State v. Orbin

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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. MARJORIE ANN ORBIN, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 10-0057 1 CA-CR 10-0059 (Consolidated) DIVISION ONE FILED: 11/03/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause Nos. CR2004-135842-001 DT and CR2006-007050-001 DT The Honorable Arthur T. Anderson, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Jeffrey L. Sparks, Assistant Attorney General Attorneys for Appellee Phoenix Tyrone Mitchell, P.C. By Tyrone Mitchell Attorney for Appellant Phoenix T H O M P S O N, Judge ¶1 Marjorie Ann Orbin (Defendant) appeals her convictions for first degree murder, two counts of theft and two counts of fraudulent schemes and artifices. Defendant argues the trial court erred when it failed to instruct the jury on third-party culpability; denied her motion for severance; failed to exclude the testimony motions trial. for For of the State's computer mistrial, motions to the reasons that expert dismiss follow, and we and denied motion affirm for her new Defendant's convictions and sentences. I. Procedural Background ¶2 Defendant does not contest evidence to support her convictions. the sufficiency of the Therefore, it will suffice to note that Defendant and the victim divorced in 1998. They continued to live together, however, and presented themselves as husband and wife until the victim's murder approximately six years later in September 2004. ¶3 On September 22, 2004, Defendant informed police the victim was missing. On October 23, 2004, police found a portion of the victim's torso in a fifty-gallon container on state trust land in north Phoenix. The victim's body was frozen after death and at some point was cut up with a saw. Because no other portion of the victim's body was ever found, police identified the victim through DNA testing. The medical examiner identified the cause of death as "undetermined homicide." ¶4 The State charged Defendant with first degree murder, two counts of theft and two counts of fraudulent schemes and 2 artifices. After a seventy-one day jury trial that took place over the course of nearly ten months, a jury found Defendant guilty of first degree premeditated murder, two counts of theft of $100,000 or more and two counts of fraudulent schemes and artifices. The trial court sentenced Defendant to natural life for and murder concurrent, presumptive terms imprisonment for each remaining count. of five years' Defendant now appeals. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, sections and 12-120.21(A) Arizona (2003), Revised 13-4031 Statutes (2010), (A.R.S.) and 13-4033 (2010). II. The Third-Party Culpability Instruction ¶5 trial As the first issue on appeal, Defendant contends the court erred instruction on instruction read, evidence when it third-party "If sufficient you to refused to give culpability. find the raise the her proposed The has defendant issue proposed presented of Third-party culpability with respect to the crime of First Degree Murder you must find the defendant not guilty of First Degree Murder. Evidence of Third-party culpability need only tend to create reasonable doubt that the defendant committed the offense of First Degree Murder." ¶6 that Defendant the jury argues would not the instruction mistakenly 3 believe was necessary that the "so defense would be required to prove that [Defendant's former boyfriend] committed the crime." Defendant further argues the failure to give the instruction caused the jury to shift the burden to Defendant to prove her former boyfriend committed the murder. 1 The trial court declined to give the instruction, but held Defendant could argue other persons "shared culpability" for the offenses. 2 ¶7 We review the decision to refuse a jury instruction for clear abuse of discretion. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). The purpose of jury instructions is to inform the jury of the applicable law. State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996). instructions need not be faultless. Id. The A set of instructions, however, must not mislead the jury and must give the jury an understanding of the issues. the instructions, taken as See id. a We will reverse only when whole, are reasonable to suppose the jury was misled. 1 such that it is State v. Schrock, In support of her argument, Defendant claims an unidentified juror stated the jury expected Defendant to call her former boyfriend during the defense case. Defendant cites nothing in the record to support this allegation. 2 We do not have the benefit of the trial court's full analysis of this issue because Defendant failed to make the transcript of the conference regarding the jury instructions part of the record on appeal. "When matters are not included in the record on appeal, the missing portion of the record is presumed to support the decision of the trial court." State v. Mendoza, 181 Ariz. 472, 474, 891 P.2d 939, 941 (App. 1995). 4 149 Ariz. 433, 440, 719 P.2d 1049, 1056 (1986). Further, the omission of an instruction is not reversible error where the instructions, read applicable law. as a sufficiently set forth the State v. Barr, 183 Ariz. 434, 442, 904 P.2d 1258, 1266 (App. 1995). instructions whole, as a "Where the law is adequately covered by whole, no reversible error has occurred." State v. Doerr, 193 Ariz. 56, 65, ¶ 35, 969 P.2d 1168, 1177 (1998). ¶8 We find no error. First, Defendant's proposed instruction was an incorrect statement of the law and would have misled the jury. The instruction placed the burden on Defendant to introduce evidence of third-party culpability even though a defendant has no burden to introduce evidence. first sentence of the instruction provided Further, the the jury "must" acquit Defendant of first degree murder if they find nothing more than the "raise[d]." Arguably, the issue This is first of third-party not a sentence culpability correct statement of instruction the had been the law. would also of require acquittal simply because the jury believed someone else may have unknown been "culpable" capacity and to (whatever an unknown this may degree. mean) This correct statement of the law and is also misleading. in is some not a Finally, while the second sentence of the proposed instruction is a more 5 correct statement of the law, it does not alleviate or otherwise diminish the deficiencies of the first sentence. ¶9 We also unnecessary. We find no error recognize because "[a] party the instruction is entitled was to an instruction on any theory reasonably supported by the evidence." State v. Rodriguez, 192 Ariz. 58, 61, ¶ 16, 961 P.2d 1006, 1009 (1998). when A party is not entitled to an instruction, however, the applicable instructions. P.2d 795, 804 law is adequately covered in other State v. Martinez, 196 Ariz. 451, 460, ¶ 36, 999 (2000). The trial court instructed the jury regarding reasonable doubt; that Defendant was not required to prove her innocence; that Defendant was not required to introduce any evidence whatsoever, and that the State bore the burden of proof on every issue. These instructions were more than sufficient to inform the jury that Defendant had no burden to prove someone else committed the murder and ensure the jury did not shift any burden to Defendant. "[W]hen a jury is properly instructed on the applicable law, the trial court is not required to provide additional instructions that do nothing more than reiterate or enlarge the instructions in defendant s language." Bolton, 182 Ariz. at 309, 896 P.2d at 849. Further, "[j]uries are presumed to follow their instructions." State v. Dunlap, 187 Ariz. 441, 461, 930 P.2d 518, 538 (App. 1996). 6 III. The Denial of Severance ¶10 As the second issue on appeal, Defendant argues the trial court erred when it denied her motion to sever the murder count from the other counts. The trial court held the counts of murder, theft, and fraudulent schemes were all part of a common scheme or plan in which Defendant murdered the victim to obtain the proceeds from several life insurance policies, gain control of the victim's business assets, and gain control of his estate. The court further held evidence of the property offenses would be admissible in a separate trial for murder because those offenses established that Defendant's motive for the murder was financial gain. Finally, the court held evidence offense was otherwise admissible in separate trials. 3 later denied Defendant's renewed motion. jury could not separate her conduct of each The court Defendant argues the regarding the property offenses from the murder and she was, therefore, denied a fair trial. ¶11 Arizona Rule of Criminal Procedure 13.3 provides in relevant part that offenses may be joined if they are part of a common scheme or plan. Ariz. R. Crim. P. 13.3(a)(3). A "common scheme or plan" is a "particular plan of which the charged crime is a part." State v. Lee, 189 Ariz. 590, 598, 944 P.2d 1204, 3 We do not have the trial court's full analysis of this issue because Defendant failed to make the transcript of the conference part of the record on appeal. 7 1212 (1997) (quoting State v. Ives, 187 Ariz. 102, 108, 927 P.2d 762, 768 (1996)). The determination of whether offenses are part of a common scheme or plan focuses "on whether the acts are part of an over-arching criminal plan, and not on whether the acts are merely similar." 927 P.2d at 769). Id. (quoting Ives, 187 Ariz. at 109, Rule 13.4, however, provides that even when offenses have been properly joined, the offenses may be severed when "necessary to promote a fair determination of the guilt or innocence of any defendant of any offense." 13.4(a). Ariz. R. Crim. P. "[I]n the interest of judicial economy, [however,] joint trials are the rule rather than the exception." State v. Van Winkle, 186 Ariz. 336, 339, 922 P.2d 301, 305 (1996). ¶12 "We review denial of [a motion for] severance for an abuse of discretion." State v. Garland, 191 Ariz. 213, 216, ¶ 9, 953 P.2d 1266, 1269 (App. 1998). We review the issue in the context of the evidence that was before the court at the time the motion was made. 39, 38 P.3d 1192, State v. Blackman, 201 Ariz. 527, 537, ¶ 1202 (App. 2002). "A clear abuse of discretion is established only when a defendant shows that, at the time he made [the] motion to sever, he had proved that his defense would be prejudiced absent severance." 184 Ariz. 9, 25, 906 P.2d 542, 558 (1995). State v. Murray, To be entitled to reversal, however, a defendant must also demonstrate the trial court was unable to protect against any prejudice. 8 Id. "A defendant is not prejudiced by a denial of severance where the jury is instructed to consider each offense separately and advised that each must be proven beyond a reasonable doubt." State v. Johnson, 212 Ariz. 425, 430, ¶ 13, 133 P.3d 735, 740 (2006) (quoting State v. Prince, 204 Ariz. 156, 160, ¶ 17, 61 P.3d 450, 454 (2003)). ¶13 We find no error. The trial court did not abuse its discretion when it determined the offenses were part of a common scheme or plan in which Defendant murdered the victim for considerable financial gain, much of which could be obtained only after separate fraud. the murder personal and Further, by gaining business evidence control assets of the of through property the victim's theft and/or offenses was admissible to establish the identity of the murderer as well as the motive for the murder. the offense, prosecution. 200 evidence of While motive is not an element of a motive is relevant in a murder State v. Hunter, 136 Ariz. 45, 50, 664 P.2d 195, (1983). Finally, severance of the offenses was not necessary for a fair determination of guilt or innocence on any one of the five charges. ¶14 not Defendant has also failed to show the trial court did adequately protect against any prejudice. The court instructed the jurors that the State must prove each element of each offense beyond a reasonable doubt; that each count was a 9 separate and distinct offense the jury must consider separately from any other count; that they must consider each count in the context of the evidence and law that applied to that particular count, and that their decision on any one count must not be influenced by their decision on any other count. Again, "[a] defendant is not prejudiced by a denial of severance where the jury is instructed to consider each offense separately and advised that each must be proven beyond a reasonable doubt." Johnson, 212 Ariz. at 430, ¶ 13, 133 P.3d at 740. juries are presumed to follow their instructions. Further, Dunlap, 187 Ariz. at 461, 930 P.2d at 538. IV. The Failure to Preclude Expert Testimony ¶15 Defendant next argues the trial court erred when it refused to preclude the testimony of a detective/computer expert who analyzed data found on computers seized from Defendant's home. Defendant argues as a the court the precluded disclose the manner. We review the decision of whether to exclude evidence supplemental State's report failure the testimony final for have expert's expert's sanction should in a to timely as a sanction for untimely disclosure for abuse of discretion. State v. Rienhardt, 190 Ariz. 579, 586, 951 P.2d 454, 461 (1997). ¶16 Due process requires that the State disclose material evidence in a timely manner. State v. Gulbrandson, 184 Ariz. 10 46, 63, 906 P.2d 579, 596 (1995). disclosure is to avoid undue One of the purposes of timely delay and surprise. State Stewart, 139 Ariz. 50, 59, 676 P.2d 1108, 1117 (1984). court determines however, the a disclosure court must violation consider merits whether v. If a sanctions, less stringent sanctions would suffice before it restricts the introduction of evidence. State v. Meza, 203 Ariz. 50, 58, ¶ 37, 50 P.3d 407, 425 (App. 2002). ¶17 A issue shows disclosure. simple review Defendant of the suffered Therefore, the procedural no history of this prejudice the late court trial from not abuse its did discretion when it declined to preclude the testimony of the expert. In April 2005, more than three years before trial began, the State provided Defendant the State's expert's initial report regarding his analysis of computers seized from Defendant's residence, as well as five compact discs (CDs) of data copied from those computers. In January 2006, the State provided Defendant an additional report from the expert as well as three more CDs. year later, specifically specific the Twice at the prosecutor's request over a expert whether internet reviewed anyone searches the used data the between again to computers September 8, determine to conduct 2004 and September 10, 2004, ostensibly to show whether the victim was still alive at that time. 11 ¶18 Voir dire began on December 15, 2008 and continued for several weeks. On December 22, 2008, the State provided Defendant the results of the computer expert's most recent work regarding the internet searches. three page report, material." court another These materials consisted of a CD and 172 pages of "related The additional materials included what the trial described as a "narrative and grid" of the expert's additional findings. ¶19 On sanctions. January 8, Defendant 2009, argued Defendant the filed disclosure a of motion these for latest materials was untimely, interfered with her ability to put on a defense, interfered with her right to confrontation, and was otherwise highly prejudicial. 4 to preclude the State's As a sanction, Defendant sought computer expert's testimony in its entirety. Because trial was expected to continue for several months the and State's expert would not testify for several months, the trial court delayed ruling on the motion. In the interim, the court ordered the parties' computer experts to meet and make sure Defendant's expert had everything he needed to conduct his own analysis and address the reports and opinions of the State's expert. 4 Within her argument on this issue, Defendant claims she could not make her opening statement at the beginning of trial because she was not prepared to address the late disclosure. There is nothing in the record to support this allegation. 12 ¶20 The trial court ruled on the motion for sanctions six months later in June 2009. was not empanelled The court held that because the jury until January 29, 2009, the State "technically" disclosed the expert's supplemental materials in a timely fashion. The court further held, however, that the State violated the "spirit" of disclosure when it failed to disclose the additional materials earlier when it had the opportunity to do so. Even so, the trial court refused to impose the ultimate sanction of preclusion. ¶21 The additional court first disclosure held "consisted the of new a material limited in and the focused analysis" which summarized the work requested and the results found. The court also noted the State's expert found only a small number of "hits" which showed someone used the computer to access certain websites during the time frame at issue. The court further held Defendant suffered no prejudice from the late disclosure. Defendant interviewed the State's expert regarding his analysis and opinions on February 5, 2009. Near that same time, the computer experts for both parties met to create an agreed upon "mirror Defendant's expert. image" of the hard drives at issue for At that time, Defendant informed the court her expert would need one to two months to conduct his own analysis, and Defendant's expert ultimately had far more time than this to complete his work. The trial court ultimately held 13 that because Defendant had sufficient opportunity to conduct all additional discovery she believed necessary, her expert had more than sufficient time to conduct his own analysis, and Defendant failed to demonstrate she was prejudiced in any way, no further sanctions were warranted. ¶22 Under these circumstances, the trial court did not abuse its discretion when it refused to preclude the testimony of the State's expert as a sanction for untimely disclosure. This is especially true in light of events that occurred after the court's ruling. The State's computer expert did not begin his testimony until June 9, 2009, more than six months after the late disclosure and approximately four months after Defendant's own computer expert was provided all the materials he needed to conduct all the work he believed necessary. Again, Defendant informed the court in February that her expert needed only one to two more Defendant's months expert to began conduct his his testimony analysis. on August nearly two months after the State's expert testified. Further, 3, 2009 Defendant has never claimed her expert did not have sufficient time or materials to conduct his own analysis of the data or the work conducted by the State's expert, or that she did not have enough time to prepare for the cross-examination of the State's expert. The passage of such a significant amount of time after the disclosure and the steps taken by the court to ensure Defendant 14 and her expert had sufficient time and materials to address the State's expert's anticipated testimony were more than sufficient to eliminate any potential prejudice from the late disclosure. Therefore, the trial court did not abuse its discretion when it declined to preclude the admission of the testimony of the State's computer expert. V. Denial of the Motions for Mistrial and Motions to Dismiss ¶23 Defendant next argues the trial court erred when it denied her motions for mistrial and motions to dismiss, all of which were based on alleged prosecutorial misconduct. court has broad discretion on motions for mistrial. The trial The failure to grant a motion for mistrial is error only if it was a clear abuse of discretion. We will reverse only Murray, 184 Ariz. at 35, 906 P.2d at 568. if the court's improper and clearly injurious." decision was "palpably Id. (citing State v. Walton, 159 Ariz. 571, 581, 769 P.2d 1017, 1027 (1989)). The trial judge is in the best position to determine whether a particular incident calls for a mistrial because the trial judge is aware of the atmosphere of the trial, the circumstances surrounding the incident, the manner in which any objectionable conduct occurred, and its possible effect on the jury and the trial. See State v. Koch, 138 Ariz. 99, 101, 673 P.2d 297, 299 (1983). Likewise, we review the decision of whether to grant a motion to 15 dismiss for an abuse of discretion. State v. Pecard, 196 Ariz. 371, 376, ¶ 24, 998 P.2d 453, 458 (App. 1999). ¶24 Regarding prosecutorial misconduct, prosecutorial misconduct is not merely "legal error, negligence, mistake or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial." 677 P.2d 261, prosecutorial Pool v. Superior Court, 139 Ariz. 98, 108, 271 (1984). misconduct, we In reviewing generally allegations consider whether of the remarks directed the jurors attention to matters they should not have considered in reaching their verdict, as well as the probability remarks. (1997). that the jurors were actually influenced by the State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 As with motions for mistrial, the trial court is in the best position to judge the effect of a prosecutor s comments on a jury. (1988). State v. Hansen, 156 Ariz. 291, 297, 751 P.2d 951, 957 "Prosecutorial misconduct does not require reversal unless the defendant has been denied a fair trial as a result of the actions of counsel. " State v. Bible, 175 Ariz. 549, 600, 858 P.2d 1152, 1203 (1993) (quoting State v. Dumaine, 162 Ariz. 392, 400, 783 P.2d 1184, 1192 (1989)). In our determination of whether reversal is required, "[t]he focus is on the fairness prosecutor." of the trial, not the culpability Bible, 175 Ariz. at 601, 858 P.2d at 1204. 16 of the A. Witness Hill ¶25 Defendant argues the first instance of prosecutorial misconduct came during the testimony of witness "Hill." Hill met Defendant in jail where they were both prisoners. Hill entered into against Defendant. investigators a plea bargain After Defendant in she told which entered her she she agreed the acted to plea, testify Hill alone told when she murdered the victim then cut up and disposed of his body. At trial, however, Hill testified the majority of what she told the investigators was a lie, that she never heard Defendant make any admissions or otherwise say anything about her case, and that she lied simply to get a better plea deal. thoroughly and aggressively statements almost from the impeached very Hill beginning The prosecutor with of her her prior direct examination. 5 ¶26 Defendant argues the alleged prosecutorial misconduct occurred not during the prosecutor's examination of Hill, but during a break in Hill's testimony. Defendant argues that during the break, the prosecutor threatened Hill with perjury in an effort to intimidate her and make her change her testimony. 5 At another interview prior to her testimony at trial, Hill told counsel for both parties she lied about Defendant to get a better plea deal. Therefore, the State knew she would contradict her prior statements. The State moved for permission to treat Hill as a hostile witness shortly after her direct examination began, but the court denied the motion as well as the renewed motion. 17 The prosecutor argued to the court that he was merely "kibitzing" with Hill's counsel and not speaking to Hill. After a discussion of what did or did not occur, the trial court held the incident went to the weight to be attributed to Hill's testimony and, therefore, the jury should be informed of what happened. Hill then testified incident. Hill overheard the before the prosecutor's jury about comments perjury and discussed the issue with her attorney. the about Her attorney told her not to worry and explained why, in her opinion, she had not committed prosecutor's perjury. comments Hill further increased her testified tension, that that the she was intimidated by the comments and that she took them as a threat. ¶27 This was not, however, the first time the subject of perjury charges had been broached. Hill acknowledged that in a prior interview with both counsel in which she first claimed her statements to investigators frequent reference to perjury. were lies, the prosecutor made Further, Hill acknowledged that at the time of the prior interview, she understood she could be charged with perjury depending upon the circumstances. Even Hill's counsel acknowledged that the threat of perjury charges had "been over [Hill's] head" since her recantations, that the prosecutor had "talked to [Hill] about possible perjury charges from the very beginning," and that Hill knew even before trial she might eventually be charged with perjury. 18 Further, Hill stated at the interview that she was not bothered by any threat of perjury because "it's time for me to start being honest." ¶28 Defendant later moved for a mistrial and argued the prosecutor's threat of constituted misconduct. 6 perjury against his own witness The trial court denied the motion. The court held that while the prosecutor was aggressive, nothing the prosecutor did was improper and there was no misconduct. ¶29 We find no abuse of discretion. misconduct. First, there was no It is not per se improper for a judge or prosecutor to warn a witness about the possible consequences if the witness commits perjury. Dumaine, 162 Ariz. at 400, 783 P.2d at 1192. A problem arises only when a witness is so intimidated by such a warning that the defendant "was completely deprived of the . . . witness's testimony." not occur testimony, here. even Id. at 399, 783 P.2d at 1191. Hill after was the consistent "threat" of throughout perjury. That did her trial Despite her claim of intimidation, Hill acknowledged repeatedly she had told investigators Defendant admitted she committed the murder, but maintained her position that this was simply a series of lies she told to obtain a more favorable plea bargain. Hill never waivered from her testimony that she lied to the investigators to get a better deal and that she was now telling the truth at 6 The motion raised other arguments regarding examination of Hill that are not presented on appeal. 19 the trial, even after the discussion of the perjury threat. She did not, as claimed by Defendant, suddenly testify more favorably for the State. Therefore, the trial court did not abuse its discretion it when denied the motion for mistrial based on prosecutorial misconduct. B. The Reference to Attorney Retainer Agreements ¶30 Defendant next argues the prosecutor engaged in misconduct "by commenting on [Defendant's] efforts at retaining attorneys for her defense" in his opening statement. argues the prosecutor should not have referenced Defendant a retainer agreement in which she retained attorneys to assist her with the pre-indictment investigation of the victim's disappearance, nor a later estate. retainer with the same firm to handle the victim's Defendant filed motions for mistrial and to dismiss in part as a result of the reference to the retainers in opening, both of which were denied by the trial court. Defendant argues the reference to the retainers violated her right to counsel and deprived her of a fair trial "as the jury inevitably inferred guilty [sic] through this evidence." ¶31 We find no abuse of discretion. The prosecutor referenced the retainers only after the trial court overruled Defendant's objection and expressly held the prosecutor could reference both retainers in his opening statement. 20 There can be no prosecutorial misconduct when the prosecutor has done nothing more than what the trial court expressly permitted. C. Disclosure of Benefits to Witness Johnson ¶32 Defendant next argues the prosecutor engaged in misconduct when he failed to disclose benefits witness "Johnson" received Johnson in exchange was another for her former testimony jail inmate against who Defendant. testified that Defendant admitted she murdered the victim, froze his body and cut it up. Johnson also testified that Defendant admitted she committed the murder for financial gain. Johnson, however, did not accept a plea offer in exchange for her testimony. Johnson went to trial in her own case, was convicted of two felony counts and sentenced to imprisonment. ¶33 Even though the State had not disclosed any benefit Johnson may have received in exchange for her testimony, Defendant explored whether Johnson cooperated with the State in exchange for any benefit during cross-examination. already knew detectives had the prosecutor appeared at and one various matter, including her sentencing. of the hearings in Defendant investigating the Johnson During a bench conference on this issue, however, the prosecutor repeatedly stated Johnson "got no testimony. deal" or any other benefit in exchange for her The prosecutor admitted, however, that he and the detective appeared at various hearings and the sentencing in the 21 Johnson matter, and that they informed the presiding judge she was cooperating in Defendant's case. ¶34 Through conducted among during additional other trial, things, the that discovery parties the and several eventually prosecutor and hearings established, the detective appeared at various hearings in Johnson's case; they spoke to the court at a hearing to modify Johnson's release conditions, following which, she was released from jail; they spoke to the court about their concerns for her safety; they spoke at Johnson's sentencing and asked for leniency; the State provided Johnson with approximately sixty days of housing to ensure her safety and her appearance at Defendant's trial; and that the State provided Johnson food during that same time period as well as transportation trial. to and from the court during Defendant's Defendant moved for both a mistrial and dismissal for prosecutorial misconduct based on the failure to disclose this information. ¶35 of The trial court found Defendant "feign[ed] ignorance" some of these matters. Based on the transcript of Defendant's interview of Johnson prior to trial, the court found Defendant already knew the prosecutor and the detective spoke to the trial court in the Johnson matter; that Defendant knew they informed the court that Johnson was cooperating in Defendant's case and that they had "good things to say about her;" and that 22 Defendant knew they not only appeared at Johnson's sentencing, but that they addressed the sentencing court and asked that the court be lenient. Even so, the trial court held the prosecutor should have disclosed all of this information prior to trial. ¶36 The trial court, suffered no prejudice. however, further held Defendant The court noted Johnson was still under subpoena to testify and subject to recall, and that because "an extensive evidentiary hearing has been conducted to ferret out the specifics of anything that could be considered a 'benefit' to Johnson," Defendant had the benefit of "extensive testimony" with which to impeach Johnson on recall. The court found that under these circumstances, neither sanctions nor dismissal were warranted. defense Defendant case. Defendant had ultimately During the her recalled direct opportunity to Johnson examination fully explore during of all the Johnson, of the "benefits" Johnson received from the State and whether those benefits had any effect on the substance of her testimony or otherwise played any role in her decision to testify against Defendant. ¶37 Assuming without deciding that the State should have disclosed all of the additional "benefits" the State provided to Johnson, Defendant suffered no prejudice. The court gave Defendant more than enough time and opportunity to discover the existence of these benefits, discuss them at length with Johnson 23 prior to her recall, determine their effect, if any, on Johnson's testimony and then utilize them to impeach Johnson once she was recalled during the defense case. Under these circumstances, the trial court did not abuse its discretion when it denied the motions for mistrial and to dismiss based on the prosecutor's failure to disclose the benefits provided to Johnson. D. The Investigation of Detective Barnes ¶38 Within her argument on the court's failure to grant the motions for mistrial and dismissal based on prosecutorial misconduct, Defendant argues the State failed to disclose that the lead detective, "Barnes", had himself come under criminal investigation for unrelated matters during this case. suffice to note that upon receiving Defendant's It will motion for discovery, the State obtained the materials regarding the Barnes investigation and submitted them to the court for an in camera inspection. the court Further, Defendant eventually deposed Barnes and held a series of hearings questioned by the court and counsel. in which Barnes was During these proceedings, the trial court ultimately allowed Barnes to assert his Fifth Amendment privilege discussion The Barnes to or before testify 24 at December any regarding any alleged "benefits" Johnson might receive. called on regarding 2007 never occurred self-incrimination 14, State that against trial. Defendant, however, called Barnes during the defense case. Prior to his testimony, the trial court held Defendant could not question Barnes about any discussion of benefits occurred on or before December 14, 2007. for Johnson that Barnes did testify, however, about benefits allegedly afforded Johnson after that date. ¶39 her Despite her inclusion of this issue in this section of opening brief, Defendant never moved for a mistrial nor dismissal based on any prosecutorial misconduct related to the Barnes investigation. appeal the trial Further, court should have dismissed the case sua sponte. this issue consists of, Defendant does declared a not argue mistrial on nor Defendant's entire argument on "[t]his strict limitation [to the discussion of benefits for Johnson that occurred after December 14, 2007] violated Appellant's Fifth Amendment [sic], Sixth Amendment right of confrontation, and due process right to a fair trial, as Appellant could not confront the lead investigator regarding pertinent issues in this case concerning the murder investigation of [the victim]." ¶40 Because Defendant did not raise this issue below, we review for fundamental error. State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991). "To establish fundamental error, [a defendant] must show that the error complained of goes to the foundation of his case, takes away a right that is essential to 25 his defense, and is of such magnitude that he could not have received a fair trial." State v. Henderson, 210 Ariz. 561, 568, ¶ 24, 115 P.3d 601, 608 (2005). Even once fundamental error has been established, a defendant must still demonstrate the error was prejudicial to be entitled to reversal. ¶41 Id. at ¶ 26. We find no error, fundamental or otherwise. Defendant complains examination invocation of of about Barnes, his the court's Defendant Fifth Amendment While limitation not does of Barnes' privilege claim against her self- incrimination was invalid, and our review of the record reveals nothing to invocation. raise any question about the validity of Barnes' A defendant has no Sixth Amendment right to compel the testimony of a witness who has made a valid assertion of the Fifth Amendment privilege against self-incrimination. State v. Rosas-Hernandez, 202 Ariz. 212, 216, ¶ 10, 42 P.3d 1177, 1181 (App. 2002). VI. The Failure to Disclose Videotapes ¶42 As the final issue on appeal, Defendant argues the trial court erred when it denied her motion for new trial based on the State's failure to disclose numerous videotapes which depicted Defendant gatherings. and the victim as a couple at family "Motions for new trial are disfavored and should be granted with great caution." State v. Spears, 184 Ariz. 277, 287, 908 P.2d 1062, 1072 (1996) (quoting State v. Rankovich, 159 26 Ariz. 116, 121, 765 P.2d 518, 523 (1988)). We review denial of a motion for new trial for abuse of discretion. Spears, 184 Ariz. at 287, 908 P.2d at 1072. ¶43 The victim's brother possessed the tapes in question. Because he was the deceased victim's brother, and because he was the executor of the victim's estate, the victim's brother was a "victim" of the offenses under Arizona law. 4401(19) (2007); Ariz. R. Crim. P. 39(a)(1). A.R.S. § 13- Defendant argues the tapes were relevant to show that she and the victim were a happy couple alleged. and that Defendant did not hate the victim as Defendant further argues the tapes showed the victim was a large man and Defendant was a small woman and, therefore, Defendant did not have the physical capacity to murder the victim, freeze his body, cut it up and dispose of it. ¶44 The trial court denied the motion for new trial. First, the court held the State had no duty to disclose the tapes because the tapes were never in the possession of the State or any agent of the State. Second, the court held other evidence was admitted at trial regarding the nature of Defendant and the victim's Defendant's relationship, strength. Third, the 27 their court relative found sizes Defendant and had personal knowledge of the existence of the tapes yet never requested them until after the verdicts. 7 ¶45 The trial court did not abuse its discretion when it denied the motion for new trial based on the failure to disclose the videotapes. The State was not required to disclose the videotapes because neither the State nor any agent of the State ever possessed the tapes. The State only has a duty to obtain and disclose information in the possession or control of members of the prosecutor s staff and persons who have participated in the investigation or evaluation of the case who are under the prosecutor s control. Ariz. R. Crim. P. 15.1(f); Rienhardt, 190 Ariz. at 585, 951 P.2d at 460. become an agent of the cooperates with the State. state simply See also A victim does not because the victim State v. Piper, 113 Ariz. 390, 392, 555 P.2d 636, 638 (1976); Rienhardt, 190 Ariz. at 585, 951 P.2d at 460. Further, the State generally does not "have an affirmative duty to seek out and gain possession of potentially exculpatory evidence," nor does the State have a duty to gather evidence for a defendant to use in establishing a defense. State v. Rivera, 152 Ariz. 507, 511-512, 733 P.2d 1090, 10941095 (1987). 7 Defendant failed to make the transcript of the hearing regarding the motion for new trial part of the record on appeal. 28 VII. Conclusion ¶46 Because we find no error, we affirm convictions and sentences. /s/ JON W. THOMPSON, Presiding Judge CONCURRING: /s/ MAURICE PORTLEY, Judge /s/ JOHN C. GEMMILL, Judge 29 Defendant's

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