Professional Documents
Culture Documents
State V Ronald Young
State V Ronald Young
AFFIRMED IN PART
VACATED AND REMANDED IN PART
E C K E R S T R O M, Presiding Judge.
¶1 Appellant Ronald Young was convicted after a jury trial of conspiracy to
prison terms of natural life for the first-degree murder conviction and life with the
possibility of parole after twenty-five years for the conspiracy conviction. Young argues
on appeal that his convictions and sentences should be reversed because the trial court
erred by denying his pretrial motions to dismiss and to suppress evidence, by admitting
evidence about a shotgun, and by denying his motions for a mistrial and a new trial. He
also argues there was insufficient evidence to support his convictions. For the following
¶2 We view the facts and the inferences to be drawn from them in the light
most favorable to sustaining the convictions. State v. Cotten, 228 Ariz. 105, n.1, 263
P.3d 654, 656 n.1 (App. 2011). In November 1996, Gary T. was killed by a bomb that
had been placed on the passenger seat of his car. Although Pamela Phillips, Gary’s
former spouse, was considered one of several possible suspects in the killing, law
the crime, and the case remained unsolved for nearly ten years.
¶3 Phillips and Gary had dissolved their marriage in November 1993, but
Phillips remained the owner and beneficiary of a policy insuring Gary’s life for $2
2
million.1 Phillips moved from Tucson to Aspen, Colorado, in May 1994. In Aspen,
Phillips became friends with her neighbor, Young; he acted as her business consultant
and helped her develop a website for a company she planned to start. Young and Phillips
apparently after Young had left, Aspen Police detective James Crowley attempted to
interview Young as the suspect in a “fraud case.” Phillips’s attorney had reported the
fraud to the police, and Phillips initially had wanted to assist in pursuing the charges but a
few weeks later had refused to cooperate. Unable to locate Young, Crowley obtained a
search warrant for his house. The warrant specified Crowley could search for “computer
equipment, computers, computer files, optical storage, business documents and things
related to the fraud case.” After gathering additional evidence from several financial
institutions, Aspen police obtained a warrant for Young’s arrest in August 1996.
¶5 In October 1996, a few weeks before Gary was killed, law enforcement
officers found a van Young had rented from the Aspen airport parked near Young’s
parents’ house in California. Because the van had been reported stolen, local police
impounded it and contacted the Aspen Police Department. Crowley searched the van and
found numerous documents in Young’s name. When Crowley later learned about Gary’s
murder, he remembered he had seen a map of Tucson and paperwork from Gary and
Phillips’s marital dissolution among the documents in the van. The van also contained a
1
In January 1997, Phillips received over $2 million as proceeds from the policy.
3
list of the names of some of Gary’s friends and family members and a note with more
identifying information about two of the people on the list, as well as evidence that in
July 1996, under an assumed name, Young had stayed in a hotel in the same area of
Tucson where Gary had lived. Crowley contacted the Pima County Sheriff’s Department
(PCSD) with the information he had obtained. PCSD, however, was unable to locate
Young.
warrant. Searches of his residence, hotel room, storage unit, and vehicle, as well as of a
laptop computer seized during his arrest, revealed evidence that Young regularly had
been receiving money from Phillips since Gary’s death. Specifically, Young had
owed to him. A forensic accountant examined that evidence, as well as Young’s and
Phillips’s bank statements and Federal Express shipping records, and concluded the loan
schedules were consistent with payments Phillips had been making to Young out of the
proceeds of the life insurance policy. He also concluded the two had attempted to
Phillips in which they exhaustively discussed the payments. During those conversations,
they referred to their financial dealings both explicitly and implicitly as an illegal
arrangement, and they expressed concern about detection. The two discussed news
stories about Gary’s death, and in one conversation when Phillips told Young she would
not send him more money, he threatened that she would go to prison for murder. Finally,
4
the jury heard testimony from a fellow jail inmate of Young’s that Young had confessed
¶8 Young and Phillips each were charged with first-degree murder and
conspiracy to commit first-degree murder. Young was convicted of both charges and
Sufficiency of Evidence
We review the sufficiency of evidence de novo. State v. Bible, 175 Ariz. 549, 595, 858
P.2d 1152, 1198 (1993). In doing so, we determine whether there is substantial evidence
supporting the conviction. State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990).
support a guilty verdict beyond a reasonable doubt.” State v. Rodriguez, 192 Ariz. 58,
¶ 10, 961 P.2d 1006, 1008 (1998); accord Jackson v. Virginia, 443 U.S. 307, 319 (1979).
If reasonable jurors could fairly disagree about whether evidence establishes a fact at
issue, the evidence is considered substantial. Rodriguez, 192 Ariz. 58, ¶ 10, 961 P.2d at
1008.
¶10 Relying on cases from other jurisdictions, Young contends that when a case
reasonable theory of innocence consistent with the evidence. See, e.g., United States v.
Marable, 574 F.2d 224, 228-29 (5th Cir. 1978); Daniels v. State, 777 So. 2d 1113, 1116
(Fla. Dist. Ct. App. 2001). Although that once was the law in Arizona, it is no longer.
See State v. Olivas, 119 Ariz. 22, 23, 579 P.2d 60, 61 (App. 1978); accord State v.
5
Harvill, 106 Ariz. 386, 391, 476 P.2d 841, 846 (1970). Rather, our supreme court has
held that “the probative value of direct and circumstantial evidence are intrinsically
similar; therefore, there is no logically sound reason for drawing a distinction as to the
weight to be assigned each.” Harvill, 106 Ariz. at 391, 476 P.2d at 846. And here, there
was sufficient evidence from which the jury could have found Young first conspired with
¶11 Young contends the evidence established only that he was blackmailing
Phillips and that no evidence connects him to Gary’s murder. He contends the evidence
that he was in Tucson the summer before Gary was killed only shows that he “[was]
investigating [Gary]’s hiding assets in order to avoid paying child support on behalf of
Phillips.” But the jury was entitled to draw different inferences from that evidence. See
State v. Arce, 107 Ariz. 156, 161, 483 P.2d 1395, 1400 (1971) (“It was the function of the
jury to decide what reasonable inferences could be drawn from the evidence.”).
Moreover, a fellow inmate testified that Young had confessed to killing Gary. And some
of Young’s own statements in his recorded conversations with Phillips suggest he was
responsible for Gary’s death. In one conversation, for example, he told her that he had
“tried to help [her] on something that was . . . beyond what anybody else in the world
would probably do” and now she is “living off the benefits of it.” There was sufficient
evidence, both circumstantial and direct, from which a reasonable jury could have
6
Pre-Indictment Delay
¶12 Young argues the trial court erred in denying his motion to dismiss the case
for pre-indictment delay. He argues his due process rights were violated by the nearly
twelve-year delay between when the state identified him as a suspect and his indictment
discretion, State v. Pecard, 196 Ariz. 371, ¶ 24, 998 P.2d 453, 458 (App. 1999), but we
review constitutional issues de novo. See State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787,
¶13 “To establish that pre-indictment delay has denied a defendant due process,
there must be a showing that the prosecution intentionally delayed proceedings to gain a
tactical advantage over the defendant or to harass him, and that the defendant has actually
been prejudiced by the delay.” State v. Broughton, 156 Ariz. 394, 397, 752 P.2d 483, 486
(1988); accord State v. Lacy, 187 Ariz. 340, 346, 929 P.2d 1288, 1294 (1996). Relying
primarily on United States v. Lovasco, 431 U.S. 783, 790 (1977), Young argues “the
intentional prosecutorial delay,” and thus, he contends, our supreme court actually has
restricted due process rights in the context of pre-indictment delay “far more than the
United States Supreme Court authorized in Lovasco.”2 But, the Court in Lovasco simply
held that “to prosecute a defendant following investigative delay does not deprive him of
2
Contrary to the state’s argument, the United States Supreme Court is the final
word on matters of federal constitutional interpretation. See State v. Roberson, 223 Ariz.
580, ¶ 16, 225 P.3d 1156, 1159 (App. 2010).
7
due process, even if his defense might have been somewhat prejudiced by the lapse of
time,” and the Court expressly refused to adopt a requirement that a prosecutor file an
431 U.S. at 792, 795. And although Young suggests otherwise, the Court also expressly
declined to decide whether anything less than intentional delay to gain a tactical
advantage, i.e., a reckless disregard that a delay might “impair the ability to mount an
effective defense,” is sufficient to prove a due process violation. 431 U.S. at 795 n.17,
796-97.
¶14 Nevertheless, even if Young need not prove intentional prosecutorial delay
to show a due process violation, he nonetheless must prove actual prejudice from the
delay.3 See id. at 789-90; Broughton, 156 Ariz. at 397, 752 P.2d at 486. Young argues
he suffered prejudice by having to defend a “wrongful death civil suit prior to and
concurrently with his criminal prosecution.” He contends the state “gained a tactical
advantage by waiting until the civil case was filed . . . so that it could learn from Young’s
and Phillips’ answers to pleadings and discovery requests.” But he does not specify what
the state learned from Young’s responses or exactly how this prejudiced him. See
3
He argues he presumptively was prejudiced by the delay, relying on Doggett v.
United States, 505 U.S. 647, 651-52 (1992), and Humble v. Superior Court, 179 Ariz.
409, 416, 880 P.2d 629, 636 (App. 1994). But those cases do not apply to pre-indictment
delay. Rather, they involve post-indictment speedy trial rights. See Doggett, 505 U.S. at
651-52; Humble, 179 Ariz. at 416-17, 880 P.2d at 636-37. And the Supreme Court
expressly has “declined to extend th[e] reach of the [speedy trial provision of the Sixth
Amendment] to the period prior to arrest.” United States v. Marion, 404 U.S. 307, 321
(1971). Moreover, the law is abundantly clear that a defendant must prove actual
prejudice from pre-indictment delay. Id. at 323-24, 326.
8
Broughton, 156 Ariz. at 398, 752 P.2d at 487 (no prejudice based on mere speculation
some witnesses’ memories might have diminished or earlier testing of weapon could have
been exculpatory); State v. Hall, 129 Ariz. 589, 592-93, 633 P.2d 398, 401-02 (1981) (no
other grounds by State v. Bass, 198 Ariz. 571, 12 P.3d 796 (2000); State v. Torres, 116
Ariz. 377, 379, 569 P.2d 807, 809 (1977) (no prejudice when defendant failed to show
¶15 Thus, even assuming arguendo Young did not have to prove intentional
prosecutorial delay to show a due process violation, he has not sustained his burden to
show he suffered actual prejudice from the delay. The trial court did not abuse its
Inventory Search
¶16 Young argues the trial court erred in denying his motion to suppress
evidence seized at the time of his arrest. The facts set forth in each of the following
sections relating to Young’s motions to suppress are taken from the evidence presented at
the suppression hearings. See State v. Carlson, 228 Ariz. 343, ¶ 2, 266 P.3d 369, 370
(App. 2011) (“When reviewing a suppression order entered after a hearing, we consider
only the evidence presented at the hearing, which we view in the light most favorable to
upholding the trial court’s order.”). In late 2005, Young was featured on an episode of
the television show, “America’s Most Wanted,” as a suspect in Gary’s death. As a result,
9
Florida.4 After asking if he had any weapons, an arresting officer, Sergeant Mary Tiger,
seized two bags belonging to Young from the taxicab that had been waiting for him
during his appointment. As Young had informed Tiger, a handgun was inside one of the
¶17 Tiger testified she had taken Young’s property out of the taxicab because it
was valuable and she wanted to prevent it from being lost or stolen. A detective at the
scene prepared an inventory sheet for Young’s property, but the property—including the
contents of the computer—was not otherwise searched at that time. Rather, it was given
to the agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) who
detained Young for questioning. The trial court denied the motion, finding as to this
issue “that law enforcement lawfully seized the Defendant’s property, conducted a lawful
¶18 Young argues the trial court erred in denying his motion to suppress the
evidence he asserts was wrongfully seized from the taxicab. When reviewing the denial
of a motion to suppress, we defer to the trial court’s factual findings but review de novo
the court’s ultimate legal conclusion that the search was constitutional. State v. Davolt,
207 Ariz. 191, ¶ 21, 84 P.3d 456, 467 (2004). Young emphasizes the state did not prove
his belongings would have been lost in the taxicab, and thus, no valid inventory search
occurred. However, the standard for a valid inventory search does not include a
determination of whether the belongings otherwise would have been lost. Rather, to be
4
At that time, Young was only arrested on the Colorado fraud warrant.
10
valid under the Fourth Amendment, inventory searches “must not be a pretext for a
search for evidence, . . . they must occur according to standardized procedures, and . . .
State v. Rojers, 216 Ariz. 555, ¶ 20, 169 P.3d 651, 655 (App. 2007); accord South
Dakota v. Opperman, 428 U.S. 364, 375-76 (1976). The purposes of an inventory search
are to protect the owner’s property while it is in police custody, to protect the police
against claims of lost or stolen property, and to protect the police from danger.
¶19 Young does not dispute the search here occurred in accordance with
implicitly contends, however, that this inventory search was a pretextual evidence search,
relying on the fact that Tiger had checked the “evidence” box on the inventory sheet
rather than the box marked “safekeeping.” But Tiger testified that the safekeeping
category only applied to property that was to remain at the sheriff’s office. Young’s
property, on the other hand, was given to the ATF agents once they had detained Young
for questioning. We defer to the trial court’s determination of credibility, see State v.
Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996), and the court here
expressly found Tiger’s testimony about why she checked the box on the form marked
¶20 Young also contends the seizure of his property from the taxicab did not
fall within one of the “‘few well-delineated exceptions’” to the warrant requirement, see
Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (plurality opinion), abrogated
11
on other grounds by Horton v. California, 496 U.S. 128, 130 (1990), because he “can
find no case involving the proper application of the inventory search exception where the
items to be searched are an automobile not being towed or property that is not
abandoned.” But the Supreme Court also has applied the inventory search exception to
an arrestee’s belongings at the police station before he is booked into jail. Illinois v.
Lafayette, 462 U.S. 640, 646 (1983). And Tiger testified it is standard procedure for the
sheriff’s department to take custody of and inventory the personal property of a defendant
arrested on the street and taken into custody. We find no error in the trial court’s
inventory search.5
Scope of Consent6
¶21 Young also argues his motion to suppress evidence should have been
granted because the search of his digital media surpassed the scope of his consent. ATF
special agents Richard Coes and Hugh O’Connor interviewed Young after he was
arrested. The agents were investigating him for being a fugitive in possession of a
firearm, based on the gun found in the taxicab, and for Gary’s homicide. During the
interview, they spoke to Young extensively about his relationship with Phillips and
Gary’s death. The agents asked him for consent to search his vehicle, storage locker, and
hotel room for “illicit materials,” and Young gave both verbal and written consent. The
5
Importantly, the evidence Young has focused on—the contents of his laptop
computer—were not searched at the time of his arrest.
6
Young filed numerous motions to suppress evidence on different issues.
12
consent forms Young signed broadly state that he “authorize[s] ATF . . . to conduct a
complete search of [his] residence, place of business, vehicle, and/or other listed
property,” and he “agree[s] that the [agents] may search any property, items, or
containers found . . . [and] may take any property which is deemed contraband or has
other evidentiary value.” As a result of the searches, agents seized computer “zip discs,”
requirement for a search warrant. State v. Ahumada, 225 Ariz. 544, ¶ 6, 241 P.3d 908,
910 (App. 2010). “The standard for measuring the scope of a suspect’s consent under the
reasonable person have understood by the exchange between the officer and the suspect?”
¶23 Young contends his general consent to search did not include the digital
media the officers seized. Although he has cited no Arizona case on point, he relies on
cases from other jurisdictions in which courts have found the search of a computer
exceeded the scope of consent. But the cases he relies upon do not support his argument.
First, microcassettes or even removable storage devices for computer files are more like
containers than an entire computer and Young consented to the search of any containers
found.7 See, e.g., United States v. Gomez-Soto, 723 F.2d 649, 654-55 (9th Cir. 1984)
7
The trial court expressly found the digital media devices were containers, but the
consent form also broadly allowed the search of any “property [or] items” found. Young
has argued only that the devices should not be considered containers. Because the
13
(microcassettes searchable when not specified in warrant but part of personal effects that
might contain items described in warrant); cf. United States v. Walser, 275 F.3d 981, 986
(10th Cir. 2001) (noting desktop computer holding “a library’s worth of information” not
easily analogized to physical object like dresser or file cabinet). Second, the officers in
cases Young relies on for support clearly and expressly had limited their request for
consent to search in ways the agents here did not. See United States v. Turner, 169 F.3d
84, 87-89 (1st Cir. 1999) (officers’ limiting words when gaining consent rendered scope
of consent only for physical evidence linked to crime scene); United States v.
Richardson, 583 F. Supp. 2d 694, 710-12 (W.D. Pa. 2008) (search for images on hard
drive exceeded scope of consent to search given by defendant based on his belief he was
¶24 Young emphasizes that the agents informed him they were looking only for
“illicit materials,” which he contends are only “objects that are plainly illegal on their
face.” But we must consider the totality of the circumstances surrounding the giving of
consent to determine its scope, see State v. Swanson, 172 Ariz. 579, 583, 838 P.2d 1340,
1344 (App. 1992). And, as the trial court found, it was clear from the entire six-hour
interview that Young knew the agents were investigating him for multiple crimes,
including fraud and Gary’s murder. See id. (scope of consent determined by substance of
officer’s discussion with defendant before search). Therefore, the meaning of “illicit
materials” must be understood in that context. The forms Young signed broadly gave the
consent forms were so broad, we need not decide specifically how the devices should be
categorized.
14
agents the right to search “any property, items, or containers found” and to seize any
items of evidentiary value. Young placed no “explicit limitation on the scope of the
search.” Jimeno, 500 U.S. at 251. Thus, the trial court correctly concluded he “should
reasonably have understood that the items which he gave consent to seize and to search
. . . would potentially be examined for any or all of the various acts of illicit conduct,
which were referenced by law enforcement throughout the course of his interview.”
¶25 We similarly conclude the search and seizure of the digital media did not
fall outside the scope of what an objectively reasonable person would have understood
was covered by Young’s consent under these circumstances. The trial court did not err in
Independent Source
¶26 Young argues the trial court erred when it denied his motion to suppress
digital evidence based on a law enforcement officer’s “material omissions and misleading
statements to the magistrate who issued the search warrant.” But the court never denied
Young’s motion on this ground; rather, it originally suppressed the laptop evidence on
this basis.8 The court later denied the motion to suppress after the state had filed a
8
Young now argues the “digital evidence,” and not just the evidence from the
laptop computer, should be suppressed on this ground. However, in granting his motion,
the trial court stated that it was only suppressing “any materials obtained from a search of
the Defendant’s laptop computer,” finding “that the primary motivation underlying the
search of the Defendant’s computer was largely, if not exclusively, related to a desire to
obtain information related to [Gary’s] homicide.” Because we already have determined
Young’s consent covered a search of the other “digital evidence,” we only address the
court’s ruling on this issue as it pertains to the laptop computer.
15
motion to reconsider its ruling based on the inevitable discovery exception to the
exclusionary rule.
¶27 Under the inevitable discovery doctrine, if the state can establish that the
illegally obtained evidence inevitably would have been acquired by lawful means, the
evidence is admissible. Nix v. Williams, 467 U.S. 431, 444 (1984); accord State v. Lamb,
116 Ariz. 134, 138, 568 P.2d 1032, 1036 (1977). Here, the evidence actually was
acquired later by lawful means: a valid second warrant. Thus, the independent source
doctrine applies to this situation rather than inevitable discovery. See United States v.
Herrold, 962 F.2d 1131, 1140 (3d Cir. 1992) (inevitable discovery applies when evidence
“would have been discovered through lawful means”; independent source applies when
evidence “was in fact discovered lawfully”); accord United States v. Markling, 7 F.3d
1309, 1318 n.1 (7th Cir. 1993); State v. Wagoner, 24 P.3d 306, 311 (N.M. Ct. App.
2001).
¶28 But we can affirm the trial court’s ruling if it is correct for any reason. See
State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984). Young has challenged
the legality of the second warrant only to the extent he argues the evidence obtained from
it is the illegal fruit of the first warrant. See Wong Sun v. United States, 371 U.S. 471,
487-88 (1963). And, as the court correctly found, there was ample evidence discovered
pursuant to the lawful search to which Young had consented, such as the recorded
telephone conversations and loan spreadsheets, that provided probable cause to believe
the second warrant was “obtained on the basis of information from sources independent
16
of the prior illegal [search],” and the evidence obtained pursuant to that warrant is not
“‘fruit of the poison tree’” requiring suppression under the exclusionary rule. State v.
Bolt, 142 Ariz. 260, 265, 689 P.2d 519, 524 (1984); accord Segura v. United States, 468
U.S. 796, 814 (1984); see also State v. Hackman, 189 Ariz. 505, 508, 943 P.2d 865, 868
(App. 1997) (evidence legitimately acquired when obtained not through exploitation of
illegality but rather from independent source). Thus, we find no error in the trial court’s
Shotgun Evidence
¶29 Young argues the trial court erred in denying his motion to preclude
irrelevant other-act evidence prohibited by Rule 404(b), Ariz. R. Evid., that related to a
modified shotgun found in the rented van. Absent an abuse of discretion, we will not
disturb a trial court’s decision to admit evidence. State v. Lopez, 174 Ariz. 131, 139, 847
P.2d 1078, 1086 (1992). The state moved to admit the shotgun on the ground it was part
of the evidence of Young’s “preparation for the homicide.” In doing so, it argued the
evidence was intrinsic to the crime and therefore not subject to Rule 404(b). In the
alternative, it argued the evidence was admissible under the preparation and planning
exception to Rule 404(b). The court found the presence of the shotgun in the van was
relevant because there was evidence connecting it to the conspiracy to kill Gary even
¶30 Although Young complains the trial court’s basis for admitting the
evidence was unclear, we need not decide whether the admission of the evidence was
proper and under what specific ground because, even if error, its admission was harmless.
17
First, the jury heard evidence Young had a gun in his possession when he was arrested in
Florida. Consequently, even if, as Young argues, the evidence was not relevant and only
used to show his character trait of possessing a gun, the evidence was cumulative in that
regard. See State v. Shearer, 164 Ariz. 329, 339-40, 793 P.2d 86, 96-97 (App. 1989)
(finding harmless error when challenged evidence cumulative to, and consistent with,
properly admitted evidence). Second, as stated above in the discussion about the
sufficiency of the evidence, there was substantial other evidence Young committed the
crimes. Therefore, the state established beyond a reasonable doubt the shotgun evidence
“did not contribute to or affect the verdict.” State v. Valverde, 220 Ariz. 582, ¶ 11, 208
P.3d 233, 236 (2009). Young is not entitled to relief on this ground.
Juror Misconduct
¶31 Young argues the trial court erred in denying his motion for a new trial
based on juror misconduct. “A trial court’s decision to grant or deny a new trial based on
alleged jury misconduct generally will not be reversed absent an abuse of discretion.”
State v. Hall, 204 Ariz. 442, ¶ 16, 65 P.3d 90, 95 (2003). Before voir dire, prospective
jurors filled out a jury questionnaire asking, inter alia, whether they or any family
members or close friends had “ever been accused or convicted of a crime,” and if so,
whether the criminal justice system had treated the person fairly.
¶32 After the verdicts, Young learned a juror had answered that question in the
misdemeanor two years before. Rule 24.1(c)(3)(iii), Ariz. R. Crim. P., allows the court to
18
willfully failing to respond fully to a direct question posed during the voir dire
only if he “‘shows actual prejudice or if prejudice may be fairly presumed from the
facts.’” State v. Lehr, 227 Ariz. 140, ¶ 49, 254 P.3d 379, 390 (2011), quoting State v.
Dann, 220 Ariz. 351, ¶ 115, 207 P.3d 604, 624 (2009). “The trial court is in the best
position ‘to determine what effect, if any, alleged misconduct might have had upon other
jurors’ and whether a new trial should be granted.” Brooks v. Zahn, 170 Ariz. 545, 549,
826 P.2d 1171, 1175 (App. 1991), quoting Cota v. Harley Davidson, a Division of AMF,
Inc., 141 Ariz. 7, 10, 684 P.2d 888, 891 (App. 1984).
¶33 In denying the motion, the trial court found that the juror’s incorrect answer
to one of the questions on the questionnaire did not rise to the level of perjury. The court
found no evidence “that the juror’s answer was made with [his] knowledge that it was
false and with [his] intention that it enhance [his] probability of being selected to serve as
a member of the trial jury.” The court further found the incorrect answer had not resulted
in prejudice to Young. And, the court concluded that the existence of the juror’s
conviction, even if it had been known, would not have been a sufficient basis to strike
¶34 Young contends he has shown prejudice because knowledge about the
juror’s history with domestic violence would have affected how he used his peremptory
strikes. But this court has held that is an insufficient basis to prove prejudice entitling a
defendant to a new trial. Catchings v. City of Glendale, 154 Ariz. 420, 422-23, 743 P.2d
400, 402-03 (App. 1987). As long as the jury that decided the case ultimately was fair
19
and impartial, we will not reverse a conviction based on the inability to exercise a
peremptory strike on a particular juror. See State v. Eddington, 226 Ariz. 72, ¶¶ 18-19,
244 P.3d 76, 83 (App. 2010), aff’d, 228 Ariz. 361, 266 P.3d 1057 (2011).
¶35 Young emphasizes that Phillips and Gary had a similar history of domestic
violence and therefore the juror in question “could be considered more likely to believe
that Phillips, the victim of abuse, was getting her due (and by extension, so was her new
boyfriend Young).” But Young’s speculation is insufficient to show the juror was partial
when deciding his case. And had Young been concerned with discovering potential
jurors’ biases or prejudices toward domestic violence victims, he could have inquired
¶36 Young concedes in his reply brief that the argument boils down to “whether
the juror made a mistake on his questionnaire or whether he withheld information.” That
determination is best left to the trial court. See Brooks, 170 Ariz. at 549, 826 P.2d at
1175. We find no abuse of discretion in the court’s denial of Young’s motion for a new
trial.
Mistrial
¶37 Finally, Young argues the trial court erred in denying his motion for a
mistrial based on witness testimony. We review the court’s denial of a motion for a
mistrial for an abuse of discretion. State v. Jones, 197 Ariz. 290, ¶ 32, 4 P.3d 345, 359
(2000). When a witness “unexpectedly volunteers information, the court must decide
whether a remedy short of mistrial will cure the error.” Id. The court has broad
discretion in such circumstances because he or she “is in the best position to determine
20
whether the evidence will actually affect the outcome of the trial.” Id. Moreover, a
mistrial is the most drastic remedy for trial error and is appropriate only when justice will
be otherwise thwarted. State v. Lamar, 205 Ariz. 431, ¶ 40, 72 P.3d 831, 839 (2003).
Young met Andre Mims, a fellow inmate. Mims had provided legal assistance to Young,
and the two also became friendly. In a written statement in June 2006, Mims stated,
“Young told me of his involvement in the car bombing and murder of Gary T[.] and
stated that mother fucker got what he dese[rv]ed, I got it done.” Mims took a polygraph
examination about his written statement, and the examiner found Mims “was attempting
deception regarding his answers.” Mims admitted in his post-test interview that he was
not sure Young had made the statement, “I got it done,” and conceded “he may have been
trying too hard in his efforts to help investigators with the case.” The trial court allowed
Mims to testify, over Young’s objection, but precluded him from using the phrase, “I got
¶39 At trial, in accordance with the trial court’s order, Mims did not testify that
Young told him, “I got it done”; however, he testified that Young “looked [him] in [the]
face, and he said[, ‘]Andre, I blew that fucker up in his car.[’]” Young immediately
moved for mistrial, arguing the testimony was a surprise and violated the court’s order.
The court denied the motion, but granted the parties leave to brief the issue and also
allowed Young to present evidence of Mims’s polygraph examination that showed he had
been untruthful.
21
¶40 The state contends Mims did not violate the trial court’s order and,
therefore, the denial of the motion for a mistrial was proper. Young insists Mims did,
arguing the court’s pretrial preclusion ruling actually precluded “any testimony where
Young supposedly confesses to being responsible for the bombing.” But the plain
language of the court’s ruling makes clear it was precluding only the statement, “I got it
done.” And, in denying the motion for mistrial, the court reiterated its reasons for
precluding the statement “I got it done” and allowing the remainder of Mims’s testimony.
Specifically, the court noted that Mims had conceded the “got it done” wording may not
have been accurate but he had affirmed the rest of his statements. The court also
emphasized that Young was able to cross-examine Mims about the fact he is a convicted
felon testifying in an attempt to get a benefit from the government and that it was
ultimately up to the jury to decide his credibility. The court also noted it had afforded
Young the extraordinary remedy for any error of allowing the polygraph results. The
court found there was no evidence the state knew Mims would make that statement but
that it was not materially different in substance than Mims’s prior statements, and the
court concluded a mistrial was not warranted. We find no abuse of discretion in the
court’s ruling.
Resentencing
¶41 Finally, we address an error apparent from our review of the record. See
State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (addressing
unraised sentencing error found in review of record); cf. State v. Orendain, 188 Ariz. 54,
55, 932 P.2d 1325, 1326 (1997) (recognizing “fundamental nature” of structural error).
22
After the trial court granted Young’s motion to vacate his natural life sentence on the
absence. The court concluded it did not have to conduct a resentencing hearing with
Young present because, by the plain language of the relevant statute, he could be
sentenced to a term of imprisonment only for life with the possibility of release in
twenty-five years. See A.R.S. § 13-1003(D). We note, however, the court retained some
discretion in pronouncing Young’s sentence, as it had the ability to order the sentences be
served concurrently or consecutively to each other. See A.R.S. § 13-711(A). Indeed, the
court reconsidered that decision in its ruling and ultimately reaffirmed the prior judgment
See State v. Davis, 105 Ariz. 498, 502, 467 P.2d 743, 747 (1970) (“‘Where a person
convicted of a criminal offense or offenses is to be resentenced, as was the case here, the
presence of the defendant is as necessary as it was at the time of the original sentence.’”),
quoting Williamson v. United States, 265 F.2d 236, 239 (5th Cir. 1959); see also Ariz. R.
Crim. P. 26.9; State v. Forte, 222 Ariz. 389, ¶ 7, 214 P.3d 1030, 1033 (App. 2009). A
defendant can waive the right to be present at sentencing, see Forte, 222 Ariz. 389, ¶ 12,
214 P.3d at 1034, but when a trial court pronounces sentence in a defendant’s absence
without his waiver, it constitutes structural error. Hays v. Arave, 977 F.2d 475, 482 (9th
Cir. 1992); accord State v. Mann, 188 Ariz. 220, 230, 934 P.2d 784, 794 (1997). Here,
there is no evidence Young waived his right to be present at the resentencing. Thus, the
error was structural, and we need not find actual prejudice. See State v. Garcia-
23
Contreras, 191 Ariz. 144, ¶ 22, 953 P.2d 536, 541 (1998). We thereby vacate Young’s
sentence on the conspiracy conviction and remand the case to the trial court, which is
directed to conduct the resentencing hearing in Young’s presence. See State v. Anderson,
171 Ariz. 34, 36, 827 P.2d 1129, 1131 (1992) (“[T]he proper method of correcting an
illegal sentence is not by minute entry, but in open court with the defendant present.”).
¶43 For the foregoing reasons, Young’s convictions and natural life sentence
are affirmed. As stated, we vacate Young’s sentence on count one, conspiracy to commit
first-degree murder, and remand for resentencing consistent with this decision.
24