asked if the trial date could be postponed for this reason. motions, The they court would Speers resolved be informed in he the should his course normal file of business, and if that necessitates a continuance and if that s appropriate to do under the law, we ll continue [the trial]. The court also informed Speers if his motions required a continuance, the delay would be chargeable against him. ¶9 At prosecutor, subsequent and Speers status hearings, discussed several 3 the of the court, motions the he After it accepted Speers waiver of counsel, the court assigned Speers advisory counsel. 5 intended to file and it became clear the trial would not begin on October 4. 4 action to The court did not, however, take any formal change the trial date. Finally, during a status hearing before the Honorable John N. Nelson on September 29, 2005, the prosecutor placed the conflict between Speers speedy trial rights and his right to prepare a defense squarely before the superior court and Speers. The prosecutor explained the State was ready to proceed to trial on the date scheduled or at any time, rights but and did sought not want guidance to in interfere resolving with the Speers trial situation. In response, after first stating he intended to challenge Judge Nelson for cause, Speers explained he was certainly not opposed to continuing or vacating the trial date so he could have more time to file motions and prepare for trial. Judge Nelson vacated the October 4 trial date and informed Speers his challenge for cause necessitated a waiver of the Rule 8 time limits. Judge Nelson also confirmed Speers understood that if he filed additional motions that will also delay the setting of a trial. ¶10 Speers challenge to Judge Speers favor on November 28, 2005. Nelson was resolved in After several other judges recused themselves and one was noticed by the State, on January 4 During this period, the superior court judge first assigned to the case moved and Speers challenged for cause the second judge assigned to the case. 6 3, 2006, the case was permanently assigned to the Honorable Mark Wayne Reeves. prosecutor At advised a January the 18, superior 2006 court status the hearing, State could the be prepared to try the case in three weeks, but noted Speers had not pursued the appointment of an expert and had not yet filed the motions he had previously indicated he intended to pursue. In response to questions by the court, Speers explained he needed an expert witness on false memory and suggestibility as well as a computer expert. Speers also briefly described several motions he wished to file he asserted would dispose of the case. Speers explicitly agreed to waive time for these matters. ¶11 The superior court held status conferences throughout 2006, but did not set a trial date because of the pendency of various matters relating to pretrial discovery requests. Speers experts, motions, and In February 2006, Speers notified the court and the State he intended to file at least 30 motions, which he continuing briefly described. through November Beginning 2006, that Speers same filed at month least and 16 motions and requests in the superior court, including motions to modify conditions of release, for appointments of experts and paralegal, to compel interviews, for transcripts, for disqualification of the Yuma County Attorney s Office, and for reconsideration on these and other subjects. 7 At a November 15, 2006 status conference, Judge Reeves explained he was leaving the bench at the end of the year and would have to transfer the case for reassignment. or Speers, Judge Without objection from either the State Reeves advised the parties he would not schedule another status hearing in the case because if you all file motions and the like it s going to delay things. ¶12 On January 19, 2007, a status hearing was held before the Honorable Larry Kenworthy. In reviewing the status of the case and discussing the setting of a trial date, the superior court observed that in conjunction with the appointment of Dr. B. as an expert witness for Speers, Judge Reeves had ordered Dr. B. to prepare a report. When asked about the status of the report, Speers told the court he had not been able to contact Dr. B. since the court had appointed him and was not sure when Dr. B. s report would be ready. 5 Speers also told the court the State had scared off his computer expert, see infra ¶¶ 30-32, and he was not sure how helpful it would be to set a trial date because he still did not have a time frame as to when he would be ready for trial. During the hearing, Speers raised for the first time his Rule 8 right to a speedy trial, stating he believed the time limit for trying expired. The prosecutor reiterated the State was prepared to go 5 him under the rule had Speers informed the court his volunteers had been working with Dr. B. and he did not know the status of their dealings with Dr. B. 8 forward at any time, and expressed frustration with the delays which he asserted had been caused by Speers. In response to Speers comments about his right to a speedy trial, the superior court scheduled trial for May 7, 2007. ¶13 One week later, on January 26, 2007, Speers filed a notice of change of judge pursuant to Arizona Rule of Criminal Procedure 10.2. As a consequence, Judge Kenworthy vacated the May 7, 2007 trial date and, because all Yuma County Superior Court judges and/or commissioners had either been peremptorily removed or had recused themselves from the case, the Presiding Judge of the Superior Court of Yuma County transferred the case to the Presiding Judge of the Superior Court of Pima County for reassignment. In February 2007, the Presiding Judge of the Pima County Superior Court assigned the case to the Honorable Michael Cruickshank, and Judge Cruickshank was assigned a motion filed by the State objecting to Speers Rule 10.2 challenge to Judge Kenworthy. Because Judge Cruikshank questioned whether he had jurisdiction to rule on the State s motion, at his suggestion, the State filed a special action. but denied relief on March 22, This court granted review, 2007, holding the State had failed to file a timely response to Speers Rule 10.2 notice and had therefore lost its right to challenge the notice. ¶14 dismiss While the special action was pending, Speers moved to for prosecutorial misconduct, 9 prosecutorial vindictiveness, and violation of his speedy trial rights. He also moved to have a DNA analysis of certain evidence, and to disqualify the Yuma County Attorney s Office. 6 ¶15 Because of the expected length of trial, in April 2007 the case was ultimately reassigned to a Maricopa County Superior Court judge, the Honorable Christopher Whitten. At an April 25, 2007 status hearing, the superior court scheduled trial to start on July 2, 2007, set deadlines for pretrial discovery including disclosure of expert witness reports, ruled on several discovery requests submitted by Speers, and denied Speers motion to dismiss for violation of his speedy trial rights, noting Speers was still not prepared for trial. Not only was Speers not ready for trial when he filed his speedy trial motion and when it was ruled on, but at a subsequent status hearing on May 4, 2007, Speers requested experts reports. an extension of time for submittal of his The superior court granted the request, and set new disclosure deadlines. ¶16 The superior court summarily disposed of several of Speers pending motions and then held an evidentiary hearing on the remaining motions on June 4-5, 2007. 6 After considering the This was Speers second motion to disqualify the Yuma County Attorney s Office. See supra ¶ 11. The court had denied Speers first motion, finding none of his allegations amounted to State misconduct warranting disqualification. 10 evidence presented, the superior court denied the motions on June 24, 2007, and trial began on July 2, 2007. ¶17 Given the above pretrial proceedings which we have condensed for the sake of brevity, the superior court did not abuse its motion. discretion Rule 8.4(a) in denying allows for Speers the Rule 8 speedy exclusion occasioned by or on behalf of the defendant. of all trial time From the very first status hearing in 2005 and throughout 2006, Speers made it abundantly clear he intended to pursue multiple motions before proceeding to trial. He repeatedly informed the superior court he would need time to prepare the motions and have them decided and he agreed to waive time for that purpose. In contrast, the State informed the court on several occasions it was ready to try the case. But, to avoid infringing on Speers trial rights, the State asked for assurances Speers was willing to waive the requirements of Rule 8. The record reflects Speers was agreeable to this arrangement. ¶18 Although Speers did not expressly agree to waive his speedy trial rights on the record at each status hearing in 2005 and 2006, he implicitly confirmed his waiver during this time by failing to raise any Rule 8 objection or object to the superior court s failure to set a trial date after it vacated the October 4, 2005 trial date. See supra ¶ 9. [A] defendant may waive speedy trial rights by not objecting to the denial of [a] speedy 11 trial in a timely manner. at 1269. Spreitz, 190 Ariz. at 138, 945 P.2d Speers did not assert a speedy trial violation until January 2007. Even at that time, however, Speers still had not contacted Dr. B. about preparation of his report, a prerequisite to Dr. B. s testimony at trial. Given that we had reversed Speers convictions and remanded for a new trial because this type of expert had not been allowed to testify at Speers trial, the State and superior court were naturally and appropriately hesitant to require Speers to proceed to trial without him. fact, in order to accommodate Speers with respect to In this expert, the superior court ultimately extended the deadline for disclosure of his report to June 29, 2007, essentially the eve of trial, and even permitted Speers to disclose his computer expert s testimony after trial had begun. On this record, the superior pretrial court could reasonably find occasioned by or on behalf of Speers. the delay was See State v. Piatt, 132 Ariz. 145, 150, 644 P.2d 881, 886 (1981) (no violation of speedy trial rights where delay complained of was occasioned by actions of defendant). ¶19 Moreover, even if Speers could establish a Rule 8 speedy trial violation, he would only be entitled to reversal if he could show the delay harmed his defense or deprived him of a fair trial. The law is well-established in this state that a conviction will not be reversed unless the record shows an error 12 prejudicial to some substantial right of the defendant. State v. Vasko, 193 Ariz. 142, 147, ¶ 22, 971 P.2d 189, 194 (App. 1998). The test for prejudice when a speedy trial violation occurs is whether the defendant has shown that his defense has been harmed by the delay. Id. A defendant who fails to establish his defense was harmed or he was deprived of a fair trial has not established prejudice reversal for a Rule 8 violation. sufficient to warrant State v. Wassenaar, 215 Ariz. 565, 571, ¶ 16, 161 P.3d 608, 614 (App. 2007). ¶20 he Speers argues he demonstrated such prejudice because lost a nonexpert and a computer expert witness; he was prevented from reinterviewing the parents of the victims; and he was precluded from working as a research consultant and associating with others as a consequence of his incarceration. 7 He also asserts the delay subjected him to [p]ublic obloquy, depleted the resources of his family and friends, and caused anxiety to himself, his family, and his friends. ¶21 These claims fail to show the delay harmed Speers defense or deprived him of a fair trial. testified at his first trial did 7 not Although a witness who testify at his second Speers also argues the delay caused him to limit the scope of cross-examination of other witnesses. His failure to identify these witnesses or present argument in support of this claim in his briefing constitutes abandonment and waiver. State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989); Norgord v. State ex rel. Berning, 201 Ariz. 228, 233, ¶ 20, 33 P.2d 1166, 1171 (App. 2001). 13 trial, her failure to do so was unrelated to the delay. infra ¶ 57. See Speers claim the witness would have been available to testify in person if the trial had occurred earlier is, thus, pure speculation. ¶22 Similarly, Speers did not lose his computer expert because of argument any he delay. lost intimidation, the Even this alleged if we were to accept Speers witness because of witness misconduct occurred before Speers raised his speedy trial claim. And, as with the other witness, his claim he would not have lost this witness if trial had occurred earlier amounts to pure speculation. ¶23 Speers inability to reinterview the victims parents was also not attributable to pretrial delay. The superior court rejected his reinterview request in August 2006, long before he asserted any speedy trial violation. ¶24 Finally, the other See supra ¶ 12. disruptions and the toll the litigation may have taken on Speers or his family and friends is not a harm to his defense or his right to a fair trial. As has our supreme court, we recognize the importance of Speers and his family s anxiety in awaiting trial and appreciate the loss of liberty sustained by trial delay. See State v. Soto, 117 Ariz. (1977). 345, 348, 572 P.2d 1183, 1186 These factors alone, however, are not sufficient to require reversal after conviction for a Rule 8 violation when, as here, Speers has not 14 suffered any prejudice to his trial rights. See Wassenaar, 215 Ariz. at 571, ¶ 16, 161 P.3d at 614; Vasko, 193 Ariz. at 147, ¶ 22, 971 P.2d at 194. B. ¶25 Constitutional Right to Speedy Trial Both the United States and guarantee the right to a speedy trial. Ariz. Const. art. 2, § 24. Arizona U.S. Const. amend VI; Neither, however, requires trial to be held within a specific period of time. 139, 945 P.2d at 1270. Constitutions Spreitz, 190 Ariz. at Whether delay in the start of trial is sufficient to reverse a conviction is determined using the four factors articulated in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972): (1) the length of the delay, (2) the reason for the delay, (3) whether there has been a demand for a speedy trial, and (4) whether the defendant suffered any prejudice. Spreitz, 190 Ariz. at 139, 945 P.2d at 1270. In weighing these factors, the most important is prejudice to the defendant, while the least important is length of the delay. Id. at 139-40, 945 P.2d at 1270-71. None of the four, however, is either a sufficient or necessary condition to a finding of violation of the constitutional right to Barker, 407 U.S. at 533, 92 S. Ct. at 2193. a speedy trial. Rather, the factors are to be applied in a balancing test, in which the conduct of both the prosecution and the defendant are weighed. 15 Id. at 530, 92 S. Ct. at 2191-92. Considering these four factors, Speers constitutional speedy trial rights were not violated. ¶26 First, we agree the length of delay in this case -- two years from mandate to trial -- is of concern and certainly sufficient to trigger inquiry into the other Barker factors. See Doggett v. United States, 505 U.S. 647, 652 n.1, 112 S. Ct. 2686, 2691 n.1, 120 L. Ed. 2d 520 (1992) (delay approaching one year unreasonable enough to trigger Barker inquiry). second, as because of discussed Speers above, pursuit trial of was delayed numerous failure to promptly prepare for trial. pretrial But, principally motions and Like the situation in Barker, the record here strongly suggests that while he hoped to take advantage of the delay . . . and thereby obtain dismissal of the charges, [defendant] definitely did not want to be tried. ¶27 407 U.S. at 535, 92 S. Ct. at 2194. Third, while Speers did raise the issue of his right to a speedy trial before trial, he did not do so until January 2007, more than 18 months after the mandate, and even then he advised the superior court he was still not ready to set a trial date. is When a defendant s assertion of his speedy trial rights untimely, it bears little weight in the Barker analysis. Spreitz, 190 Ariz. at 140, 945 P.2d at 1271. ¶28 Fourth, Speers trial rights were not prejudiced by the delay. Unlike a speedy trial claim under Rule 8, prejudice 16 to a defendant in the context of a constitutional speedy trial claim is not confined to possible prejudice to his defense. Moore v. Arizona, 414 U.S. 25, 26-27, 94 S. Ct. 188, 190, 38 L. Ed. 2d 183 (1973). Inordinate delay, wholly aside from possible prejudice to a defense on the merits, may seriously interfere with the defendant s liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends. Id. at 27, 94 S. Ct. at 190 (quoting Barker, 407 U.S. at 537, 92 S. Ct. at 2195 (White, J., concurring) (internal quotation omitted)). Speers based his claim of prejudice on these factors, tracking the words of this quotation to and even including the phrase public obloquy. These factors, however, are inevitably present in every case to some extent, for every defendant will either be incarcerated pending trial or on bail subject to substantial restrictions on his liberty. Id. (quoting Barker, 407 U.S. at 537, 92 S. Ct. at 2195) (White, J., concurring). In some cases, these factors can shift the balance in deciding whether there has been a violation of constitutional speedy trial rights under the Barker analysis. S. Ct. at 190. all weigh Id. at 27-28, 94 In this case, however, because the other factors against finding a constitutional violation, the factors identified by Speers fail to show a violation of his 17 constitutional right to a speedy trial. at 140, 945 P.2d at 1271 (no See Spreitz, 190 Ariz. constitutional violation notwithstanding five years in pretrial custody). II. Witness Intimidation ¶29 Speers next argues the superior court should have granted his motion to dismiss the case for witness intimidation by the prosecutors and certain detectives working on the case. We review a superior court s ruling intimidation for abuse of discretion. on a claim of witness State v. Jones, 197 Ariz. 290, 301, ¶ 20, 4 P.3d 345, 356 (2000). ¶30 At Speers request, in March 2006, the superior court appointed Jason C. as Speers computer expert. Jason C. was with Speers on November 9, 2006, when Speers interviewed the police detectives who had examined his computers. Before the interview, Jason C. had been allowed to inspect, but not copy, an image copy of the hard drive from one of Speers computers. During the interviews, Detective H. observed an EnCase dongle in Jason C. s laptop computer; because Detective H. believed the only reason contraband someone image would files, use which he a dongle would be to view believed Jason C. was not authorized to have, he asked Jason C. why he was using the devise. 8 Jason C. explained he had been able to remove the 8 certain A dongle is a security key device necessary to run software programs. EnCase is a brand of forensic 18 contraband images and was simply using the EnCase software to review the remaining data. When Detective H. and the prosecutor were not initially satisfied with Jason C. s explanation, the discussion devolved into name calling, with Jason C. calling the detective an idiot on more than one occasion and the prosecutor responding, [i]f he s an idiot, then you re a jerk. After tempers cooled and the prosecutor stated he accepted Jason C. s representation he did not have contraband images on his computer, Speers finished Detective H. s interview. ¶31 Before Speers could begin the next interview with Detective S., that detective demanded assurances from Jason C. he did not have any contraband images. Accordingly, the prosecutor asked Jason C. whether he had retained any of the contraband images. Jason C. again explained how he was using the EnCase software, allowed Detective S. to view his computer, and then demonstrated he did not have any contraband images. Satisfied, Detective S. proceeded with the interview. ¶32 At an evidentiary hearing on Speers motion, Speers testified Jason C. told him he had believed the detectives would have arrested him if he had refused to prove he did not have any contraband images on his computer. Speers further testified Jason C. left town the next day without keeping a scheduled software used by law enforcement and others to analyze computer data without disrupting or changing the media. 19 appointment and then failed to respond to attempts by Speers and his defense team to contact him. As a result, Speers was not able to use Jason C. as his computer expert, and had to use a different expert at trial, whom he asserted was not as well qualified as Jason C. ¶33 Governmental interference with a defendant s ability to present witnesses is a violation of due process. Webb v. Texas, 409 U.S. 95, 98, 93 S. Ct. 351, 353, 34 L. Ed. 2d 330 (1972); see also Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297 (1973) ( Few rights are more fundamental than that of an accused to present witnesses in his own defense. ). intimidation, whether to [t]he dispositive government the decision In analyzing a due process claim of witness actor s testify was question in interference substantial. each with case a United is witness s States v. Serrano, 406 F.3d 1208, 1216 (10th Cir. 2005) (quoting United States v. Crawford, 707 F.2d 447, 449 (10th Cir. 1983)). Interference is substantial when the government actor actively discourages a witness from testifying through prosecution, intimidation, or coercive badgering. threats of Serrano, 406 F.3d at 1216. ¶34 The superior court found there had not been any misconduct by the prosecutor or police detectives directed at intimidating the expert from testifying 20 on Speers behalf. There is nothing in the record indicating the detectives raised the issue of possible contraband on Jason C. s laptop for any reason other possibly than being they believed committed in a their violation of law was Although presence. the the detectives were mistaken in their belief, and as the superior court commented impolite, at in its best, ruling, the court their manner could was abrupt reasonably and conclude, considering the situation in its entirety, their actions were not calculated to discourage Jason C. from being a defense witness. ¶35 Speers argues the superior court made too much of the finding that the prosecutors and detectives had not tried or intended to intimidate [Jason C.], citing In re Martin, 744 P.2d 374 (Cal. 1987). In Martin, the California Supreme Court held a defendant must demonstrate three elements to establish a claim of witness intimidation by the State: (1) misconduct by a state actor; (2) causality between the misconduct and his ability to present the witness; and (3) materiality, that is the witness s testimony would have been material and favorable. 774 P.2d the at 393. Addressing the element of misconduct, California Supreme Court stated a defendant is not required to show that the governmental agent involved acted in bad faith or with improper motives. Rather, he need show only that the agent engaged in activity that was wholly unnecessary to the proper 21 performance of his duties and of such a character as to transform . . . a willing witness to one who would refuse to testify. ¶36 Id. (internal citations and quotations omitted). Even under the California test, for reasons already discussed, the superior court could reasonably conclude the detectives conduct was not wholly unnecessary to the proper performance of their duties as law enforcement officers. Additionally, Speers failed to demonstrate what the California Supreme Court described as causality. At the hearing, Speers testified Jason C., who was from New Zealand, was nervous about the possibility of being arrested, but also stated he was nervous for other reasons unrelated to the incident at the interviews -- his hotel room had been burglarized and his electronic gear stolen. ¶37 On this record, therefore, we cannot say the superior court abused its discretion in denying Speers motion to dismiss for witness intimidation. III. Double Jeopardy ¶38 asserting Before his further second trial, prosecution Speers violated moved his to dismiss, double jeopardy rights because the prosecutor had engaged in misconduct during his first trial. The superior court denied the motion without requiring the State to respond. 22 Whether retrial is barred by double jeopardy is a question of law we review de novo. State v. Moody, 208 Ariz. 424, 437, ¶ 18, 94 P.2d 1119, 1132 (2004). ¶39 As an initial matter, we reject Speers argument the superior court acted improperly in not requiring the State to file a response or allowing a reply before ruling on the motion. The Arizona Rules of Criminal Procedure do not prohibit summary denial of a motion without requiring a response. R. Crim. P. 35.1(a) (party may file response). the Ariz. If a response is filed, the moving party is entitled to file a reply. Id. If no response is filed, however, there is no need for or right to a reply. See id. (reply shall be directed only to matters raised in a response ). Thus, Speers was not deprived of any right by the superior court when it ruled on his motion without a response from the State. ¶40 The double jeopardy clauses of the Fifth Amendment and Article 2, Section 10, of the Arizona Constitution protect a criminal offense. 774, 780 defendant from general prosecutions for the same State v. Minnitt, 203 Ariz. 431, 437, ¶ 27, 55 P.3d (2002). The however, is not absolute. a multiple rule, retrial guarantee against double jeopardy, Id. at 437, ¶ 28, 55 P.3d at 780. is not barred by double As jeopardy principles when a defendant obtains reversal of a conviction on appeal for reasons other than insufficient evidence. Burks v. United States, 437 U.S. 1, 12, 98 S. Ct. 2141, 2148, 57 L. Ed. 23 2d 1 (1978). Retrial is also usually permitted when a defendant successfully moves for or consents to a mistrial. Minnitt, 203 Ariz. at 437, ¶ 28, 55 P.3d at 780. ¶41 One circumstance in which double jeopardy will bar retrial is when the prosecutor engages in improper conduct that is not merely the result of legal error or negligence, but constitutes intentional conduct that the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal [] and the conduct causes prejudice to the defendant which cannot be cured by means short of a mistrial. Id. at 438, ¶ 29, 55 P.3d at 781 (quoting Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984)). This bar to retrial exists even when the superior court fails to grant a mistrial if the conviction is reversed on appeal as a result of egregious and intentional [that] prevented acquittal. prosecutorial misconduct State v. Jorgenson, 198 Ariz. 390, 393, ¶ 13, 10 P.3d 1177, 1180 (2000). ¶42 When, as in this case, there has been no finding of prosecutorial misconduct through the granting of a motion for mistrial or by reversal on appeal, a defendant may only assert a double jeopardy bar to retrial based on prosecutorial misconduct at the prior trial if he moved for mistrial or if the misconduct was concealed by the prosecutor. 24 Moody, 208 Ariz. at 438, ¶ 21, 94 P.3d at 1133. In Moody, our supreme court further required, as an additional prerequisite to appellate review of the denial of such a double jeopardy claim, that the defendant seek relief by special action prior to trial: This court has never reviewed a double jeopardy claim based on prosecutorial misconduct if the defendant had not previously moved for mistrial or sought relief by special action from the trial court s denial of his motion to dismiss on those grounds. [Defendant] provides no compelling reasons to diverge from this practice. Id. at 438, ¶ 23, 94 P.3d at 1133. Because Speers neither moved for a mistrial for prosecutorial misconduct nor sought special action relief from the court s denial of his motion to dismiss on double jeopardy grounds, this issue is not properly before us. ¶43 Moreover, even if the issue was properly before us, we would be compelled to affirm the superior court s ruling because Speers failed to include the complete transcript of the first trial in the record on appeal and without it we have no way of determining whether the alleged prosecutorial misconduct was so pronounced and persistent atmosphere of the trial. that it permeates the entire State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) (quoting State v. Atwood, 171 Ariz. 576, 611, 832 P.2d 593, 628 (1992)). It is the defendant s duty, as the party seeking relief, to prepare the 25 record in such a manner as to allow the appellate court to pass upon the questions raised on appeal. State v. Mendoza, 181 Ariz. 472, 474, 891 P.2d 939, 941 (App. 1995). Accordingly, [w]here matters are not included in the record on appeal, the missing portions of the record will be presumed to support the action of the trial court. State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982); see also State v. Rivera, 168 Ariz. 102, 103, 811 P.2d 354, 355 (App. 1990) ( An appellate court will not speculate about the contents of anything not in the appellate record. ). IV. Motion to Suppress ¶44 During their investigation of the sexual misconduct allegations against Speers in 2000, police seized two computers, one from Speers apartment and the other from his parents home, and examined them pursuant to search warrants. The forensic examination of the computers revealed a number of graphic image files depicting minors under the age of 15 engaged in exploitive exhibition or other sexual conduct located in the temporary internet files section on the hard drives of the computers. The files found on the computer from Speers apartment formed the basis for the exploitation case. 563. charges filed against him in the sexual Speers, 209 Ariz. at 128, ¶¶ 4-7, 98 P.3d at The results of the examination were also introduced at Speers first trial in this 26 case as evidence of sexual propensity. See Ariz. R. Evid. 404(c). Speers does not dispute the lawfulness of the seizure and examination of the computers before his first trial. 9 ¶45 Beginning in late 2004 or early 2005, the reexamined the computers without obtaining a warrant. police Speers argues the reexamination without a warrant was an unreasonable search and seizure in violation of his rights under the United States and Arizona Constitutions and the superior court should have suppressed reexamination. § 8. novo. ¶46 the evidence obtained by police from this See U.S. Const. amend. IV; Ariz. Const. art. 2, We review constitutional issues and purely legal issues de Moody, 208 Ariz. at 445, ¶ 62, 94 P.3d at 1140. The Fourth Amendment and its Arizona counterpart protect against unreasonable searches and seizures. State v. Allen, 216 Ariz. 320, 323, ¶ 9, 166 P.3d 111, 114 (App. 2007). A search expectation under of the privacy Fourth that reasonable is infringed. Amendment society is occurs prepared when to an consider United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85 (1984); see also State v. Olm, 223 Ariz. 429, ___, ¶ 5, 224 P.3d 245, 247 (App. 2010). When items are lawfully seized and then examined 9 We affirmed the superior court s denial of Speers motion to suppress evidence obtained from the search of the computers in Speers appeal from his first trial. Speers, 1 CACR 03-0812, at *12-*16. 27 by the police, a subsequent examination by a law enforcement officer does not result in a constitutional violation because of the reduced expectation of privacy in the items. Hell s Angel Motorcycle Corp. v. McKinley, 360 F.3d 930, 933-34 (9th Cir. 2004). Thus, once an item in an individual s possession has been lawfully seized and searched, subsequent searches of that item, so long as it remains in the legitimate uninterrupted possession of the police, may be conducted without a warrant. United States v. Burnette, 698 F.2d 1038, 1049 (9th Cir. 1983). As the Burnette court explained: We believe our decision here is fully consistent with our prior decisions and with the policies underlying the Fourth Amendment s warrant requirement. Requiring police to procure a warrant for subsequent searches of an item already lawfully searched would in no way provide additional protection for an individual s legitimate privacy interests. The contents of an item previously searched are simply no longer private. Id. (footnotes omitted). ¶47 As part of his argument, Speers asserts computers should be treated differently from other evidence for Fourth Amendment purposes because they are able to hold a library s worth of personal information, citing United States v. Walser, 275 F.3d 981 (10th Cir. 2001). There is a split of authority as to whether and how to apply certain Fourth Amendment doctrines, such as the plain-view doctrine, to computer searches. 28 Compare, e.g., Frasier v. State, 794 N.E.2d 449, 465-66 (Ind. Ct. App. 2003) (computers analogous to other document containers), with United States v. Carey, 172 F.3d 1268, 1275 (10th Cir. 1999) (computers deserve special treatment because electronic storage is likely to contain a greater quantity information ) (internal quotation omitted). and variety of The issue addressed in these decisions, however, concerns the scope of a permissible search of a computer. ¶48 In contrast, Speers is not asserting the State was attempting to obtain evidence from the computers outside of the category of evidence described in the warrants authorizing the first examination of the computers. Instead, he is asserting the State should have obtained a new warrant before reexamining the computers. Because the second examination, regardless of when it occurred, did not infringe on any reasonable expectation of privacy Speers had in the computers, the State did not need to obtain a new warrant before the reexamination. Accordingly, the superior court did not improperly deny Speers motion to suppress. V. Refusal to Compel Interviews A. ¶49 Senate Bill 1126 Speers next argues the superior court should not have denied his motion to compel interviews of the victims parents because it based its denial on an amendment to the Victims Bill 29 of Rights not in effect at the time of its ruling. See 2006 Ariz. Sess. Laws 146-47 (Senate Bill 1126, allowing the parent of a minor victim to refuse a defense interview); Ariz. Rev. Stat. ( A.R.S. ) § 13-4433(H) (Supp. 2006) (effective Sept. 21, 2006). 10 effective Although the court should not have relied on a not yet amendment, Speers motion. it nevertheless did not err in denying See Castro v. Ballesteros-Suarez, 222 Ariz. 48, 56, ¶ 36, 213 P.3d 197, 205 (App. 2009) (appellate court can affirm the verdict if there is a basis to do so even if the court gave a wrong or insufficient reason ). ¶50 In addition to arguing the court could deny Speers motion because Senate Bill 1126 could be applied retroactively, the State also pointed out Speers had interviewed the parents of the minor victims in the case in 2001 and had cross-examined some of the circumstances, parents. parents Speers during was the not first entitled trial. to Under reinterview these the See State v. Jessen, 134 Ariz. 458, 461-62, 657 P.2d 871, 874-75 (1982) (superior court did not abuse its discretion 10 In its ruling, the court denied Speers motion based on Senate Bill 1126 in conjunction with the ruling in Warner. The court s reference to Warner was to State v. Warner, 168 Ariz. 261, 812 P.2d 1079 (App. 1990). In that case, this court held the right to interview a victim was procedural under Arizona Rule of Criminal Procedure 15, and [a]lthough the general rule is that legislation will have prospective application only, the rule is otherwise where the legislation is merely procedural in nature and does not affect substantive rights. Id. at 264, 812 P.2d at 1082. 30 in refusing to allow deposition of witnesses after first trial when defendant had their prior statements and transcripts of testimony); State v. Superior Court, 122 Ariz. 594, 596, 596 P.2d 732, 734 (1979) (absent exceptional circumstances, defendant is entitled to only one discovery opportunity). B. Constitutional Grounds ¶51 his Speers also argues the court should not have denied motion to compel the interviews because he had a constitutional due process right to interview the parents before trial. To the extent a defendant sets forth a constitutional claim in which he asserts that the information is necessary to his defense, however, we will conduct a de novo review. State v. Connor, 215 Ariz. 553, 557, 161 P.3d 596, 600 (App. 2007). ¶52 Under the facts of this case, Speers did not have a constitutional right to compel the pretrial interviews, and his reliance on State ex rel. Romley v. Superior Court (Roper), 172 Ariz. 232, 836 P.2d 445 (1992), is misplaced. In Roper, this court recognized there might be circumstances when a defendant s right to a fundamentally fair trial might supersede a victim s right to be free of discovery under the state constitution. Victims Bill of Rights, Ariz. Const. art. 2, § 2.1; see also A.R.S. §§ 13-4401 to -4440 (2010). There, the defendant was charged with aggravated assault for stabbing her husband. defendant presented evidence 31 her husband had The multiple personalities, some of which were violent, had received psychiatric treatment for this disorder for several years, and had been arrested occasions. Id. for at assaulting 234, 237, the 836 defendant P.2d at on 447, several 450. We authorized the superior court to make an in camera inspection of the victim s defendant if essential to medical the records records establishing and to order contained she had disclosure exculpatory acted in to the information self-defense or necessary to impeaching the victim as relevant to that defense. ¶53 By showing the contrast, in interviews were cross-examination of the this case, essential victims or Speers to made his their no defense parents. factual or As his he clarified during oral argument on his motion to compel, Speers asserted he needed the interviews for the primary purpose of gaining some insight into the -- what has been occurring in the alleged victims lives since the initial accusation and the trials and to have the perspective of [his memory expert] on those issues. 11 Speers defense to the charges, however, was that the victims accusations were based on false or distorted memories implanted through suggestive police questioning, conversations with their parents, and rumor mongering. 11 Before He also argued he should be allowed to interview the parents to obtain information about any conduct he had not heard of before. In our view, before the second trial Speers had been afforded ample opportunity to question the parents about the events alleged by the victims. 32 the second trial, however, Speers had ample develop evidence supporting this defense. opportunity to As discussed above, not only had he interviewed the parents before the first trial but he had cross-examined them during that trial. VI. Evidentiary Rulings ¶54 Speers also challenges several rulings by the superior court regarding the admission of evidence. We review rulings on admissibility of evidence for abuse of discretion. State v. Robinson, 165 Ariz. 51, 56, 796 P.2d 853, 858 (1990). A. ¶55 Admission of Prior Testimony Speers contends the superior court should not have allowed the State to introduce prior testimony of a witness who did not appear at trial. The witness was a teacher at the school where Speers taught and was a witness at his first trial. After hearing testimony regarding the prosecution s efforts to locate the witness, the superior court found the witness was unavailable and allowed the State to read the witness s prior testimony to the jury. Speers maintains the record does not support the superior court s finding of unavailability. ¶56 A criminal defendant has the right to be confronted with the witnesses against him. U.S. Const. amend. VI. To introduce testimonial hearsay consistent with this right, the State must establish: (1) the witness who provided the testimony is unavailable, and (2) the 33 defendant previously had an opportunity to cross-examine the witness. 12 at 68, 124 S. Ct. at 1374. Crawford, 541 U.S. A witness is not unavailable for purposes of the . . . exception to the confrontation requirement unless the prosecutorial authorities have effort to obtain his presence at trial. made a good faith State v. Montano, 204 Ariz. 413, 420, ¶ 25, 65 P.3d 61, 68 (2003) (internal quotation omitted). The length to which the State must go to produce a witness is a question of reasonableness. P.3d at 68. Id. at 420, ¶ 26, 65 It is within the discretion of the superior court to determine whether the State made sufficient efforts. State v. Edwards, 136 Ariz. 177, 181, 665 P.2d 59, 63 (1983). ¶57 Here, the prosecutor attempted to contact the witness before trial to let her know the trial was going to happen, and a detective attempted to contact the witness several times over a three-week period. The detective repeatedly went to the witness s home, spoke to neighbors, and went to the business of the witness s spouse in attempting to locate the witness. The detective learned from the spouse the witness had suffered a nervous breakdown testifying. The and had spouse decided refused 12 to to leave town disclose the to avoid witness s The witness s testimony from the first trial is testimonial hearsay as described by the United States Supreme Court: whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial . . . . Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177 (2004). 34 location to the police and invoked the marital communications privilege to avoid revealing questioned in court. 13 where the witness was when Under these circumstances, the court did not abuse its discretion in finding the witness was unavailable. B. Admission of Letters ¶58 Speers also argues the superior court should not have admitted into evidence portions of letters he wrote to girlfriend while he was in jail before his first trial. superior court ruled the evidence was admissible to a The rebut character evidence presented by Speers. ¶59 Speers argument in his opening brief consists of one four-sentence violated paragraph [his] due stating process admission rights under of the the letters Fifth and Fourteenth Amendments of the United States Constitution; Art. 2, § 24 of Arizona s Constitution; and Rules 402, 403 and 404(c) of Ariz.R.Evid. 865, 874 See State v. Aguilar, 209 Ariz. 40, 49, 97 P.3d (App. 2004), and 13 asserting, without factual Speers argues the spouse improperly invoked the marital communications privilege in refusing to reveal where the witness was. We disagree. The privilege can be waived if a spouse testifies about otherwise privileged communications or denies having relevant communications with his or her spouse. State v. Harrod, 218 Ariz. 268, 275, ¶ 15, 183 P.3d 519, 526 (2008). Here, the spouse properly invoked the privilege, and did not waive it, although he confirmed the witness had told him where she (and her daughter) were (and had visited them at that location) and expressed his own opinion the witness was not emotionally capable of testifying at trial. Finally, the spouse did not invoke the privilege with respect to the couple s child, as Speers asserts. 35 development, [t]he court clearly erred as to every factual finding used to justify the ruling. ¶60 Arizona Rule of Criminal Procedure 31.13 states, in pertinent part: The appellant s brief shall include . . . the contentions presented, of the and the appellant reasons with respect therefore, with to the citations authorities, statutes and parts of the record relied on. issues to the Ariz. R. Crim. P. 31.13(c)(1)(vi); see also Moody, 208 Ariz. at 452 n.9, ¶ 101, 94 P.3d at 1147 n.9 ( In Arizona, opening briefs must present significant arguments, supported by authority, setting forth an appellant s position on the issues raised. ) (quoting Carver, 160 Ariz. at 175, 771 P.2d at 1390). Speers failed address it. to brief this issue properly, we Because decline to See State v. Sanchez, 200 Ariz. 163, 166, ¶ 8, 24 P.3d 610, 613 (App. 2001) (issue waived because defendant failed to develop argument in his brief). 14 C. ¶61 Admission of Speers Prior Testimony Speers contends the superior court violated Arizona Rule of Evidence 106 by not admitting certain portions of his prior testimony responsive to excerpts offered by the State. Rule 106 provides: When a writing or recorded statement or part 14 Speers addressed this argument in more detail in his reply brief. We may disregard substantive issues raised for the first time in the reply brief. State v. Cannon, 148 Ariz. 72, 79, 713 P.2d 273, 280 (1985). 36 thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded considered This statement contemporaneously rule is completeness. a with partial ought it. in fairness Ariz. codification R. of to Evid. the rule be 106. of State v. Prasertphong, 210 Ariz. 496, 499, ¶ 14, 114 P.3d 828, 831 (2005). require which admission of an The rule of completeness does not entire statement; instead, only the portion of a statement necessary to qualify, explain or place into context the portion already introduced need be admitted. Id. at 499, ¶ 15, 114 P.3d at 831 (quoting United States v. Branch, 91 F.3d 699, 728 (5th Cir. 1996)). Thus, Rule 106 does not for create statements made. a rule simply of blanket because an admission inculpatory all exculpatory statement was also State v. Cruz, 218 Ariz. 149, 162, ¶ 58, 181 P.3d 196, 209 (2008). ¶62 The excerpts of Speers prior testimony introduced by the State were limited to admissions he had (1) looked at child pornography on the internet, (2) encrypted files on his computer, and (3) deleted certain images from his computer. The superior court admitted the portions of Speers prior testimony requested by Speers responsive to these three subjects, but disallowed his designations that were unrelated. Because the excluded place portions did not qualify, 37 explain or into context the prior testimony introduced by the State, the superior court did not abuse its discretion in refusing to admit them into evidence. D. ¶63 Admission of Web Pages Speers argues the superior court should not have admitted evidence his computer had been used to access sexually explicit images on a web site because the admission of this evidence essentially required him to defend against the very acts for which he had won acquittal in the sexual exploitation case. We disagree; the acquittals in the sexual exploitation case did not involve the images introduced into evidence in this case. ¶64 Speers was charged in the sexual exploitation case with 18 counts of sexual exploitation of a minor based on images from this web site found on the hard drive of his computer. Speers, 209 Ariz. at 128, ¶ 7, 98 P.3d at 563. Sixteen of the images were from thumbnail pictures that would have appeared on the computer screen in a grid-like formation from a web page, and each constituted a separate file that had been automatically stored on his computer as a temporary internet file. Id. Two images were full-sized enlargements of two of the thumbnails. Id. The jury acquitted Speers on the charges relating to his alleged possession of the thumbnail images, but found him guilty 38 on the two counts of knowing possession of the full-size images. Id. at 129, ¶ 9, 98 P.3d at 564. ¶65 Before the second trial, Speers moved in limine to bar the State from introducing all images, web pages, and associated source code into evidence on due process and double jeopardy grounds. The superior court granted the motion in part, stating: The State is not to introduce any evidence of anything on the [] website except for the two full-sized images and the two related thumbnail images for convicted in the previous trial. the court introduce to reconsider into evidence its which defendant was During trial, the State asked ruling, certain the asserting portions of it pages needed from to this website so it could show the images from these pages had been consciously accessed. After acknowledging it had been confused about the content and what had been charged in the sexual exploitation case, the superior court granted the motion and allowed the State to introduce into evidence 16 thumbnails and one enlarged image from the first page of the website (none of which had been charged in the sexual exploitation case) and four enlarged images from the second page of the website (two of which had not been charged in that case and the two that gave rise to his convictions in that case). The State thereafter introduced and into evidence the thumbnails permitted by the court. 39 enlarged images ¶66 Speers argues admission of evidence of the web site was contrary to State v. Little, 87 Ariz. 295, 306-07, 350 P.2d 756, 763-64 (1960), which held evidence of a prior offense is inadmissible in the prosecution of a subsequent offense if the defendant was acquitted of the prior offense. As our supreme court stated in Little: A verdict of acquittal should relieve the defendant from having to answer again, at the price of conviction for that crime or another, evidence which amounts to a charge of a crime of which he has been acquitted. 307, 350 P.2d at 764. Id. at Speers reliance on Little is misplaced; as we have described, the court did not allow the State to introduce evidence of any alleged prior offense that had resulted in an acquittal. ¶67 Speers evidence violated 404(c)(1). also contends Arizona admission Rules of of Evidence this propensity 402, 403, and Speers challenged the admission of this evidence on these same grounds in his appeal from the first trial and this court held [t]here was no error in its admission. 1 CA-CR 03-0812, at *8-*12. Generally, issues Speers, raised and decided in a prior appeal of the same case cannot be raised again in a subsequent appeal. State v. Waldrip, 111 Ariz. 516, 518, 533 P.2d 1151, 1153 (1975); see also Employers Mut. Liab. Ins. Co. v. Indus. Comm n, 115 Ariz. 439, 441, 565 P.2d 1300, 1302 (App. 1977) ( if an appellate court has ruled upon a legal 40 question and remanded for further proceedings, the legal questions thus determined by the appellate court will not be differently case ). determined on a subsequent appeal in the same We, therefore, decline to revisit our prior decision on this issue. ¶68 Finally, contrary to Speers contention, Arizona Rule of Criminal Procedure 16.1 does not preclude the superior court from reconsidering its additional evidence. pretrial ruling and admitting Rule 16.1(d) expressly allows the superior court to reconsider pretrial rulings for good cause. 15 superior court s the determination it had mistakenly The excluded otherwise admissible evidence based on a misunderstanding of the facts constituted good cause for modifying its prior ruling. See State v. Davis, 137 Ariz. 551, 560, 672 P.2d 480, 489 (App. 1983) (superior court had good cause to reconsider ruling on evidence because of new information). 16 15 Rule 16.1(d) provides in full as follows: Except for good cause, or as otherwise provided by these rules, an issue previously determined by the court shall not be reconsidered. 16 We reject Speers assertion the court s reconsideration of its ruling was prejudicial because the court had denied [him] sufficient funds to retain a particular computer expert. The court found the expert s estimated charges were excessive and authorized a $10,000 payment unless Speers made a showing of good cause for an increase. 41 VII. Juror Misconduct ¶69 his Speers argues the superior court should have granted motion for a mistrial because during deliberations, one juror told other jurors he had an adult relative who had been molested as a young child, and when he asked the relative whether she remembered the facts, she told him she remembered everything as if it was today. The court questioned the other jurors about the juror s statement and asked, if deliberations were to continue, would they be able to consider only evidence admitted in court. After receiving assurances they would, the superior court excused the juror who had made the statement, replaced that juror with an alternate, denied Speers motion for mistrial, and instructed the jury they were to determine the facts only from the evidence presented during the trial and were to set aside and disregard all past deliberations and begin deliberations all over again. ¶70 When an allegation of juror misconduct arises, a superior court has considerable discretion to determine whether the misconduct requires a mistrial or other corrective action. State v. Apodaca, 166 Ariz. 274, 276-77, 801 P.2d 1177, 1179-80 (App. 1990). superior Absent abuse of discretion, we will not reverse a court s ruling as misconduct merits a mistrial. to whether Id. such alleged juror Moreover, juror misconduct is not a ground for mistrial unless the defendant demonstrates 42 actual prejudice or if prejudice may be fairly presumed from the facts. State v. Miller, 178 Ariz. 555, 558, 875 P.2d 788, 791 (1994). ¶71 The Here, there is no question juror misconduct occurred. juror not only failed to disclose his family member s molestation during voir dire but then related to other jurors the conversation he had remember the event. with her regarding her ability to See Ariz. R. Crim. P. 24.1(c)(3) (juror misconduct includes [r]eceiving evidence not properly admitted during the trial, and [p]erjuring himself or herself or willfully failing to respond fully to a direct question posed during the voir dire examination ). ¶72 Any prejudice from the juror s failure to make proper disclosure during voir dire, however, was cured by the court s dismissal of the juror and substitution of an alternate. And, Speers was not deprived of a fair trial because the jurors receipt of the extrinsic evidence did not taint the verdict. As discussed above, after learning of the situation, the superior court questioned the other deliberations continued, consideration to After receiving only jurors they would evidence assurances be as able introduced they to could, whether, to if limit their during the trial. the court then reinstructed the jury regarding its duty to determine the facts based only on the evidence produced in court and directed it to 43 set aside all past deliberations and start over again. The superior court is in the best position to judge the credibility of the jurors, State v. Hoskins, 199 Ariz. 127, 139, ¶ 37, 14 P.3d 997, 1009 (2000), and our supreme court has instructed us jurors are presumed to follow their instructions. State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996). Under these circumstances, the superior court did not abuse its discretion in denying Speers request for a mistrial. CONCLUSION ¶73 For the foregoing reasons, we affirm Speers convictions and sentences. /s/ _______________________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ _____________________________ DANIEL A. BARKER, Judge /s/ _____________________________ PETER B. SWANN, Judge 44
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