State v. Democker ( 2016 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
STEVEN CARROLL DEMOCKER, Appellant.
No. 1 CA-CR 14-0137
FILED 10-11-2016
Appeal from the Superior Court in Yavapai County
No. P1300CR2010-01325
The Honorable Gary E. Donahoe, Judge Retired
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By David A. Simpson
Counsel for Appellee
David Goldberg, Attorney at Law, Fort Collins, CO
By David Goldberg
Counsel for Appellant
STATE v. DEMOCKER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Randall M. Howe joined.
C A T T A N I, Judge:
¶1 Steven Carroll DeMocker appeals his convictions and
sentences for first-degree murder, burglary, fraud, and related charges for
manufacturing fictitious evidence. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND1
¶2 Circumstantial evidence presented at trial established that
DeMocker killed his ex-wife in her Prescott residence on July 2, 2008.
DeMocker and the victim were married in 1982 and had two daughters
together. The couple separated in 2002 or 2003 and divorced on May 28,
2008.
¶3 At the time of the murder, DeMocker was experiencing
financial difficulties. He had approximately $30,000 in monthly expenses,
including a $6,000 spousal support payment, and less than $13,000 in
average net monthly income. He had spent money from retirement
accounts, taken out lines of credit on both of his homes, used credit cards
extensively and borrowed money from his parents.
¶4 In the months before and after the divorce, DeMocker sent the
victim several messages expressing his frustration with her and with his
financial condition. A message sent on June 2, 2008 stated, “It’s a little
exasperating to have settled on an agreement that provides for you as well
as it does and to be facing eight years of writing very large checks on the 1st
of every month on top of spending more years than that paying off the debt
we have now left to me, only to have you continue to berate me as though
you have been mistreated.” And a message sent on June 14, 2008 stated, “I
will not be pushed any further . . . . You have extracted all you will extract
from me. I am in such incredibly worse financial condition than you are
and will be for many years to come. You get to start clean while I dig out
1 On appeal, this court views the evidence in the light most favorable
to sustaining the conviction and resolves all reasonable inferences against
defendant. State v. Karr, 221 Ariz. 319, 320, ¶ 2 (App. 2008).
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of a staggering hole while I’m trying to pay out $400,000 in after-tax dollars
to send our girls to college. My income has dropped by almost half. My
[financial advisor] practice is in pieces. And you got a settlement based on
what is likely to be the biggest year of my career.”
¶5 Approximately one month before the murder, DeMocker
used his laptop to search the internet for information regarding “payment
of life insurance benefits in the case of a homicide,” “tips from a hitman on
how to kill someone,” “how to stage a suicide,” “how to kill and make it
look like suicide,” and “how to make a homicide appear suicide.” The
laptop had a privacy setting that automatically deleted internet search
histories, but after the murder, investigators were able to recover portions
of the search history.
¶6 At 7:36 p.m. on the day of the murder, the victim called her
mother from her home phone. They discussed her divorce, and the victim
indicated she was worried because DeMocker had not made his monthly
spousal-maintenance payment, and she told her mother she was going to
call her lawyer about it the next day. A few moments later, the victim said
“Oh, no,” as if she were surprised and dismayed by something, and the
phone went dead.
¶7 The victim’s mother tried unsuccessfully to call her back, then
called the Yavapai County Sheriff’s Office. A deputy went to the victim’s
house and saw her through a window lying face-down on the floor.
Deputies later entered the home and initially thought the victim had fallen
from a ladder and hit her head because there were no signs of forced entry,
and a bookcase and ladder had tipped over as if she had fallen. But on
closer examination, the deputies began to suspect the scene had been
staged; blood stains on the carpet indicated the victim was moved after she
began bleeding, and the ladder did not have blood on it, suggesting it had
been positioned after she was killed. The Yavapai County Chief Medical
Examiner conducted an autopsy and concluded that the victim’s cause of
death was multiple blunt-force head injuries from a round object shaped
like the head of a golf club.
¶8 Between 5:00 and 5:30 p.m. the night of the murder,
DeMocker told his daughter he was going on a mountain-bike ride. He
subsequently claimed that he arrived at a trailhead at 6:00 or 6:30 p.m.,
planning to ride for two to two and a half hours, even though his purported
route would have kept him on the trail well after sunset. At 9:40 p.m., his
daughter tried to call his cell phone and got no answer, which was unusual
because he generally took his cell phone with him everywhere he went.
Cell phone records later confirmed that DeMocker’s phone was powered
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Decision of the Court
off from 5:36 p.m., to 10:05 p.m.—the time-period during which the victim
was killed.
¶9 After leaving DeMocker a message, his daughter and her
boyfriend went to the grocery store. When they returned to DeMocker’s
residence, he was in the shower and his clothes were in the washing
machine. When he got out of the shower, he told his daughter he was late
because of a flat tire on his bike. He seemed unusually tense and restless,
and his arms and legs had fresh cuts and scratches.
¶10 Deputies searched DeMocker’s residence and took
photographs, which they later noticed showed a set of golf clubs with one
empty golf club cover for a Callaway brand driver. The deputies
subsequently searched the residence again but did not find the empty club
cover.
¶11 After the deputies left, DeMocker told his family he had
found the cover in his girlfriend’s car, and he suggested it could have
“blown in the car from the wind.” DeMocker gave the club cover to his
attorney, who provided it to sheriff’s investigators after they obtained a
warrant to search his office. Sales records indicated DeMocker had
purchased a specially ordered Callaway driver with a matching cover in
2003, but the club was missing.
¶12 Shortly after the murder, deputies searched the area around
the victim’s house and found freshly-made footprints that did not match
her shoes but were consistent with the treads on shoes DeMocker wore and
that were of a shoe model that only sold about 8,900 pairs nationwide.
¶13 Investigators also learned that DeMocker purchased a
motorcycle in July or August 2008, and in August 2008, he had four books
shipped to his office containing information about “how to change your
identity” and “how to disappear.” DeMocker asked his daughter to buy
him a GPS navigation unit, several hydration packs, and multiple “pay-as-
you-go” cell phones. There was a motorcycle in the garage of DeMocker’s
Scottsdale residence with maps, a GPS device, and $15,000 in cash inside
the motorcycle’s saddlebags.
¶14 After DeMocker was arrested, he asked his youngest
daughter to visit him in jail and to bring a pen and paper. When she
arrived, DeMocker told her that someone in jail had told him how the
victim died, and DeMocker told his daughter to write down verbatim a
story detailing that two men and a woman were sent to kill the victim and
a man who lived in her guest house because of a prescription drug deal
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Decision of the Court
involving the man in the guest house. DeMocker told his daughter to
anonymously email the story to his defense attorney and to the prosecutor
because “it would be more credible coming from someone else,” and
because he thought his attorney would not believe that somebody in the jail
had told him the story.
¶15 Investigators subsequently interviewed DeMocker about the
email, and he told them he did not know about it. He claimed, however, to
have heard a similar account of the murder through an air vent in his cell.
¶16 In July 2010, during DeMocker’s first trial on charges of
premeditated murder and burglary, the Yavapai County Attorney’s Office
(“YCAO”) learned that the victim’s life insurance proceeds had been used
to pay DeMocker’s attorneys, even though the insurance company had
distributed the policy proceeds to the victim’s trust on the condition that
DeMocker disclaim any interest in them, and in violation of the terms of the
trust. YCAO also learned that DeMocker had manufactured the
anonymous email blaming third parties for the murder and had persuaded
his daughter to send it to YCAO and to DeMocker’s attorney, who had
successfully argued for its admission in evidence on the basis that it
contained information that could only have come from someone familiar
with the crime and was thus exculpatory. YCAO thereafter filed a bar
complaint against defense counsel based on counsel’s alleged involvement
with the distribution of the life insurance proceeds, and subsequently filed
fraud charges against DeMocker relating to his fabrication and use of the
anonymous email, and his fabrication of the “voice in the vent” statement.
¶17 Defense counsel filed motions seeking dismissal with
prejudice and/or disqualification of YCAO for interfering with DeMocker’s
right to counsel, in part because of the YCAO bar complaint and the bar
complaint filed by the Yavapai County Sheriff’s Office against defense
counsel. Addressing issues relating to the payment of counsel using
insurance proceeds, the superior court held that the State would be
permitted to introduce evidence “as to the ultimate disposition of the
insurance proceeds,” but that the State would not be permitted to call
DeMocker’s counsel as witnesses or offer evidence or argument that the
distribution from the trust to counsel was unlawful.
¶18 Following the denial of DeMocker’s motions to dismiss,
defense counsel moved to withdraw and for a mistrial, arguing they could
not continue to represent DeMocker because of the accusations against
them relating to the insurance proceeds, and because of their involvement
in seeking to admit the anonymously-sent email evidence. The court
denied the motions to withdraw, but on review to the Arizona Supreme
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STATE v. DEMOCKER
Decision of the Court
Court, the lawyers were permitted to withdraw because “the client ha[d]
used the lawyer[s’] services to perpetrate a crime or fraud.” Newly
appointed defense counsel then successfully moved for a mistrial on the
basis that they could not be prepared in time to go forward with the trial in
front of the impaneled jury.
¶19 The grand jury then indicted DeMocker on consolidated
charges of first-degree murder, burglary, a scheme to defraud the victim’s
testamentary trust, fraud, and other charges relating to the fabricated
anonymous email and fictitious report of a “voice in the vent.” The court
dismissed the previously-filed murder and burglary case.
¶20 Before the second trial began, DeMocker moved to dismiss
the charges based on alleged prosecutorial misconduct, or alternatively, to
disqualify YCAO, asserting that “the state illegally viewed and printed
sealed ex parte pleadings.” The documents in question generally related to
DeMocker’s requests for money to have experts for the first trial, and were
apparently made available through administrative inadvertence on the part
of the superior court. After conducting an evidentiary hearing, the court
issued a 57-page minute entry denying the motion, finding that although
the State acknowledged its employees viewed and/or printed the
documents, DeMocker had not established any resulting prejudice.
DeMocker sought special action relief challenging the ruling, and this court
accepted jurisdiction but denied relief.
¶21 DeMocker also filed a motion to sever the trial on the murder
and burglary charges from trial on the fraud charges, but the court denied
the motion. At the close of the State’s case, the court granted judgment of
acquittal on the count alleging forgery of the anonymous email, and, with
the agreement of the parties, dismissed with prejudice the fraud/forgery
charges relating to the “voice in the vent” statement and the anonymous
email. The jury convicted DeMocker of the remaining counts, including
first-degree murder, first-degree burglary, fraudulent schemes and artifices
(obtaining money from the testamentary trust), fraudulent schemes and
artifices (creating the anonymous email and “voice in the vent” stories),
conspiracy to commit fraudulent schemes, tampering with physical
evidence, and contributing to the delinquency of a minor (all relating to the
anonymous email).
¶22 Before sentencing, DeMocker filed a motion for new trial,
arguing that the convictions were contrary to law and against the weight of
the evidence. DeMocker later supplemented the motion, arguing that a
Yavapai County Jail commander had improperly questioned him after the
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STATE v. DEMOCKER
Decision of the Court
verdict without his counsel present, thereby violating his right to counsel.
After hearing argument, the court denied the motion.
¶23 The court sentenced DeMocker to natural life on the murder
conviction and to an additional 10 years total on the remaining counts, and
ordered restitution of $700,000 to be paid to the victim’s testamentary trust.
DeMocker timely appealed.
DISCUSSION
Motion to Suppress.
¶24 DeMocker argues that the superior court abused its discretion
by denying his motion to suppress evidence seized from his house, office,
and vehicle the day after the murder. He asserts that the affidavit
supporting the search warrant allegedly contained false statements and had
no statement showing probable cause to believe that these locations
contained evidence relevant to the murder. But the detective who obtained
the warrant testified regarding the affidavit at a hearing conducted
pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and the superior court
found that the affidavit had no “significant substantive misstatements . . .
based on the information known to the affiant,” and that officers relied on
the warrant in good faith.
¶25 Under Franks, “[a] trial court must suppress evidence seized
pursuant to a warrant if a defendant proves, by a preponderance of the
evidence, that the affiant knowingly, intentionally, or with reckless
disregard for the truth made a false statement to obtain the warrant and that
the false statement was necessary to a finding of probable cause.” State v.
Nordstrom, 200 Ariz. 229, 245, ¶ 42 (2001), abrogated on other grounds by State
v. Ferrero, 229 Ariz. 239 (2012). Innocent or negligent errors in an affidavit
will not satisfy the first prong of the Franks test; proof is required that the
affiant did not believe, or entertained serious doubts about, the truth of the
avowals. State v. Carter, 145 Ariz. 101, 109 (1985); see also State v. Poland, 132
Ariz. 269, 279 (1982) (“serious doubts” can be shown by “obvious reasons
to doubt the veracity of the informant or the accuracy of his reports”).
¶26 Our review on appeal is limited to the evidence considered by
the superior court at the suppression hearing, State v. Blackmore, 186 Ariz.
630, 631 (1996), and we view the evidence in the light most favorable to
sustaining the superior court’s ruling. State v. Hyde, 186 Ariz. 252, 265
(1996). “A trial court’s finding on whether the affiant deliberately included
misstatements of law or excluded material facts is a factual determination,
upheld unless clearly erroneous.” State v. Buccini, 167 Ariz. 550, 554 (1991)
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Decision of the Court
(citations and internal quotation marks omitted). But the superior court’s
finding as to whether a redrafted search warrant affidavit is sufficient to
establish probable cause is reviewed de novo. See id. at 555.
¶27 DeMocker’s Franks claim fails because the evidence at the
hearing did not show either that the detective who provided the affidavit
doubted the truth of the purported misstatements, or that the
misstatements were necessary to the finding of probable cause. DeMocker
argues the affidavit (1) incorrectly described the private bike trail behind
the victim’s residence as being a public trail; (2) indicated that DeMocker
had yet to transfer $190,000 to his ex-wife, when in fact the transfer had
already occurred; (3) misstated when DeMocker left for his bike ride and
the duration of the ride, making it appear hours longer than it was; (4)
misquoted DeMocker’s daughter and her boyfriend as saying that after
DeMocker returned from his bike ride, he did not eat as much as usual; (5)
misrepresented where DeMocker said he parked his car and rode his bike,
suggesting that he was riding nearer to the victim’s house than his actual
route; and (6) compounded the misrepresentation by indicating that he had
not found any tracks that supported DeMocker’s claims.
¶28 The detective testified that he relied on what he had heard
directly or had been told by another law enforcement officer, and that he
believed these statements were true at the time he signed the affidavit.
Based on that testimony, the superior court did not abuse its discretion by
concluding that DeMocker did not satisfy the first Franks factor. Moreover,
the challenged statements were not essential to establish probable cause;
the central undisputed facts remained that DeMocker was on a solitary
hours-long mountain-bike ride the night of the murder, fresh bike tracks
were discovered on a trail near the victim’s residence, DeMocker had fresh
scratches and abrasions that night, and he went to his office after returning
from the bike ride. Additionally, DeMocker had recently been involved in
a lengthy divorce that resulted in him paying the victim $190,000. Thus, the
record supports the judge’s finding that there were no “significant
substantive misstatements in the affidavit based on the information known
to the affiant,” and there was sufficient probable cause to search
DeMocker’s residence, office, and car for blood, weapons, clothes,
computer and phone records, and other items of evidentiary value.
Double Jeopardy.
¶29 DeMocker argues that the second prosecution for murder and
burglary after the mistrial violated his rights to protection against double
jeopardy, counsel of choice, and due process, asserting that retrial was
barred because the State intentionally engaged in misconduct that caused
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Decision of the Court
the mistrial. We review a court’s denial of a motion to dismiss for abuse of
discretion, but we examine de novo a claim that retrial is barred by double
jeopardy. State v. Moody, 208 Ariz. 424, 437, 448, ¶¶ 18, 75 (2004).
¶30 Under the federal constitution, the circumstances under
which a defendant may invoke the double jeopardy bar “are limited to
those cases in which the conduct giving rise to the successful motion for a
mistrial was intended to provoke the defendant into moving for a mistrial.”
Oregon v. Kennedy, 456 U.S. 667, 679 (1982) (plurality opinion). The Arizona
Constitution’s double jeopardy provision bars a retrial when the mistrial is
caused by “intentional conduct which 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.” Pool
v. Superior Court, 139 Ariz. 98, 108–09 (1984).
¶31 The record does not support DeMocker’s double jeopardy
claim; it was DeMocker’s conduct in fabricating the anonymous email, not
any alleged misconduct by the prosecutor, that prompted the Arizona
Supreme Court to allow counsel to withdraw. The subsequent mistrial was
requested by new defense counsel, and was granted because of new
counsel’s inability to go forward with trial before the same jury.2
¶32 The record similarly does not support DeMocker’s claim that
the State intentionally attempted to create a conflict of interest or otherwise
engaged in prosecutorial misconduct. In superior court, DeMocker
asserted misconduct by the prosecutor for (1) opening a criminal
investigation into the victim’s life insurance benefits in the middle of the
first trial, (2) filing charges relating to DeMocker’s fabrication of evidence,
(3) seeking to introduce evidence at the first trial that the victim’s life
insurance benefits were used to pay DeMocker’s attorneys’ fees, (4)
identifying defense counsel as a witness on those issues, (5) seeking to
introduce evidence at the first trial that DeMocker fabricated the
anonymous email, (6) filing additional charges against DeMocker during
the first trial arising from his fabrication of the “voice in the vent” statement
and the anonymous email, and (7) filing bar complaints against defense
counsel relating to their involvement in those issues. But the record shows
that the State discovered this evidence midtrial and reacted by charging
2 The record does not support DeMocker’s claim that the State
conceded its conduct had created a conflict of interest that caused the
mistrial; the prosecutor simply indicated he had no objection to defense
counsel seeking a mistrial, and deferred until a later date any response to a
motion to dismiss with prejudice that defense counsel might file.
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STATE v. DEMOCKER
Decision of the Court
(within days of its discovery that DeMocker had fabricated evidence)
additional crimes related to that evidence. DeMocker’s conduct created a
conflict for his own attorneys, and the prosecutor repeatedly avowed that
the State was not seeking to cause a mistrial by filing bar complaints, but
rather was attempting to fulfill its ethical obligation to ensure that
DeMocker had a fair trial with conflict-free counsel.
¶33 The superior court was in the best position to ascertain
whether the prosecutor acted in bad faith, and after summarily denying
DeMocker’s first motion to dismiss, the court denied the second motion,
expressly finding that the prosecutor did not intentionally seek a mistrial.
The superior court’s view of the prosecutor’s motives and credibility is
entitled to deference, see State v. Martinez, 230 Ariz. 208, 215, ¶¶ 30–31
(2012), and the court did not abuse its discretion by denying DeMocker’s
motions to dismiss.3 And because DeMocker’s prosecutorial misconduct
claim is unavailing, his double jeopardy claim premised on that alleged
misconduct likewise fails.
Severance.
¶34 DeMocker argues that the superior court abused its discretion
by denying severance of the murder and burglary charges from the other
charges. He asserts that the conduct giving rise to the other charges was
irrelevant to the murder, was not admissible under Arizona Rule of
Evidence 404(b), and was highly prejudicial. But the superior court
properly found that evidence of the other charges would be admissible in
the murder trial, and that accordingly, DeMocker would not be prejudiced
by a consolidated trial.
¶35 We review a ruling on a motion to sever for an abuse of
discretion. See State v. Prince, 204 Ariz. 156, 159, ¶ 13 (2003). The court must
grant a motion to sever charges if “necessary to promote a fair
determination of the guilt or innocence of any defendant of any offense.”
Ariz. R. Crim. Pro. 13.4(a). “In deciding whether to grant a severance the
court must balance the possible prejudice to the defendant against interests
of judicial economy.” State v. Cruz, 137 Ariz. 541, 544 (1983) (citations
omitted). “When a defendant challenges a denial of severance on appeal,
he must demonstrate compelling prejudice against which the trial court was
3 DeMocker’s summary listing of other alleged instances of
prosecutorial misconduct is insufficient for appellate review. See Moody,
208 Ariz. at 452 n.9, ¶ 101 (failure to present “significant arguments,
supported by authority” in opening brief waives issue).
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unable to protect.” Prince, 204 Ariz. at 159, ¶ 13 (citation and internal
quotation marks omitted).
¶36 DeMocker has not established that the court abused its
discretion by denying the requested severance. Rule 13.3(a)(2) of the
Arizona Rules of Criminal Procedure provides that joinder is permissible if
the offenses “[a]re based on the same conduct or are otherwise connected
together in their commission.” Offenses are “otherwise connected together
in their commission” when “evidence of the two crimes was so intertwined
and related that much the same evidence was relevant to and would prove
both, and the crimes themselves arose out of a series of connected acts.”
State v. Prion, 203 Ariz. 157, 162, ¶ 32 (2002).
¶37 DeMocker’s fabrications of the detailed anonymous email
and the similar “voice in the vent” statement were relevant because they
demonstrated DeMocker’s knowledge of the facts and circumstances of the
murder, as acknowledged by defense counsel in initially seeking to admit
the email in evidence. Thus, evidence of the fabrications related to the
murder and burglary charges, and did not necessitate severance.
¶38 The fact that DeMocker obtained the benefit of the life
insurance proceeds was significant circumstantial evidence of his intent
and motive to murder the victim. A month before the murder, DeMocker
conducted a computer search on payment of life insurance in the event of a
homicide, and two months after the murder, DeMocker filed a claim for life
insurance benefits.4 Even after he formally disclaimed any interest in the
benefits, DeMocker attempted to assert control over them, telling his
daughter that he had “been paying the payments for a long time and he had
plans for that money and this came up, and now we need it for my defense.”
Although the victim had set up a trust to receive life insurance benefits to
benefit her daughters, DeMocker obtained the insurance proceeds through
a series of bank transfers that culminated in payment of $700,000 to his
original attorneys for defending him on the murder charge.
¶39 Under these circumstances, evidence that DeMocker
ultimately obtained the benefit of the victim’s life insurance proceeds
would have been admissible in a separate murder trial to demonstrate
premeditation. See State v. Mincey, 130 Ariz. 389, 406 (1981) (“[I]n resolving
the issue of premeditation and deliberation [in a first degree murder case]
the jury is authorized to take into consideration the conduct of the
4 The record does not support DeMocker’s argument that it was
undisputed that because of the divorce, he had no right to the proceeds of
the victim’s life insurance.
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defendant, both before and after, as well as at the time of the homicide, and
all attending circumstances.”) (citation omitted). Similarly, evidence that
DeMocker murdered the victim would have been admissible in a separate
trial on the charge alleging that he defrauded the trust, because it was
relevant to the series of misrepresentations he made to obtain the funds to
pay his attorneys.
¶40 Because the evidence would have been cross-admissible in
separate trials, DeMocker has not shown the prejudice necessary for
reversal. Moreover, a denial of severance does not generally prejudice a
defendant when the jury is instructed to consider each offense separately
and is advised that each offense must be proven beyond a reasonable doubt.
See State v. Hausner, 230 Ariz. 60, 75, ¶ 48 (2012). Here, the court instructed
the jury to that effect, and severance was not necessary to fairly determine
DeMocker’s guilt or innocence on any of the charges. Thus, the court did
not abuse its discretion by denying DeMocker’s severance request.
Admission of Other-Act Evidence.
¶41 DeMocker argues that the superior court abused its discretion
by admitting unfairly prejudicial other-act evidence that he (1) had
simultaneous extramarital affairs with three women, (2) conducted
computer searches involving staged homicides before the murder, (3)
exchanged emails and texts with the victim for a year arguing over their
finances and the pending divorce settlement, and (4) made plans to flee
before his arrest.
¶42 Under Rule 404(b), evidence of other crimes, wrongs, or acts
is generally inadmissible “to prove the character of a person in order to
show action in conformity therewith,” but may be admitted for other
purposes, such as “proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Evidence
otherwise admissible under Rule 404(b) may be excluded under Rule 403 if
its probative value is substantially outweighed by the danger of unfair
prejudice. “Evidence is unfairly prejudicial if it has an undue tendency to
suggest decision on an improper basis, commonly, though not necessarily,
an emotional one.” State v. Mills, 196 Ariz. 269, 275, ¶ 28 (App. 1999)
(citation and internal quotation marks omitted).
¶43 We ordinarily review the superior court’s decision to admit
evidence under Rule 404(b) for an abuse of discretion. State v. Forde, 233
Ariz. 543, 558–59, ¶ 42 (2014). But because DeMocker expressly withdrew
his Rule 404(b) objection to evidence of his extramarital affairs with two
witnesses before the first trial, and did not argue that his exchange of emails
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and texts with the victim should be excluded under Rule 404(b), we review
these claims for fundamental error only. See State v. Henderson, 210 Ariz.
561, 567, ¶ 19 (2005).
¶44 The court did not err, much less fundamentally err, by
allowing two witnesses to testify regarding extramarital affairs with
DeMocker. The witnesses testified regarding a variety of issues, and
DeMocker conceded that their testimony regarding extramarital affairs was
relevant to properly evaluate the basis of their knowledge, motivation, and
credibility. Thus, the testimony was not unfairly prejudicial. Nor did the
court fundamentally err by admitting a brief reference by one of these
witnesses to DeMocker’s affair with a third woman, given the cumulative
nature of such evidence and because it was relevant to the witness’s
credibility regarding why she considered ending her relationship with
DeMocker.
¶45 Nor did the court err by admitting evidence of texts and
emails between DeMocker and the victim arguing over finances in the year
before the murder. This evidence was probative of DeMocker’s motive for
the murder and his premeditation, and was not unfairly prejudicial. See
State v. Hyde, 186 Ariz. 252, 276–77 (1996) (holding that evidence that the
defendant had been in arrears for several months in his child support
obligations was properly admitted to establish a financial motive for
murders); State v. Jeffers, 135 Ariz. 404, 418 (1983) (“We have long held that
where the existence of premeditation is in issue, evidence of previous
quarrels or difficulties between the accused and the victim is admissible.”).
¶46 Likewise, the court did not abuse its discretion by admitting
evidence that (1) before the murder, DeMocker had conducted computer
searches on staged homicides and on payment of life insurance proceeds in
the event of a homicide, and (2) he had made plans to flee, including
ordering books on how to hide an identity, obtaining a replacement
passport (after his was seized on execution of a search warrant), and
equipping a motorcycle with camping gear, a significant amount of cash,
and a GPS map of Mexico. The computer searches were probative of intent
and premeditation, and the evidence was not unfairly prejudicial; any
explanation that DeMocker allegedly conducted the computer searches for
research on a book he wanted to write or his reasons for planning to flee
went to the weight of the evidence, not its admissibility. See Jeffers, 135 Ariz.
at 415 (evidence of attempted escape from jail was relevant to show
consciousness of guilt, even though there may have been other explanations
for the attempted escape).
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Denial of Motions to Preclude Shoe-Print and Bike-Tire-Track
Experts.
¶47 DeMocker argues that the court abused its discretion under
Arizona Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), by denying his motions to preclude evidence and
thereafter admitting “unscientific” expert opinion testimony on
comparison of shoe prints and bicycle-tire tracks.5 We review the superior
court’s decision to admit expert testimony for an abuse of discretion. State
v. Boyston, 231 Ariz. 539, 544, ¶ 14 (2013).
¶48 DeMocker argues that the experts’ testimony that the
impressions near the crime scene were similar to the pattern on DeMocker’s
bike tires and the soles of shoes he had purchased two years earlier was not
helpful to assist the jury under Rule 702(a). DeMocker also asserts that the
photographs of the impressions that the experts used to make comparisons
did not have sufficient detail and were thus inadmissible under Rule 702(b),
and that the methods the experts used were unreliable because they were
purely subjective and therefore failed to satisfy Rule 702(c) and (d).
¶49 After conducting a pretrial evidentiary hearing, the superior
court concluded that expert testimony by DPS examiner John Hoang on tire
tracks and by FBI forensic examiner Erik Gilkerson on shoe-print
comparison was admissible. The court found that “there is a base level of
scientific theory and practical effect in comparing one item to another”; “the
principles and methods are appropriate”; and “the principles and
methods” were sufficiently reliable to allow application of the described
methodology to particular facts to be replicated or contested by other
scientists.
¶50 A witness who is “qualified as an expert by knowledge, skill,
experience, training, or education” may offer opinion testimony if: “(a) the
expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue; (b)
the testimony is based on sufficient facts or data; (c) the testimony is the
product of reliable principles and methods; and (d) the expert has reliably
applied the principles and methods to the facts of the case.” Ariz. R. Evid.
702. In Arizona, shoe-print comparisons have been deemed “quite beyond
common experience,” and a proper subject on which expert testimony can
5 The court applied Daubert in resolving the issue. The experts
testified after the effective date of revised Rule 702 (January 1, 2012), and
accordingly the Daubert-type standard applied to this testimony. State v.
Perez, 233 Ariz. 38, 42, ¶ 16 (App. 2013).
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STATE v. DEMOCKER
Decision of the Court
assist the jury. State v. Runningeagle, 176 Ariz. 59, 69 (1993). Moreover,
federal courts applying the Daubert standard have long admitted this type
of testimony. See United States v. Smith, 697 F.3d 625, 634–35 (7th Cir. 2012)
(and cases cited therein). The same reasoning applies to expert testimony
on bike-tire-track comparisons, and thus the superior court properly found
that expert testimony regarding shoe-print and bike-tire-track comparisons
was appropriate.
¶51 The experts testified both at the pretrial hearing and at trial
that photographs of the impressions at the crime scene had sufficient detail
to draw the limited conclusions to which they testified, thus satisfying Rule
702(b). See State v. Murray, 184 Ariz. 9, 30 (1995) (holding that because
“[t]here is more than one way in which footprints can be preserved and
analyzed,” a detective’s failure to follow FBI procedures went to the weight
of the evidence and not its admissibility). The experts testified that they
used standard methods generally accepted in the fields in which they
practice; that these methods have been the subject of peer-reviewed journal
articles; that training in these methods is provided by their own agencies
and under the purview of the International Association for Identification;
that testing in the methods is administered annually by Collaborative
Testing Service, Inc.; and that the experts’ application of these methods to
the facts of each case was reviewed and their findings confirmed by another
examiner. The evidence thus supported the superior court’s finding that
the principles and methods of shoe-print and tire-track comparison were
reliable, and the expert opinions admissible. See Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 148–49, 153 (1999) (holding that the gatekeeper
function applies to all expert testimony, not just testimony based on science,
and the court has broad latitude in determining which factors are
reasonable measures of reliability in a particular case).
¶52 DeMocker also takes issue with specific testimony from
Deputy Sheriff Winslow that the pattern he was tracking near the crime
scene was similar to the pattern on DeMocker’s bike tire, and testimony that
another detective confirmed that the victim’s shoes had three N’s or three
Z’s on the sole, similar to the pattern the detective had been tracking near
the crime scene.
¶53 Before the first trial, the court precluded the tracking experts
from testifying that the shoe prints and tire tracks were similar to those left
by DeMocker and the victim. But DeMocker did not raise any objection to
the cited testimony at the time it was elicited years later during the second
trial before a different judge. When Scott Mascher, another tracking expert,
was testifying, defense counsel stated that the superior court had ruled the
tracking experts could not testify that the prints were a match, but could say
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STATE v. DEMOCKER
Decision of the Court
they were similar. Under these circumstances, this court reviews only for
fundamental error. See State v. Lichon, 163 Ariz. 186, 189 (App. 1989)
(holding that a motion in limine failed to preserve issue for appeal in part
because the judge who tried the case was not the same judge who granted
the motion). And here, the statements from the tracking experts did not
result in error, much less fundamental error, because they were admissible
under Rule 702.
Preclusion of DeMocker’s Estates and Trusts Expert.
¶54 DeMocker argues that the court violated his due process right
to present a complete defense to the fraud schemes charge by precluding
his proposed expert witness on trusts and estates. We review a court’s
decision to preclude expert testimony for an abuse of discretion. Boyston,
231 Ariz. at 544, ¶ 14.
¶55 The State alleged that pursuant to a scheme to defraud,
DeMocker knowingly obtained a benefit (payment of his attorneys’ fees)
from the victim’s trust by means of fraudulent pretenses,
misrepresentations, or material omissions. Defense counsel proffered an
estates and trusts attorney to (1) testify that a clause in the victim’s trust
authorizing the trustee to distribute assets for “the health, maintenance,
support and education” of the victim’s daughters (the beneficiaries) before
they reached the age of 25 years old “is standard language in a trust” and
“a term of art,” and (2) explain “how that [type of term] gets in the trust,
why that’s in the trust, what that means,” and that “he advises his clients
when drafting trusts that . . . that standard . . . is a very wide-open standard
. . . [t]hat it allows great discretion to the trustee.” Defense counsel also
offered the expert to testify that “it was his belief and his understanding,
from what he reviewed, that everybody involved acted and relied upon the
advice of attorneys.”
¶56 The court precluded the testimony, reasoning that witnesses
had already testified that they acted on advice of attorneys, that testimony
from an expert that the witnesses did so would constitute argument, and
that testimony as to the scope of the trustee’s discretion would invade the
province of the jury to interpret the facts. The court thereafter provided the
jury with detailed instructions on the law governing trusts, as relevant to
the fraudulent schemes charge.6
6 After describing at length what the trust authorized, a trustee’s
fiduciary obligations, and the limits on the trustee’s discretion, the court
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STATE v. DEMOCKER
Decision of the Court
¶57 The court did not abuse its discretion by precluding the
proposed testimony. As noted previously, an expert may testify in the form
of an opinion or otherwise in pertinent part if the expert’s “specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue.” Ariz. R. Evid. 702(a). But an expert is not
permitted to testify to legal conclusions. See Webb v. Omni Block, Inc., 216
Ariz. 349, 354–55, ¶¶ 17–20 (App. 2007) (holding that an expert’s opinion
apportioning percentages of fault to the parties and non-parties
“constituted inadmissible legal conclusions under Rule 704 because he
thereby told the jury how to decide the case.”). Here, the proposed
testimony would have been a legal conclusion that the trust clause “allows
great discretion to the trustee.” See Webb, 216 Ariz. at 354, ¶¶ 17–20 (App.
2007). Thus, the testimony would have been improper. Nor did the court
abuse its discretion by precluding the expert from testifying about what the
clause “means,” which was a mixed question of fact and law on which the
expert’s opinion was superfluous.
¶58 Finally, the court appropriately precluded the expert from
testifying that he advises his clients that the standard is “a very wide-open
standard” that “allows great discretion to the trustee.” First, there was no
evidence regarding the trust attorney’s specific advice to DeMocker or his
daughter. Instead, the only evidence to that effect was a general statement
by DeMocker in a jail call in which he stated that withdrawing money from
the trust for his defense “is a completely legal and appropriate way that the
attorneys have constructed,” and his daughter’s testimony that she had
been told by an attorney representing her as personal representative of the
estate that the trust money was hers to do with as she felt appropriate. And
any testimony by DeMocker’s expert restating DeMocker’s statement or
that of his daughter would have been cumulative and/or a comment on the
evidence. Accordingly, the superior court did not abuse its discretion by
precluding this testimony.
¶59 Nor did the court deprive DeMocker of his right to present a
defense by precluding this expert witness. Although “the Constitution
instructed the jury: “In deciding whether the [victim’s trust] was
defrauded, one of the issues you must decide is whether the provisions of
paragraph 6.2 authorized the two distributions of all the trust assets to [the
victim’s daughters]. Whether the trustee abused her discretion and/or
fiduciary duty does not in and of itself constitute a fraud on the trust as it
relates to [the fraudulent schemes count]. The State must still prove beyond
a reasonable doubt all the elements of fraudulent schemes and artifices as
defined for you with respect to [that count].”
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STATE v. DEMOCKER
Decision of the Court
guarantees criminal defendants a meaningful opportunity to present a
complete defense,” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citation and
internal quotation marks omitted), a defendant’s right to present evidence
is subject to restriction by application of evidentiary rules that “are not
arbitrary or disproportionate to the purposes they are designed to serve.”
United States v. Scheffer, 523 U.S. 303, 308 (1998) (citation and internal
quotation marks omitted). A rule of evidence is “unconstitutionally
arbitrary or disproportionate only where it has infringed upon a weighty
interest of the accused.” Id. DeMocker has not shown that the superior
court’s ruling precluding this expert witness circumvented this mandate.
Failure to Give Willits Instruction.
¶60 DeMocker argues that the court erred by not giving an
instruction under State v. Willits, 96 Ariz. 184 (1964), based on the State’s
failure to adequately preserve bike-tire tracks and shoe-print evidence and
a carpet fragment purportedly showing a bloody handprint. Prior to the
first trial, the judge concluded that a Willits instruction was appropriate
based on the State’s failure to adequately preserve shoe-print evidence, and
might be appropriate based on the bike-tire track evidence, but the court
reserved the right to reconsider the issue after the close of evidence and
during settling of jury instructions. We ordinarily review a superior court’s
refusal to give a Willits instruction for abuse of discretion. State v.
Fulminante, 193 Ariz. 485, 503, ¶ 62 (1999). But because DeMocker did not
raise the issue at the second trial, we review for fundamental error only. See
Lichon, 163 Ariz. at 189.
¶61 A defendant is entitled to a Willits instruction upon a showing
that “(1) the state failed to preserve material and reasonably accessible
evidence that could have had a tendency to exonerate the accused, and (2)
there was resulting prejudice.” State v. Glissendorf, 235 Ariz. 147, 150, ¶ 8
(2014) (citation omitted). The court did not fundamentally err by failing to
give a Willits instruction, in light of the evidence demonstrating that the
bike-tire tracks and shoe-print evidence were adequately preserved for the
State’s experts to offer comparative analysis, and it is not clear that what
police viewed at most as a bloody “hand swipe” on the carpet would have
yielded any evidence having a tendency to exonerate DeMocker. A
defendant is not entitled to a Willits instruction in a case like this, “merely
because a more exhaustive investigation could have been made.” Murray,
184 Ariz. at 33; see also State v. Willcoxson, 156 Ariz. 343, 346 (App. 1987)
(noting that “failure to pursue every lead or gather every conceivable bit of
physical evidence” does not require Willits instruction). Nor has DeMocker
shown resulting prejudice as a result of any error in failing to give the Willits
18
STATE v. DEMOCKER
Decision of the Court
instruction at the second trial. Accordingly, the court did not commit
fundamental error by failing to sua sponte give a Willits instruction.
Sufficiency of the Evidence of Murder and Burglary.
¶62 DeMocker argues that the evidence was insufficient to
support his convictions for burglary and murder. We review de novo the
denial of a motion for judgment of acquittal and the sufficiency of the
evidence to support a conviction. State v. West, 226 Ariz. 559, 562, ¶ 15
(2011). We view the facts in the light most favorable to upholding the jury’s
verdict of guilt, and resolve all conflicts in the evidence against the
defendant. State v. Girdler, 138 Ariz. 482, 488 (1983). We leave credibility
determinations to the jury. State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App.
2004).
¶63 “A conviction may be sustained on circumstantial evidence
alone,” State v. Green, 111 Ariz. 444, 446 (1975), and the substantial
circumstantial evidence detailed above supported the convictions. In the
month before the murder, DeMocker performed computer searches
inquiring about staged suicides and collecting life insurance proceeds after
a homicide. He spent considerably more money than he earned, and he
repeatedly argued with the victim over money, including the $6,000 in
monthly spousal maintenance he had failed to pay the day before the
murder. And he maintained a $750,000 life insurance policy on the victim,
listing himself as the primary beneficiary.
¶64 On the evening of the murder, DeMocker was on a solitary
bike ride (and uncharacteristically not reachable by phone) for more than
four hours. Bike-tire tracks and shoe prints made that evening linked him
to the crime scene, and the cause of the victim’s death was consistent with
being struck by an item (golf club) DeMocker had purchased but that had
disappeared. And there was evidence that after the crime, DeMocker made
elaborate plans to flee. Accordingly, there was substantial evidence from
which a jury could convict DeMocker of murder and burglary.
Denial of Motion for New Trial.
¶65 DeMocker argues that the superior court abused its discretion
by denying his motion for new trial. The motion (1) renewed his request to
dismiss the case or disqualify YCAO based on the State’s alleged
misconduct in viewing ex parte, sealed documents, and (2) argued that the
alleged misconduct, coupled with the post-conviction misconduct of the jail
commander who spoke with DeMocker without an attorney present,
required a new trial with prosecution by a different agency. We review the
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STATE v. DEMOCKER
Decision of the Court
denial of a motion for new trial for abuse of discretion. See State v. Larin,
233 Ariz. 202, 208, ¶ 14 (App. 2013).
¶66 DeMocker asserts that the cited conduct gave rise to an
“appearance of impropriety” warranting disqualification of counsel under
Alexander v. Superior Court, 141 Ariz. 157 (1984). In Alexander, the Arizona
Supreme Court identified the following factors to be considered in
addressing a motion for disqualification based an “appearance of
impropriety”: (1) whether the motion to disqualify was made for purposes
of harassment; (2) whether the party seeking disqualification will be
damaged if the motion is not granted; (3) whether there are other
alternatives, or whether the proposed solution is the least damaging
alternative under the circumstances; and (4) whether the possibility of
public suspicion of impropriety outweighs any benefits that might accrue
due to continued representation. Id. at 165. The burden is on the moving
party to show sufficient reason for the disqualification, and “whenever
possible the courts should endeavor to reach a solution that is least
burdensome upon the client or clients.” Id. at 161. Moreover, Alexander
further cautioned that “[o]nly in extreme circumstances” should the
opposing party be allowed to interfere with the other party’s attorney–
client relationship. Id. at 161.
¶67 The superior court denied DeMocker’s earlier motion to
dismiss/disqualify based on the prosecution’s viewing of ex parte, sealed
documents, expressly finding that it was “obvious that the Clerk of the
Court and the OnBase administrator’s failures were the proximate cause”
of the documents being made available for viewing by the prosecution
team. The court found that the prosecution had exhibited “no ill or
improper motive in viewing and printing the sealed and ex parte
documents,” which generally related to DeMocker’s requests for money to
hire experts; “the prosecution made no use of the information in those
documents”; “the prosecution’s interference with Defendant’s right to
counsel was not deliberate”; “the State did not benefit in any way from
viewing and printing the sealed and ex parte documents”; “Defendant has
not been directly or indirectly prejudiced”; and “Defendant can receive a
fair trial with YCAO as the State’s representative.”
¶68 As DeMocker acknowledges, this court affirmed that denial
on special action review, finding “no clear error in the trial court’s
findings,” and holding that the “ultimate conclusion that Petitioner was not
prejudiced by the YCAO’s actions is supported by the detailed factual
findings of the court.” This court accordingly has already rejected
DeMocker’s argument, and DeMocker has not established a basis to review
that ruling, which remains the law of the case. See Emp’rs Mut. Liab. Ins. Co.
20
STATE v. DEMOCKER
Decision of the Court
of Wis. v. Indus. Comm’n, 115 Ariz. 439, 441 (App. 1977) (noting that the
decision of an appellate court in a case is the law of that case on the points
presented throughout all the subsequent proceedings in the case in both the
trial and appellate courts).
¶69 As to the jail commander’s conversation with DeMocker,
there was no evidence that the conduct gave rise to an “appearance of
impropriety” so extreme that it warranted a new trial with a different
prosecuting agency. See Alexander, 141 Ariz. at 161. DeMocker testified
only that the jail commander interacted with him after the guilty verdict in
the second trial and ignored his repeated statements that he was still
represented by his attorneys. DeMocker further testified that the jail
commander (1) asked him whether he wanted to submit to media
interviews (and was not just being pressured by his attorneys to do so); (2)
told DeMocker that the distribution of the life insurance proceeds bothered
him, the prosecutor, and the sheriff; and (3) told DeMocker that he could
help get the life insurance proceeds back from his former attorneys and give
them to his daughters. Even accepting DeMocker’s testimony at face value,
he has failed to show how he was prejudiced by the jail commander’s
questioning or that a new trial by a different prosecuting agency was
required. See Alexander, 141 Ariz. at 165 (rejecting disqualification for delay
or other tactical reasons absent prejudice to either side). The court
accordingly did not abuse its discretion by denying DeMocker’s motion for
new trial.
CONCLUSION
¶70 DeMocker’s convictions and sentences are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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