State v. Phillips

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
PAMELA ANNE PHILLIPS, Appellant.
No. 1 CA-CR 17-0285
FILED 7-10-2018
Appeal from the Superior Court in Pima County
No. CR20084012
The Honorable Richard S. Fields, Judge (Retired)
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Tucson
By Jonathan Bass
Counsel for Appellee
Bob Kerry Law, Tucson
By Robert A. Kerry
Counsel for Appellant
STATE v. PHILLIPS
Decision of the Court
MEMORANDUM DECISION
Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Presiding Judge Jon W. Thompson and Judge Peter B. Swann joined.
T H U M M A, Chief Judge:
¶1 Pamela Anne Phillips appeals her convictions for first degree
murder and conspiracy to commit first degree murder and resulting
sentences. Because she has shown no reversible error, her convictions and
sentences are affirmed.
FACTS1 AND PROCEDURAL HISTORY
¶2 On November 1, 1996, Gary Triano was killed by a bomb
placed on the passenger seat of his car in the parking lot of a Tucson country
club. Although Phillips, Triano’s former wife, was a person of interest, the
crime remained unsolved for nearly a decade.
¶3 Phillips and Triano divorced in late 1993 and continued to
dispute custody, visitation and child support. After the divorce, Phillips
remained the owner and beneficiary of a $2 million insurance policy on
Triano’s life. Phillips collected the $2 million proceeds on the policy three
months after Triano was killed.
¶4 In 1994, Phillips moved to Aspen, Colorado. There, Phillips
began an intimate relationship with Ronald Young, a neighbor. Young also
acted as Phillips’ business consultant and helped her develop a website.
¶5 In April 1996, two businessmen reported to the police that
Young had defrauded them. Phillips’ attorney also reported Young to the
police for fraud. A few weeks later, however, Phillips indicated she no
longer wanted to participate in the investigation. An Aspen police detective
1 This court views the facts in the light most favorable to sustaining the
verdicts and resolves all reasonable inferences against the defendant. State
v. Harm, 236 Ariz. 402, 404 n.2 (App. 2015) (citing State v. Valencia, 186 Ariz.
493, 495 (App. 1996)).
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STATE v. PHILLIPS
Decision of the Court
sought to interview Young, but could not locate him. The Aspen police
eventually obtained an arrest warrant for Young on fraud charges.
¶6 Around this same time, Young left Aspen in a rented van. In
July 1996, using an assumed name, Young stayed at a Tucson area hotel
near Triano’s home for several weeks. During this time, Triano told his
girlfriend that he believed he was being followed. When Young’s rented
van was not timely returned, the rental company reported it stolen.
¶7 In October 1996, a few weeks before Triano’s murder, Young’s
rented van was located in California, where police impounded it and
contacted the Aspen police. An Aspen police detective traveled to
California and participated in a search of the van. Inside the van, police
found a shotgun and ammunition; an Arizona license plate; a Tucson map;
paperwork with Young’s name on it; and lists in Young’s handwriting of
Triano’s friends and family, the cars they drove and where they worked.
The van also contained paperwork pertaining to Phillips’ divorce from
Triano, correspondence from Phillips, documents showing Young’s May
1996 purchase of an airplane ticket for Phillips to fly from Aspen to Denver
and back and bills for a stay in a Tucson hotel near Triano’s home in July
1996. After learning of Triano’s murder, the Aspen police contacted the
Pima County Sheriff’s Office, which was the lead agency investigating the
crime, and turned over items found in the van.
¶8 In 2005, Young was arrested in Florida on the Colorado fraud
warrant after being featured on the television show America’s Most Wanted.
Searches of his residence, hotel room, storage unit, vehicle and a laptop
computer seized during his arrest revealed Young regularly had been
receiving money from Phillips after Triano’s death. Among other things,
Young maintained amortization schedules showing payments made on a
$400,000 debt. A forensic accountant examined that evidence, as well as
Young’s and Phillips’ bank statements and shipping records. The
accountant found the loan schedules were consistent with payments
Phillips had been making to Young beginning in early 1997, when Phillips
first received proceeds of the life insurance policy on Triano’s life, until late
2004 or early 2005. The accountant also concluded the two had attempted
to conceal the transactions.
¶9 Young had recorded telephone calls with Phillips in which
they discussed the payments. These recordings show that they referred to
their financial dealings, explicitly and implicitly, as an illegal arrangement,
and Phillips expressed concern about being detected. During one call,
Young reminded Phillips that he had “helped” her “with something that
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Decision of the Court
was beyond what anybody else in the world would probably do” and that
she was “living off the benefits of it.” During another call, when they
disagreed about how much Phillips owed Young, he warned her that she
would “be in prison for murder.”
¶10 In October 2008, Phillips and Young were charged with first
degree murder and conspiracy to commit first degree murder. Phillips was
in Europe at the time and remained there until being extradited to the
United States in 2010. Young was tried and convicted in 2010, while Phillips
was still in Europe. In 2012, Young’s convictions and natural life sentence
were affirmed on appeal, although the court remanded for resentencing on
his conspiracy to commit first degree murder conviction. See State v. Young,
2012 WL 642852 (Ariz. App. Feb. 29, 2012) (mem. dec.)
¶11 Phillips was found incompetent but then restored to
competency. After a jury trial in 2014, Phillips was convicted on both
charges and sentenced to concurrent life prison terms, with the possibility
of release after service of 25 calendar years for the conspiracy conviction.
This court has jurisdiction over Phillips’ timely appeal pursuant to Article
6, Section 9, of the Arizona Constitution and Arizona Revised Statutes
(A.R.S.) sections 12-120.21(A)(1), 13-4031 and 13-4033(A)(2018).2
DISCUSSION
I. Phillips Was Not Improperly Denied Contact With Her Attorneys.
¶12 After Phillips’ arraignment, the superior court granted a
motion by her counsel for a competency evaluation. See Ariz. R. Crim. P. 11.
In December 2011, after considering expert reports, the court found Phillips
incompetent but restorable and ordered restoration services. Phillips
argues she is entitled to automatic reversal of her convictions and sentences
for structural error because the court limited contact between her and her
counsel for a time while she was in restoration. The order limiting contact
was entered after the court received a status report from the treating
psychologist criticizing defense counsel for interfering with restoration
services. This court reviews de novo Phillips’ claim that she was denied her
constitutional right to counsel. State v. Rasul, 216 Ariz. 491, 493 ¶ 4 (App.
2007).
¶13 In February 2012, finding that defense counsel was engaging
in “blatant and intentional interference with the effort to restore an
2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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STATE v. PHILLIPS
Decision of the Court
incompetent defendant, as well as a direct attack on the entire restoration
program,” the superior court restricted defense counsel’s visitation with
Phillips while in restoration to one hour in-person contact every 30 days
and one five-minute phone call per week. The court also prohibited counsel
from responding to Phillips’ letters during this time. These restrictions were
in place for 87 days, from February 9, 2012 to May 7, 2012. The restrictions
were lifted after the attorney whose conduct had created the problem was
removed from the defense team for reasons not relevant here. Phillips
continued in restoration until late November 2012, when the court found
she was restored to competency. Her trial started in mid-February 2014.
¶14 A criminal defendant has the right to the assistance of counsel
under both the United States and Arizona Constitutions. U.S. Const.
amend. VI; Ariz. Const. art. II, § 24; State v. Ruiz, 236 Ariz. 317, 325 ¶ 30
(App. 2014). This right extends to “all critical stages of the criminal
process.” Iowa v. Tovar, 541 U.S. 77, 80–81 (2004); State v. Moody, 208 Ariz.
424, 445 ¶ 65 (2004). A critical stage is one where “substantial rights of . . .
[the] accused may be affected.” Mempa v. Rhay, 389 U.S. 128, 134 (1967); see
also Bell v. Cone, 535 U.S. 685, 696 (2002) (defining a critical stage as “a step
of a criminal proceeding, such as arraignment, that h[o]ld[s] significant
consequences for the accused”). Not every restriction on counsel’s time or
opportunity to consult with a client, however, violates a defendant’s Sixth
Amendment right to counsel. Morris v. Slappy, 461 U.S. 1, 11 (1983).
Furthermore, in most cases involving a claim of interference with the right
to counsel, the defendant bears the burden of showing that the challenged
conduct resulted in prejudice to be entitled to relief. United States v. Cronic,
466 U.S. 648, 658 (1984).
¶15 Phillips acknowledges that any prejudice from the limitation
on counsel’s contact with her during restoration services is speculative.
Relying on Geders v. United States, 425 U.S. 80 (1976), however, Phillips
argues limiting counsel’s contact was structural error that requires reversal
without a showing of prejudice. Structural errors are those that “affect the
entire conduct of the trial from beginning to end, and thus taint the
framework within which the trial proceeds.” State v. Henderson, 210 Ariz.
561, 565 ¶ 12 (2005) (citations and internal quotations marks omitted). When
structural error is shown, a guilty verdict is subject to automatic reversal
without any showing of prejudice. State v. Ring, 204 Ariz. 534, 552 ¶ 45
(2003). This is because structural errors “deprive defendants of ‘basic
protections’ without which ‘a criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or innocence . . . and no
criminal punishment may be regarded as fundamentally fair.’” Id. (quoting
Neder v. United States, 527 U.S. 1, 8-9 (1999). There are relatively few
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STATE v. PHILLIPS
Decision of the Court
instances that qualify as structural error. Ring, 204 Ariz. at 552 ¶ 46. They
include complete denial of criminal defense counsel and denial of access to
criminal defense counsel during an overnight trial recess. Id.
¶16 Recognizing that the order did not result in a complete denial
of contact with her counsel, Phillips seeks to equate the order limiting
contact with counsel for a time when she was in restoration to the denial of
access to defense counsel during a trial recess as in Geders. Geders, however,
is distinguishable. The denial of contact with counsel in that case occurred
during trial. Here, by contrast, the restriction on contact occurred during
restoration nearly two years before trial. Unlike a defendant’s trial,
restoration services do not deal with the merits of the criminal charge. State
v. Superior Court (Gioranella), 113 Ariz. 432, 434 (1976). Thus, Phillips has not
shown that participation in restoration should be viewed as a critical stage
of the criminal proceedings under Geders. This is particularly true given that
restoration services are provided when a defendant is legally incompetent,
i.e., “unable to understand the nature and objective of the proceedings
[against her] or to assist in [her] defense.” Ariz. R. Crim. P. 11.1(a)(2).
Accordingly, absent some impact of the challenged conduct on the
reliability of the trial process, the Sixth Amendment guarantee is generally
not implicated. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867-869
(1982); United States v. Morrison, 449 U.S. 361, 364-365 (1981); Weatherford v.
Bursey, 429 U.S. 545 (1977).
¶17 Moreover, unlike in Geders, there was no complete denial of
counsel at a critical stage, only a limitation on the amount of contact counsel
was permitted to have with Phillips during restoration. The court’s order
permitted counsel to visit with Phillips, but limited contact consistent with
the amount of visitation other defense counsel often had with clients in
restoration to prevent interference with treatment. Given that Phillips
concedes she is unable to show prejudice from the order limiting contact
during restoration, that order does not provide any basis for reversal.
II. The Superior Court Properly Denied Phillips’ Motion To Dismiss
Or For A Continuance As A Sanction For Discovery Violations.
¶18 Multiple law enforcement agencies participated in the
murder investigation, including the Tucson Police Department; the Arizona
Department of Public Safety and various federal law enforcement agencies,
all coordinated by the Pima County Sheriff’s Office. Initially, the State
disclosed more than 300,000 pages (about 160 boxes) of documents to
Phillips. Phillips sought and obtained, approximately a month before trial,
about 2,000 pages of information (some of it apparently not previously
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STATE v. PHILLIPS
Decision of the Court
disclosed by the State) from federal agencies. See United States ex rel. Touhy
v. Ragen, 340 U.S. 462 (1951). Claiming the State (not the federal agencies)
should have disclosed these documents, Phillips moved to dismiss the
charges as a discovery sanction under Ariz. R. Crim. P. 15, asserting a
violation of her due process rights under Brady v. Maryland, 373 U.S. 83
(1963) or, in the alternative, for a continuance.
¶19 The superior court denied the request for a continuance and
deferred ruling on the motion to dismiss until after trial. At a post-trial
hearing, Phillips argued the disclosure issue meant she was unable to fully
investigate and present a third party-culpability defense (primarily, that
Neil McNeice “had the motive, means, and opportunity to kill Triano”) and
was unable to properly prepare witness Dr. Lawrence D’Antonio,
McNeice’s personal physician, to testify at trial. After considering the
arguments and the trial evidence, the court denied the motion to dismiss.
Phillips argues the court erred in denying her motions, rulings this court
reviews for an abuse of discretion. State v. Roque, 213 Ariz. 193, 205 ¶21
(2006), overruled on other grounds by State v. Escalante–Orozco, 241 Ariz. 254
¶¶ 13–14 (2017); State v. Medrano, 173 Ariz. 393, 399 (1992).
¶20 Phillips first argues the information she received from the
federal agencies “was not outside of the state’s control.” But she does not
factually support that argument. Nor does she show how, by receiving
approximately one box of documents about a month before trial, the
superior court was required to dismiss the charges against her or grant the
requested continuance. Similarly, she has not shown dismissal or a
continuance was mandated by her unsupported claim that, “[h]ad the
federal reports been disclosed as required, Phillips would have been able to
do a more thorough and focused independent investigation.”
¶21 Phillips concedes that some of the information obtained from
the federal agencies was (or contained) information she had independently
discovered years earlier. That the information purportedly “connected”
various individuals to other individuals and entities “that possibly also had
motives to kill Triano,” and cars at the country club when Triano was killed,
does not mean the superior court erred in denying her requested relief.
Similarly, Phillips has not shown that earlier disclosure of this information
would have meant that Dr. D’Antonio would have fared better during
cross-examination.
¶22 Although claiming the source of the disclosed information
should have been the State (not federal agencies), the fact remains that
Phillips received the information before trial. Indeed, had she not received
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STATE v. PHILLIPS
Decision of the Court
such disclosure from the federal agencies, the factual predicate for her
argument on appeal would appear to be lacking. Particularly given that she
used the disclosed information at trial, Phillips has not shown how the
source of the disclosed information would require dismissal of the charges
with prejudice. Accord State v. Jessen, 130 Ariz. 1, 4 (1981) (“When previously
undisclosed exculpatory information is revealed at the trial and is
presented to the jury, there is no Brady violation”).3
¶23 Phillips also has not shown how Young seeking a rehearing
in his pursuing post-conviction relief raises issues relevant in her direct
appeal in this case, or that Young’s filings mean Phillips properly raised the
issue with the superior court. Similarly, that four pages of Tim Alger’s
phone bill that Phillips asserts Alger’s “ex-wife had faxed . . . to the secret
service detectives in 1997” were missing would not require dismissal of the
charges with prejudice or a continuance. Although Phillips speculates that
the timing of the disclosure “resulted in an unprepared and ineffective
presentation of Phillips’ third-party culpability defense,” generically
referencing “testimony” of five trial witnesses (with no further specificity)
does not prove the point. On this record, Phillips has shown no abuse of
discretion (or fundamental error resulting in prejudice, to the extent a
specific issue was not timely raised) in the denial of her motion to dismiss
with prejudice or, alternatively, for a continuance as a discovery sanction.
Roque, 213 Ariz. at 205 ¶21; Henderson, 210 Ariz. at 567 ¶ 19; Medrano, 173
Ariz. at 399; State v. James, 231 Ariz. 490, 493 ¶ 11 (App. 2013).
III. Phillips Has Not Shown The Superior Court’s Evidentiary Rulings
Denied Her The Right To Properly Present A Defense.
¶24 Phillips argues the superior court erroneously limited her
presentation of (1) “third-party culpability evidence involving . . . McNeice”
and (2) evidence of “her legitimate financial relationship with Young.” In
exercising the right to a complete defense, “the accused, as is required of
3It does not appear that, in pressing this argument, Phillips claims evidence
was never disclosed. To the extent she intends to do so, she has failed to
show with specificity, or support, what such evidence would have shown
and cannot, accordingly, show a Brady violation. See, e.g., Strickler v. Greene,
527 U.S. 263, 281-82 (noting a Brady violation requires showing “[t]he
evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching”); State v. Montaño, 204 Ariz. 413,
424 ¶ 52 (2003) (“’The test for a Brady violation is whether the undisclosed
material would have created a reasonable doubt had it been presented to
the jury.’”) (citation omitted).
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STATE v. PHILLIPS
Decision of the Court
the State, must comply with established rules of procedure and evidence
designed to assure both fairness and reliability in the ascertainment of guilt
and innocence.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973). “The
admission of third-party culpability evidence is governed by the standards
of Rules 401 through 403 of the Arizona Rules of Evidence, not by Rule
404(b).” State v. Machado, 226 Ariz. 281, 284 ¶ 16 (2011). The admission or
exclusion of evidence is reviewed for an abuse of discretion. See State v.
Escalante–Orozco, 241 Ariz. 254, 274 ¶ 51 (2017).
¶25 As to the third-party culpability evidence, Phillips argues the
superior court was required to admit evidence of purported affiliations or
relationships McNeice had with others, including a bodyguard who
previously worked for an individual who was allegedly “a member of the
Armenian crime syndicate in” Los Angeles, and who knew others who
were capable of building a bomb, and still others who could have
“undertake[n] the bombing.” Phillips also asserts that the court erred in
precluding “evidence that bore on the credibility of Dr. D’Antonio, who
was the chief witness against McNeice,” “evidence of McNeice’s mob ties
in Los Angeles,” evidence that McNeice “was a suspect in another bombing,
that he kept a ‘hit list,’ and that other people who owed him money were
on the list.”
¶26 To the extent Phillips challenges the admission of evidence
regarding McNeice’s affiliations, she has failed to show reversible or
fundamental error resulting in prejudice. To be admissible, third-party
culpability evidence “must have an effect on the defendant’s culpability”
for the charged crimes, tending “’to create a reasonable doubt as to the
defendant’s guilt.’” Escalante-Orozco, 241 Ariz. at 276 ¶69 (citation omitted).
The superior court properly could conclude that the evidence of McNeice’s
purported affiliations “had scant probative weight and was substantially
outweighed by the danger of confusing or misleading the jury,” and that
such affiliations or relationships “did not tend to create a reasonable doubt
about [Phillips’] guilt. The jury would have had to speculate to find
otherwise.” Id. at 276-77 ¶ 69 (citations omitted). Similarly, Phillips has not
shown error in the exclusion as hearsay evidence about McNeice’s
purported “hit list.” See Ariz. R. Evid. 801(c), 802.
¶27 To the extent Phillips argues the superior court erroneously
“precluded evidence that bore on the credibility of” Dr. D’Antonio, she has
failed to show reversible or fundamental error resulting in prejudice. See,
e.g., Ariz. R. Evid. 103(e), 401, 403, 611, 801, 802. The court was not required
to admit hearsay or cumulative, irrelevant or unfairly prejudicial evidence
in response to Phillips’ claim that such evidence bore on witness credibility.
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STATE v. PHILLIPS
Decision of the Court
See, e.g., Ariz. R. Evid. 403, 802; United States v. Scheffer, 523 U.S. 303, 308
(1998) (concluding a defendant’s right to present evidence is subject to
compliance with reasonable evidentiary rules). Nor has she shown that
precluded redirect testimony had to be admitted under the prior consistent
statement exception to the rule against hearsay. See Ariz. R. Evid.
801(d)(1)(B). Finally, to the extent she argues the court erroneously
precluded evidence purportedly showing her financial involvement with
Young “was legitimate,” Phillips has not shown the court reversibly or
fundamentally erred in precluding some evidence as inadmissible hearsay
and precluding other evidence as irrelevant. This includes what Phillips
characterizes as a desire to have communications between them “analyzed
to determine if they were about” a specified piece of property or a sustained
objection, on redirect of one of her witnesses, about a check attached to a
1994 letter that was used to refresh the witness’ recollection. Even if timely
raised before the superior court and properly argued on appeal, Phillips has
not shown the court erroneously excluded such evidence or that it
improperly denied her the right to present a defense.
IV. The Superior Court Did Not Improperly Limit Phillips’
Presentation Of Other Purported Third-Party Culpability
Evidence.
¶28 The superior court allowed Phillips to present significant
evidence to support her third-party culpability defense that McNeice killed
Triano. On appeal, Phillips argues she “sought to introduce evidence that
others also had the motive and means to murder Triano,” and that the court
“erroneously precluded [her] from introducing any third-party culpability
evidence that did not pertain to McNeice.” Phillips argues broadly that
“[t]he pipe bomb execution created the real possibility that the perpetrator
was anyone with the motive, means and opportunity to commit the crime.”
She then asserts that “Triano had ties to criminal enterprises,” which she
claims “creates a reasonable doubt about” her guilt. In pressing these
arguments, Phillips paints with too broad a brush.
¶29 Asserting a third-party culpability defense does not, as
Phillips suggests, require a court to admit all evidence regarding every
individual who may have had a motive, means or opportunity to commit a
crime. “[V]ague grounds of suspicion” of another do not constitute
admissible third-party culpability evidence. State v. Bigger, 227 Ariz. 196,
209 ¶ 43 (App. 2011) (citation omitted). As pointedly noted by the Arizona
Supreme Court more than once, a “’defendant may not, in the guise of a
third-party culpability defense, simply throw strands of speculation on the
wall and see if any of them stick.’” State v. Goudeau, 239 Ariz. 421, 460 ¶ 165
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STATE v. PHILLIPS
Decision of the Court
(2016) (quoting Machado, 226 Ariz. at 284 ¶ 16 n.2). Nor does Phillips cite
any authority supporting her assertion that admitting at trial all evidence
for every individual who may have had a motive, means or opportunity to
commit a crime would not “have caused any confusion of the issues.” The
record on appeal does not support Phillips’ further third-party culpability
evidence arguments.
¶30 At trial, Phillips’ counsel was allowed to cross-examine
Detective St. John, the lead detective from 1996 until 1998, to show that
there were several potential suspects identified at the beginning of the
investigation, and “there were a lot of people with a lot of motives to kill”
Triano. When Phillips’ attorney asked about a specific individual, outside
of the presence of the jury, the State noted that “third party culpability case
law indicates that . . . speculative potential people who might be responsible
is not admissible,” adding that evidence of “potential suspects [other than
McNeice] at that time is irrelevant and not probative, and it has 403
problems in terms of confusion of the jury.” During a lengthy discussion,
after listing various individuals or entities purportedly having a motive to
kill Triano, Phillips’ attorney avowed “I’m not going to get into hearsay,”
adding “I’m not saying that they did it. I’m just saying that they were
investigated because they had motive.” Given this avowal, the court
allowed Phillips’ attorney to ask Detective St. John whether Phillips “was
the only suspect investigated,” and whether he investigated various other
individuals or entities and why. In the presence of the jury, Phillips’ counsel
then asked those questions and the witness answered them. In doing so, the
superior court allowed the type of questioning Phillips requested at trial.
¶31 To the extent Phillips’ appellate argument differs from what
she requested at trial, review is limited to fundamental error. Henderson, 210
Ariz. 561, 567 ¶ 19. Fundamental error is “error going to the foundation of
the case, error that takes from the defendant a right essential to [her]
defense, and error of such magnitude that the defendant could not possibly
have received a fair trial.” Id. “Accordingly, [Phillips] bears the burden to
establish that (1) error exists, (2) the error is fundamental, and (3) the error
caused [her] prejudice.” James, 231 Ariz. at 493 ¶ 11 (citations and internal
quotations omitted). Phillips has shown no fundamental error on the point,
let alone fundamental error resulting in prejudice.
¶32 To the extent Phillips timely raised the issue at trial, she has
not shown that the superior court, in the guise of third-party culpability
evidence, was required to admit evidence that Triano “was involved with
several Indian casino ventures” and “owed money to Las Vegas casinos”
and filed bankruptcy when “he owed $26.8 million to creditors.” Nor has
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STATE v. PHILLIPS
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she shown that the court was required to admit evidence of any planned
civil action between Triano and Gary Fears involving a casino in China that
failed to open. Similarly, she has not shown that evidence of Triano’s
helping to gather incriminating evidence against another arising out of a
bankruptcy proceeding, or that an entity lost money in a deal with Triano,
had to be admitted as third-party culpability evidence. Relatedly, Phillips
has not shown what evidence she sought to offer of a purported death
threat to Triano by “an entity with reputed connections to a Mexican cartel”
that purportedly “lost $2 million in a deal with Triano.” Finally, her
argument on appeal that “[t]he pipe bomb was a classic organized crime
technique to kill” does not, somehow, demonstrate error by the superior
court in determining the admissibility of third-party culpability evidence
based on the record and arguments presented at trial.
V. Phillips Has Not Shown A Violation Of Her Due Process And Fair
Trial Rights As A Result Of Prosecutorial Misconduct.
¶33 Phillips argues prosecutorial misconduct based on (1)
intentionally withholding evidence; (2) witness intimidation; and (3) a
prosecutor starting an outside consulting business. Phillips argues there
was a continuing pattern of misconduct that prejudiced her defense and
that double jeopardy would bar a retrial. Both parties cite State v. Hughes as
providing the applicable standard:
To prevail on a claim of prosecutorial
misconduct, a defendant must demonstrate that
the prosecutor’s misconduct “so infected the
trial with unfairness as to make the resulting
conviction a denial of due process.” “Reversal
on the basis of prosecutorial misconduct
requires that the conduct be ‘so pronounced and
persistent that it permeates the entire
atmosphere of the trial.’” To determine whether
prosecutorial misconduct permeates the entire
atmosphere of the trial, the court necessarily has
to recognize the cumulative effect of the
misconduct.
193 Ariz. 72, 79 ¶ 26 (1998) (citations omitted). A ruling on a motion to
dismiss for prosecutorial misconduct is reviewed for an abuse of discretion.
State v. Trani, 200 Ariz. 383 ¶5 (App. 2001); State v. Lee, 189 Ariz. 608, 616
(1997).
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STATE v. PHILLIPS
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¶34 The purported withholding of evidence assertion appears to
be based both on the timing and source of materials that were the subject of
Phillips’ argument challenging the superior court’s denial of her motion to
dismiss as a discovery sanction, see Section II, as well as other evidence. To
the extent it is based on the materials that were the subject of her motion to
dismiss, it fails for the grounds set forth above. To the extent it is based on
other evidence, as the State suggests, the “gist” of the argument “is not so
much that she was denied this material, but that it was disclosed by the
prosecutors who tried the case, rather than by those who left the
prosecutors’ office 3 years before trial began.” As noted by the United States
Supreme Court, “the touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the culpability of
the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). Accordingly,
although Phillips raises concerns about disclosures made by prosecutors
who left the prosecution team years before trial, she has not shown such
conduct had any impact on the fairness of the trial or violated her due
process rights.4
¶35 Phillips’ witness intimidation argument arises out of a claim
that State investigators, contrary to a court order, told certain individuals
that certain other individuals were connected to the bombing and were the
source of related information. This, she argues, resulted in two witnesses
recanting prior statements. Before trial, Phillips raised this issue with the
superior court, which declined to hold the investigators in contempt, but
allowed her counsel to use the pretrial interview, taken before any
recantation, for one witness at trial. Although Phillips claims this was “an
overt act of misconduct” because it was “a direct violation of a court order
that was [put] in place to protect the identities of witnesses so that they
would not be threatened or influenced before they testified,” the court that
issued the order she claims was violated viewed it differently. That court
declined to hold the investigators in contempt, instead issuing orders
addressing the issue from an evidentiary perspective. Phillips has not
shown how this conduct by investigators properly is attributable to the
prosecutors; how it means the prosecutors actively discouraged witnesses
from testifying or, given the remedial rulings, how it resulted in an unfair
trial. Smith, 455 U.S. at 219. Nor has she shown that the court abused its
discretion in addressing the issue.
4 Phillips’ argument regarding the use of grand jury subpoenas by these
same prosecutors who did not try the case is addressed, in substance, in
Section VIII below, and she has not shown that any such misconduct had
any impact in the fairness of the trial.
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STATE v. PHILLIPS
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¶36 The final basis for Phillips’ prosecutorial misconduct
argument is that a prosecutor, while appearing as counsel on the case,
started a consulting business, advertising involvement with the Triano
homicide as bolstering his qualifications for solving older, unsolved crimes.
Asserting this consultancy “was in direct conflict with a prosecutor’s duty
to act as a minister of justice,” see Ariz. R. Sup. Ct. 42, ER 3.8 cmt. 1, Phillips
claims that “[t]his intentional misconduct was so egregious that it raises
concerns over the integrity and fundamental fairness of the trial itself.”
Phillips, however, admits that this prosecutor was removed “from the case
when defense counsel discovered the conflict” and acknowledges the
superior court imposed no sanction because the individual “resigned from
the county attorney’s office.” That resignation occurred approximately
three years before trial, and Phillips has not shown how any misconduct
associated with this consultancy had any impact on the trial, let alone
resulting in an unfair trial. Smith, 455 U.S. at 219. For these reasons, Phillips
has not shown prosecutorial misconduct resulting in a denial of her due
process and fair trial rights and has not shown the court abused its
discretion in addressing the issue.
VI. The Superior Court Did Not Err In Denying Phillips’ Motion To
Suppress Recordings Of Her Calls With Young.
¶37 Phillips argues the superior court erred in denying her motion
to suppress recordings of her phone calls with Young, which Young
recorded and were seized in Florida after his arrest in 2005. At trial, the
State introduced portions of the recordings where the two discussed
payments Phillips was making to Young. Phillips argues the recordings
should have been precluded under 18 U.S.C. §§ 2510, et seq., and Florida
Statutes Annotated (F.S.A.) § 934.06. This court reviews the superior court’s
ruling for an abuse of discretion, analyzing legal conclusions de novo.
Moody, 208 Ariz. at 445 ¶ 62.
¶38 As applicable here, federal law allows one participant to
record a call even if the other does not consent. See 18 U.S.C. § 2511(2)(d).
This statute, however, prohibits recording if it is “for the purpose of
committing any criminal or tortious act in violation of the Constitution or
laws of the United States or of any State.” Id. Phillips argues that
suppression of recordings under federal statutory law is required where a
defendant shows by a preponderance of the evidence that the recording
was made for an unlawful purpose. See, e.g., United States v. McTiernan, 695
F.3d 882, 888 (9th Cir. 2012) (citing cases); Wasserman v. Low, 143 Ariz. 4, 10
(App. 1984) (citing cases). By denying her motion to suppress, the superior
14
STATE v. PHILLIPS
Decision of the Court
court found that Phillips had not made that required showing, a conclusion
Phillips has not shown was in error.
¶39 Although Phillips argued the recordings were “created by a
‘confidence man’ for criminal and tortuous purposes (e.g., fraud, blackmail,
and extortion),” she has not shown that the superior court was required to
reach that conclusion. To the contrary, on the record presented, that court
could have properly concluded that Young made the recordings “’out of a
legitimate desire to protect himself and his own conversations from later
distortion or other unlawful or injurious uses by the other party.’”
Wasserman, 143 Ariz. at 10 (quoting Meredith v. Gavin, 446 F.2d 794, 798-99
(8th Cir. 1971)). Accordingly, and applying the “case by case” analysis
required for such analysis, Wasserman, 143 Ariz. at 10, Phillips has not
shown that the court admitted the recordings contrary to federal statute.
¶40 Phillips argues, with significant force, that recordings were
inconsistent with Florida law, where Young was located when he made the
recordings. See F.S.A. § 934.03(2)(d) (allowing such recording, as applicable
here, only “when all of the parties to the communication have given prior
consent”). A related Florida statute provides that no recorded information
“may be received in evidence in any trial, hearing, or other proceeding in
or before any court, grand jury, department, officer, agency, regulatory
body, legislative committee, or other authority of the state, or a political
subdivision thereof, if the disclosure of that information would be in
violation of this chapter.” F.S.A § 934.06. Accordingly, if this was an appeal
from a trial in Florida state court, Phillips would have a strong argument
that the recordings were inadmissible under this statute. This trial,
however, did not occur in Florida state court.
¶41 From its text, it is uncertain whether the Florida statutory
prohibition on admissibility where less than all parties consent to a
recording was designed to apply to evidentiary decisions made by courts
in other states. The text of the prohibition refers, in part, to “the state,”
suggesting it is limited to Florida. Although a phrase not used in the
prohibition, the statute elsewhere defines “judge of competent jurisdiction”
to mean judicial officers “of any court of record having felony jurisdiction
of the State of Florida.” F.S.A § 934.02(8). Perhaps most significantly,
although this prohibition has been in place since 1969, no case has found it
applies anywhere other than Florida state court. Nor has Phillips shown
how, by statute, Florida could direct that certain evidence was inadmissible
in an Arizona court proceeding. Cf. State v. Willoughby, 181 Ariz. 530, 542
(1995) (in a criminal case, “[w]hen interpreting nonjurisdictional,
substantive statutes . . . , we ordinarily assume the substantive reach of a
15
STATE v. PHILLIPS
Decision of the Court
law is contained within the territorial borders of the enacting jurisdiction to
avoid conflicts with other jurisdictions”). This is particularly true given that
the governing rules of evidence are those in the forum state where the trial
occurs. See Cordon v. Cotton Lane Holdings, Inc., 173 Ariz. 203, 206 (1992)
(“Procedural matters are generally governed by the law of the forum
state.”) (citing Restatement (Second) of Conflict of Laws § 122 (1971)); see
also State v. Superior Court, 154 Ariz. 574, 576 (1987) (“[R]ules of evidence are
procedural in nature.”).
¶42 The cases Phillips cites for arguing what state’s law should
apply miss the mark. They involve one or more of the following (and,
accordingly, are distinguishable): civil claims for money damages, state
courts applying that same state’s law, personal jurisdiction issues and/or
reject the type of relief Phillips seeks here.5 None of the cases she cites show
the superior court erred in admitting the recordings under Arizona
evidence law, notwithstanding the Florida statute, in this criminal case tried
in Arizona state court. The fact that Young recording his calls with Phillips
may have exposed him to criminal prosecution or civil liability under
Florida law is not germane to whether the Arizona superior court in this
case properly admitted portions of those recordings applying the Arizona
Rules of Evidence.
¶43 The Supreme Courts of the United States and Arizona have
declared that the issues involving the admissibility of evidence “’depend
upon the law of the place where the suit is brought.’” Ross v. Ross, 96 Ariz.
249, 251-52 (1964) (quoting Scudder v. United National Bank, 91 U.S. 406, 413
(1875)). Phillips has not shown that the rule has changed or that a different
rule applies to non-constitutional objections in criminal cases. Accordingly,
Phillips has not shown that Florida law precluded the Arizona superior
5 See Kadoranian by Peach v. Bellingham Police Dept., 829 P.2d 1061, 1062, 1068
(Wash. 1992) (affirming summary judgment of dismissal in “a civil action
seeking damages allegedly caused by constitutional and statutory
violations of the right to privacy”); State v. Fleming, 755 P.2d 725, 727 (Or.
Ct. App. 1988) (affirming murder and other convictions, noting “[t]he
recording was made in Oregon lawfully, and Washington law simply does
not apply.”); Stowe v. Devoy, 588 F.2d 336, 341 (2d Cir. 1978) (affirming
denial of petition for writ of habeas corpus; finding 18 U.S.C. §§ 2515, et seq.
had no extraterritorial application in another country); France v. France, 90
So. 3d 860 (Fla. Dist. Ct. App. 2012) (reversing dismissal for lack of personal
jurisdiction for claim by Florida resident that North Carolina resident
violated Florida law).
16
STATE v. PHILLIPS
Decision of the Court
court from admitting the recordings. Nor has she shown that the recordings
were not properly admitted under Arizona law.
VII. The Trial Evidence Was Sufficient To Support The Verdicts.
¶44 Phillips argues that insufficient evidence was presented to
sustain her convictions generally, as opposed to any deficiency in a
particular element of the charges. She asserts the evidence against her was
speculative and the inferences to be drawn were ambiguous. In considering
claims of insufficient evidence, this court’s review is limited to whether
substantial evidence supports the verdicts. State v. Scott, 177 Ariz. 131, 138
(1993); see also Ariz. R. Crim. P. 20(a). Substantial evidence is evidence,
viewed in the light most favorable to sustaining the verdict, from which a
reasonable person could find a defendant guilty beyond a reasonable
doubt. State v. Roseberry, 210 Ariz. 360, 368-69 ¶ 45 (2005). If reasonable
jurors could fairly disagree about whether evidence establishes a fact at
issue, the evidence is substantial. State v. Rodriguez, 192 Ariz. 58, 60 ¶ 10
(1998). This court reviews de novo claims of insufficient evidence. State v.
West, 226 Ariz. 559, 562 ¶ 15 (2011).
¶45 Evidence of Phillips’ guilt was largely circumstantial. A
conviction, however, may be based solely on circumstantial evidence
because “the probative value of direct and circumstantial evidence are
intrinsically similar” and “the law makes no distinction” as to the weight
assigned to each. State v. Harvill, 106 Ariz. 386, 391 (1970); see also State v.
Anaya, 165 Ariz. 535, 543 (App. 1990) (“The substantial evidence required
for conviction may be either circumstantial or direct, and the probative
value of the evidence is not reduced simply because it is circumstantial.”).
Here, there was substantial evidence from which the jury could have found
that Phillips conspired with Young to kill Triano and that Young undertook
the job of carrying out the killing.
¶46 The jury heard evidence that, during their contested family
court proceedings, Phillips spoke of hiring someone to kill Triano so she
could collect on his $2 million life insurance policy. Besides saying she
wanted Triano dead, Phillips also said it would be easy for someone to kill
him, adding his habits were predictable and that he played golf every day.
Other trial evidence included the murder itself; Young’s travelling to
Tucson in a van later found to contain a shotgun, a list of Triano’s
acquaintances and family in his handwriting and paperwork from Phillips’
divorce; the fact that Young had no known connection to Triano before the
murder; Phillips’ recovery of proceeds from a life insurance policy on
Triano’s life and her sending money to Young and Young’s demand for
17
STATE v. PHILLIPS
Decision of the Court
additional sums; their attempts to conceal and disguise payments and
Phillips using false names in her dealings with Young. Further evidence
included the relationship Phillips developed with Young in Aspen after the
divorce, the disguised payments Phillips made to Young after the murder
totaling twenty-percent of the $2 million life insurance proceeds she
received following Triano’s death, and emails and recorded calls between
Phillips and Young. Collectively, this evidence would permit a reasonable
jury to conclude that Phillips conspired with Young to have Triano killed
and Young undertook the job of murdering him at her request.
¶47 Phillips dismisses the evidence as speculative because there
was no direct evidence that Young knew how to build a bomb or was the
person who placed it in Triano’s car. She also argues that because there was
no specific evidence that Young was in Tucson on the day of the bombing,
the jury could only infer that he was somewhere else. The jury, however,
was entitled to draw different inferences from the totality of the evidence,
including inferences different than those suggested by Phillips. See State v.
Arce, 107 Ariz. 156, 161 (1971) (“It [is] the function of the jury to decide what
reasonable inferences could be drawn from the evidence.”). On this record,
there was substantial evidence from which a reasonable jury could have
found Phillips guilty beyond a reasonable doubt.
VIII. Phillips Has Not Shown The Superior Court Erred In Denying Her
Motion To Suppress Evidence Obtained By Grand Jury
Subpoenas.
¶48 Phillips argues the State obtained her banking records in
Arizona, Colorado and elsewhere using invalid grand jury subpoena duces
tecum, and the superior court erred in finding the subpoenas were not
unlawful. The thrust of her argument is that the grand jury subpoenas were
required to comply with A.R.S. § 13-4071, and because they did not, the
superior court erred in denying her motion to suppress evidence obtained
in response to the subpoenas. This court reviews the denial of such a motion
to suppress for an abuse of discretion. See State v. Peterson, 228 Ariz. 405, 407
¶ 6 (App. 2011).6
6 The briefs on appeal do not address whether the subpoenas are proper
under A.R.S. § 13-1812. Phillips states, in her opening brief on appeal, that
the State “should have properly sought search warrants based on probable
cause through a magistrate.” Having cited no authority for this proposition,
however, she has abandoned and waived any such argument. See, e.g., State
18
STATE v. PHILLIPS
Decision of the Court
¶49 The record shows the State used grand jury subpoenas duces
tecum to obtain copies of Phillips’ bank statements and other transactional
records. Phillips’ motion to suppress, however, did not assert that the grand
jury subpoenas failed to comply with A.R.S. § 13-4071. Phillips did,
however, raise the issue in a supplement to the motion to suppress.
¶50 Under A.R.S. § 13-4071, which Phillips cites on appeal, a clerk
on request of a county attorney or attorney general “shall” issue a grand
jury subpoena “without prior authorization by a grand jury, if all of the
following occur:” (1) a grand jury was empaneled at the time of issuance;
(2) the county attorney designates the subpoena with the standard
identifying grand jury number; (3) the county attorney reports to the grand
jury foreperson that the subpoena issued within 10 days of issuance and (4)
the county attorney reports to the presiding judge that the subpoena issued
within 10 days of issuance. See A.R.S. § 13-4071(C)(1)-(4). Although it is
undisputed that the first two requirements were met, the State concedes the
last two were not. The question, then, is whether the failure to comply with
these reporting obligations required the court grant her motion to suppress
evidence obtained in response to the grand jury subpoenas duces tecum.
¶51 The out-of-state authority Phillips cites either supports the
State’s position, see State v. Reid, 945 A.2d 26, 30, 35-37 (N.J. 2008) (noting
“municipal court subpoena” was improper under New Jersey law, but
grand jury subpoena without notice would be proper), or is distinguishable,
see People v. Natal, 553 N.E.2d 239, 242 (N.Y. 1990) (noting, under New York
law, “[i]t is for the court, not the prosecutor, to determine where
subpoenaed materials should be deposited”); People v. Doty, 929 N.Y.S.2d
464, 468-71 (N.Y. 2011) (trial court granting motion challenging grand jury
presentment where witness provided hearsay, which was inadequate
under New York law; in alternative discussion, noting subpoena seeking
bank records “was akin to an administrative subpoena” that did not comply
with notice requirements under federal law). Phillips provides no Arizona
authority showing the court was required to grant her motion to suppress.
¶52 The clerk of court, when issuing a subpoena, cannot know
whether the reporting obligations, relating to “the fact of the issuance of the
subpoena,” A.R.S. § 13-4071(C)(3), (4), will later be met, meaning there can
be no claim that the subpoenas were improperly issued. As the State notes,
A.R.S. § 13-4071 does not specify that grand jury subpoenas are invalid if
these reporting obligations are not met, and the statute does not specify a
v. Bolton, 182 Ariz. 290, 298 (1995); MacMillan v. Schwartz, 226 Ariz. 584, 591
¶ 33 (App. 2011).
19
STATE v. PHILLIPS
Decision of the Court
remedy if they are not. Similarly, “[t]he availability of the suppression
remedy for . . . statutory, as opposed to constitutional, violations . . . turns
on the provisions” of the statute involved, not the “exclusionary rule aimed
at deterring violations of Fourth Amendment rights.” United States v.
Donovan, 429 U.S. 413, 432 n.22 (1977). On this record, although it appears
the superior court had the discretion to grant Phillips’ motion to suppress,
it also had the discretion to deny that motion. Accordingly, Phillips has not
shown the court erred in denying her motion to suppress evidence obtained
by grand jury subpoenas.7
IX. Phillips Has Not Shown The Superior Court Erred In Admitting
Young’s Recorded Statements Pursuant To The Co-Conspirator
Exception To The Rule Against Hearsay.
¶53 Phillips contends the superior court erred in admitting
Young’s recorded statements because they were inadmissible under the
rule against hearsay. Phillips acknowledges that she failed to timely object
or otherwise preserve this issue in the superior court. Accordingly, review
is limited to fundamental error. Henderson, 210 Ariz. at 567 ¶ 19.
¶54 Statements that are not hearsay include those made by a
defendant’s co-conspirator. See Ariz. R. Evid. 801(d)(2)(E). As applicable
here, a statement offered against an opposing party is admissible as non-
hearsay if it “was made by the party’s coconspirator during and in
furtherance of the conspiracy.” Id. “The statement must be considered but
does not by itself establish . . . the existence of the conspiracy or
participation in it.” Id. “A coconspirator’s statements are admissible when
it has been shown that a conspiracy exists and the defendant and the
declarant are parties to the conspiracy.” State v. Dunlap, 187 Ariz. 441, 458
(App. 1996) (citation and internal quotations omitted). The superior court
has substantial discretion in determining whether this showing has been
made; even when such evidence is received over a timely objection, this
court “will only reverse if the trial court abused its discretion in
determining that statements of a coconspirator met the rule’s requirements
and were admissible.” Id.
¶55 Arguing “the only evidence that could arguably establish an
agreement to commit a crime were the payments Phillips made to Young,”
7Given this conclusion, the court need not and expressly does not address
the competing arguments about harmless error and whether the State’s
conduct was objectively reasonable and in good faith under A.R.S. § 13-
3925.
20
STATE v. PHILLIPS
Decision of the Court
Phillips adds that “there is no independent evidence to indicate that the
payments were made for a criminal purpose other than the fact that they
discussed the payments in code.” This argument is premised on the thought
that evidence of a conspiracy must be direct and irrefutable to comply with
Ariz. R. Evid. 801(d)(2)(E). Phillips offers no authority supporting that
position. To the contrary, direct and circumstantial evidence are treated the
same under Arizona law, State v. Stuard, 176 Ariz. 589, 603 (1993), and a
conspiracy may consist of, and be proven by, circumstantial evidence alone,
State v. Arredondo, 155 Ariz. 314, 317 (1987) (“Criminal conspiracy need not
be, and usually cannot be, proved by direct evidence.”).
¶56 The record contains circumstantial evidence of the conspiracy
above and beyond the payments Phillips made to Young. Along with the
murder itself, such evidence included Phillips’ statements before the
murder that she wanted Triano killed; Young’s travelling to Tucson in a van
later found to contain a shotgun, a list of Triano’s acquaintances and family
in his handwriting and paperwork from Phillips’ divorce; the fact that
Young had no known connection to Triano before the murder; Phillips’
recovery of proceeds from a life insurance policy on Triano’s life and her
sending money to Young and Young’s demand for additional sums; their
attempts to conceal and disguise payments and Phillips using false names
in her dealings with Young. On this record, Phillips has not shown the
superior court erred in admitting Young’s recorded statements pursuant to
the co-conspirator exception to the rule against hearsay, let alone
fundamental error resulting in prejudice. See James, 231 Ariz. at 493 ¶ 11.
X. Phillips Has Shown No Abuse Of Discretion In The Superior
Court Limiting Post-Trial Juror Contact Based On A Juror
Complaint.
¶57 When thanking and discharging the jurors, the superior court
told them they were free to discuss the case if they wished to do so, “but if
you don’t, let people know that, and they will abide by your wishes.” The
court’s staff later informed the court and counsel that the jury had decided
not to talk to counsel. The court then personally conveyed the jurors’ wishes
to counsel. The next week, however, a juror reported to the court that a
defense investigator had called her and that when she told him that she did
not want to talk to him, the investigator said he would call her back later
that week. In response, the court directed counsel to cease having their
investigators contact jurors and to seek a hearing with the court before any
other juror interviews take place. Phillips argues the court erred in issuing
this order, a ruling this court reviews for an abuse of discretion. State v.
Paxton, 145 Ariz. 396, 397 (App. 1985).
21
STATE v. PHILLIPS
Decision of the Court
¶58 Phillips argues there was no “indication that the jurors were
being harassed or interviewed without their consent.” The record before the
superior court, however, is to the contrary. The record includes a text
exchange between a juror and the court’s bailiff, where the juror wrote she
had been contacted by a defense investigator who also had been a trial
witness. The juror recounted telling the investigator that “I didn’t want to
talk with anyone” and, when told the court ordered no additional juror
contact, the juror responded “Wow, thanks. [The defense investigator] said
he would be calling me back this week cuz I wouldn’t talk to him today.
That feels good. It’s a relief for me. No pressure from him.” This record
properly supports a finding of unwanted contact.
¶59 Phillips also argues she had an implied right to interview
jurors pursuant to Ariz. R. Crim. P. 24.1(c)(3). That rule provides various
ways juror misconduct may provide a basis for a motion for new trial. It
does not, however, provide an unlimited right for post-verdict juror
contact. Moreover, case law authorizes the superior court, given the juror’s
complaint, prohibiting counsel “from contacting jurors without a prior
showing of ‘good cause’ and approval from the court.” State v. Olague, 240
Ariz. 475, 482 ¶ 23 (App. 2016) (citing Paxton, 145 Ariz. at 397). On this
record, Phillips has shown no error in the superior court limiting post-
verdict juror contact.8
XI. Phillips Has Shown No Abuse Of Discretion In Prohibiting
Questions About Whether Witnesses Had Testified At Young’s
Trial.
¶60 At Phillips’ request, during jury selection, the superior court
read the following statement to the prospective jurors:
You will hear that the co-defendant in this case,
Ronald Young, has been previously convicted
of the crimes charged. You must not consider
this information as evidence of Ms. Phillips’
guilt. Ms. Phillips is being tried separately with
the evidence the State has determined pertains
8 Phillips also states, with no further elaboration, that the decision on jury
contact “was error that violates Phillips’ rights to due process, a fair trial,
and her right to counsel under the U.S. Const., Amendments 5, 6, and 14
and the Arizona Const., art. 2 §§4 and 24.” “Merely mentioning an
argument in an appellate opening brief is insufficient” to preserve or raise
the issue. MacMillan, 226 Ariz. at 591 ¶ 33.
22
STATE v. PHILLIPS
Decision of the Court
to her. This evidence may differ from that
presented at the co-defendant’s trial. You are
not to speculate about the co-defendant’s guilt
or how the evidence may have been presented
differently. You must base Ms. Phillips’ guilt or
innocence of the evidence presented in this case
only.
The court included a similar statement in the final jury instructions. On
appeal, Phillips argues the court erred in informing the jury about Young’s
convictions.
¶61 Arizona “has long held that a defendant who invited error at
trial may not then assign the same as error on appeal.” Moody, 208 Ariz. at
453 ¶ 111. Because Phillips specifically requested that the jury be informed
of the fact of Young’s convictions and did not object to the statement
provided to the jury, the invited error doctrine precludes granting relief on
this claim. See State v. Fulminante, 161 Ariz. 237, 248–49 (1988) (finding no
error where defense counsel strategically stipulated to admission of
defendant’s prior convictions), aff’d, 499 U.S. 279 (1991).
¶62 Phillips also contends the superior court deprived her of the
right to present her third-party culpability defense by precluding her from
asking any of the defense witnesses about Young’s trial and whether they
had testified in his defense. She argues this evidence was necessary to show
the jury she was presenting a completely different defense than the one
presented by Young. In substance, Phillips wanted to present evidence so
“her jurors felt that Young had been wrongly convicted.” As set forth in the
instructions Phillips requested, the jury was instructed by the court not to
consider the fact that Young had been convicted in determining her guilt.
Further, the jury was specifically instructed that the trial evidence
presented may differ from that presented at Young’s trial and that the jury
was not to speculate about Young’s guilt or how the evidence may have
been presented differently. Jurors are presumed to follow the court’s
instructions. See State v. Newell, 212 Ariz. 389, 403 ¶ 68 (2006). Accordingly,
the superior court properly precluded the presentation of any evidence
regarding Young’s trial.
23
STATE v. PHILLIPS
Decision of the Court
XII. Phillips Has Not Shown The Superior Court Abused Its Discretion
In Denying Her Motion For Mistrial.
¶63 Phillips argues the superior court erred in denying her motion
for a mistrial or alternatively to strike testimony and provide a limiting
instruction after defense counsel’s questioning resulted in a witness making
a reference to Young’s conviction. The exchange during cross-examination
was as follows, with the statement challenged by Phillips highlighted:
[Phillips’ Counsel] Q. Okay. All right. Well, let
me -- let me -- let’s start a little list here. Given
that we are trying to find a suspect, okay, or a
person of interest with regard to this -- you
know, this investigation?
A. Okay. We are trying to find -- we are trying
to find a bomber?
Q. Right.
A. I thought that had already been settled, but--
Q. In 2004, it had already been settled?
A. No. I thought that case had already been
settled in 2009.
Q. Okay. Well, this is another trial.
A. Oh. I realize that, but now you are talking
about a bomber.
Q. Okay. I am talking about a bomber that you
were trying, in 2004, to locate when you made
that device.
A. Okay. I’m not quite following your
questioning, but proceed.
Q. In 2004, when you made that device, did you
know who did this?
24
STATE v. PHILLIPS
Decision of the Court
A. No, I did not.9
(Emphasis added.) Phillips argues the statement “that case had already
been settled in 2009” is a “highly prejudicial statement” “referring to
Young’s conviction,” meaning the court erred in denying her motion for
mistrial or, alternatively, to strike and provide a curative instruction.
¶64 The State contends Phillips’ argument should be rejected
under the invited error doctrine because the testimony was elicited by
defense counsel. A review of the record finds no indication that defense
counsel sought to develop the answer provided. Instead, it appears the
testimony was unexpectedly volunteered by the witness due to confusion
about the question. Under these circumstances, the invited error doctrine
does not apply. See State v. Lucero, 223 Ariz. 129, 135 ¶ 18 (App. 2009)
(cautioning against apply the invited error doctrine “unless the facts clearly
show that the error was actually invited by the appellant”).
¶65 Declaring a mistrial is “the most dramatic remedy for trial
error and should be granted only when it appears that justice will be
thwarted unless the jury is discharged and a new trial granted.” State v.
Dann, 205 Ariz. 557, 570 ¶ 43 (2003). In determining whether to grant a
mistrial, the court should consider whether the testimony called the jurors’
attention to matters that they would not be justified in considering in
reaching a verdict and the probability under the circumstances that the
testimony influenced the jurors. State v. Bailey, 160 Ariz. 277, 279 (1989).
Review for a trial court’s denial of mistrial is for abuse of discretion. State v.
Jones, 197 Ariz. 290, 304 ¶ 32 (2000).
¶66 As applied, the superior court could reasonably conclude the
brief statement would not influence the jury. As noted above, see Section XI,
at Phillips’ request, the superior court told prospective jurors that Young
“has been previously convicted of the crimes charged,” that jurors “must
not consider this information as evidence of Ms. Phillips guilt,” must “not
speculate about the co-defendant’s guilt or how the evidence may have
been presented differently” and must determine her “guilt or innocence on
the evidence presented in this case only.” The court also gave a similar
9 In her reply brief on appeal, Phillips seeks to rely on an additional
statement by this same witness that she alleges was “a non-responsive
answer.” By failing to press that issue in her opening brief, it is too late for
Phillips to do so in her reply. See State v. Guytan, 192 Ariz. 514, 520 ¶ 15
(App. 1998); see also Moody, 208 Ariz. at 452 ¶ 101 n.9. Even considering that
additional statement, however, would not alter the analysis here.
25
STATE v. PHILLIPS
Decision of the Court
statement to the jury in final instructions. Jurors are presumed to follow the
court’s instructions. See Newell, 212 Ariz. at 403 ¶ 68. Accordingly, Phillips
has shown no abuse of discretion in the denial of her motion for mistrial or
her motion to strike and give a curative instruction.
XIII. Phillips Has Shown No Error Regarding The Assessment Of
Attorneys’ Fees.
¶67 At sentencing, the superior court ordered Phillips to pay
$35,000 in attorneys’ fees pursuant to A.R.S. § 11-584. Phillips argues this
assessment must be vacated because the court failed to make specific factual
findings, including that she has the financial resources to make the payment
and that she is able to pay the amount ordered without incurring
substantial hardship. See State v. Taylor, 216 Ariz. 327, 334 ¶ 25 (App. 2007).
Because Phillips did not object to the assessment of attorney fees in the
superior court, review is limited to fundamental error. Henderson, 210 Ariz.
561, 567 ¶ 19.
¶68 By statute, a superior court may order a defendant to “repay
to the county a reasonable amount to reimburse the county for the cost of
the defendant’s legal defense.” A.R.S. § 11–584(C)(3). When “determining
the amount and method of payment the court shall take into account the
financial resources of the defendant and the nature of the burden that the
payment will impose.” A.R.S. § 11–584(D). The failure of the court to make
specific findings or to consider defendant’s ability to pay does not rise to
the level of fundamental error. State v. Moreno-Medrano, 218 Ariz. 349, 353
¶ 14 (App. 2008); see also Trantor v. Fredrikson, 179 Ariz. 299, 300-01 (1994)
(“Although findings of fact and conclusions of law are certainly helpful on
appellate review, they do not go to the foundation of the case or deprive a
party of a fair hearing.”). Nor has Phillips shown the court could not have
assessed the fees imposed pursuant to A.R.S. § 11-584. Thus, Phillips has
failed to show fundamental error resulting in prejudice regarding the
award of attorneys’ fees.
XIV. Phillips Has Shown No Error In The Superior Court Partially
Precluding Testimony Of Kelly Goldsmith.
¶69 Phillips argues the court erred in precluding Kelly Goldsmith
from testifying to statements she made to the prosecutor regarding her
opinions after reviewing Young’s financial records. This court reviews a
ruling on the admissibility of evidence for an abuse of discretion. Escalante–
Orozco, 241 Ariz. at 274 ¶ 51.
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STATE v. PHILLIPS
Decision of the Court
¶70 In 2007, Goldsmith, a certified fraud examiner, was asked to
review Young’s ledgers and bank records as part of the murder
investigation. After doing so, Goldsmith met with the prosecutor and
expressed certain opinions. The prosecutor ultimately decided not to call
her as a trial witness, instead using a different financial analyst at trial.
During trial, Phillips informed the court that she intended to call Goldsmith
to testify regarding her conversations with the prosecutor. Phillips asserted
she was entitled to show the jury that Goldsmith’s inability to opine that
she paid Young for killing Triano was the reason the prosecutor elected to
use a different financial analyst at trial. The State objected, arguing
Goldsmith’s conversations with the prosecutor were hearsay and work
product. The court sustained the objection, ruling Phillips could question
Goldsmith about her opinions regarding the financial records and payment,
but could not ask about her conversations with the prosecutor.
¶71 Although the superior court based its ruling on the work
product doctrine, this court need not reach that issue because the proposed
testimony is inadmissible hearsay. State v. Carlson, 237 Ariz. 381, 387 ¶ 7
(2015) (noting this court will uphold a ruling if it is correct for any reason).
Goldsmith’s out of court statements to the prosecutor, offered for the truth
of the matter asserted, were hearsay. Ariz. R. Evid. 801(c). Unless
admissible pursuant to an exception to the rule against hearsay, hearsay is
inadmissible to prove the truth of the matter asserted. Ariz. R. Evid. 801(c),
802. Here, Phillips sought to introduce Goldsmith’s out-of-court statements
to the prosecutor to show “Goldsmith agreed with the defense theory that
Young’s ledgers were as likely proof of a fraud by him than they were
evidence of a payment scheme in a murder for hire.” Thus, the proposed
testimony was hearsay, and no exception to the rule against hearsay is
argued by Phillips to support its admission.
¶72 Contrary to Phillips’ contention, the superior court did not
impermissibly prevent her from presenting any admissible evidence
relevant to her defense. As the court made clear, Phillips was not precluded
from eliciting from Goldsmith whatever opinions she may have formed
regarding her review of Young’s financial records; it was only her hearsay
statements to the prosecutor that were inadmissible. Indeed, Phillips had
Goldsmith testify that based on her review of the records and she could not
make any conclusion as to why those transactions were going back and
forth between Young and Phillips. On this record, Phillips has shown no
reversible error by precluding the admission of Goldsmith’s hearsay
statements.
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STATE v. PHILLIPS
Decision of the Court
XV. Phillips Has Not Shown The Superior Court Erred In Denying Her
Motions To Dismiss Or Vacate Judgment Based On Her
Arguments That The State Rendered Her Indigent.
¶73 Phillips argues the superior court erred in denying her motion
to vacate judgment. The motion raised a variety of claims for relief, but
Phillips limits her argument on appeal to a claim of a denial of her Sixth
Amendment right to counsel of choice. Relying on the plurality in Luis v.
United States, 136 S. Ct. 1083 (2016), Phillips argues “the State deliberately
delayed extraditing [her] until after a civil suit had been filed against her, a
TRO based on A.R.S. § 13-2314.04(B) freezing her assets had been entered,
a $10,000,000 judgment had been entered in the civil suit and she lost her
$4,000,000 home to foreclosure,” thereby denying “her Sixth Amendment
right to counsel of her choice.”
¶74 The Luis plurality held the government’s pretrial seizure of
legitimate, untainted assets to secure a potential forfeiture violates the Sixth
Amendment where those assets are needed to retain counsel of choice. See
136 S. Ct. at 1088. The Luis plurality made plain that its analysis was what
“the Government” could, and could not, do in seizing assets of a criminal
defendant in a way that the defendant claimed “prevents her from paying
her lawyer” of choice. Id. at 1087. Unlike Luis, however, in this case, the
government did not seize Phillips’ assets. Instead, plaintiffs in a civil
wrongful death suit arising out of Triano’s murder obtained the assets,
making Luis inapplicable. See Estate of Lott v. O’Neill, 165 A.3d 1099 (Vt.
2017) (limiting Luis to government seizure of defendant’s assets). Phillips
cites no authority applying the Luis plurality in a context similar to this case.
¶75 To the extent Phillips argues a delay in her prosecution from
filing to her extradition resulted in her indigency, that claim overlooks the
fact that Phillips was not prohibited from voluntarily returning to face the
charges. Phillips’ own conduct –- in deciding to remain in Europe and
return only after being extradited –- not the State’s conduct, resulted in the
delay. As a result, Phillips has failed to show the State improperly rendered
her indigent.
28
STATE v. PHILLIPS
Decision of the Court
CONCLUSION
¶76 For the foregoing reasons, Phillips’ convictions and resulting
sentences are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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