BRAMMER, Presiding Judge.
¶ 1 Ronald Bigger appeals from his convictions and sentences for first-degree murder and conspiracy to commit first-degree murder. He contends the trial court committed reversible error by denying his request for a change of venue. He also asserts the court erred by failing to preclude testimony offering probability analyses of deoxyribonucleic acid (DNA) evidence because the analyses relied on theories not generally accepted in the relevant scientific community, and by precluding evidence of third-party culpability. We affirm.
¶ 2 On appeal, we view the facts in the light most favorable to sustaining the verdicts. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App.2008). This case arises from the murder of D.S. on October 5, 2004. From 2001 to 2002, D.S. and Bradley Schwartz worked as pediatric ophthalmologists in a practice owned by Schwartz. In the fall of 2002, Schwartz stopped practicing medicine because the Arizona Medical Board was in the process of suspending his license to practice due to his substance abuse problems. After Schwartz's license was suspended, D.S. opened his own practice.
¶ 3 When Schwartz returned to practice following his suspension, his business was not doing well and he blamed D.S. He asked numerous people if they knew someone who would harm or kill D.S. for money. At one point he paid a friend to have her husband, D.H., "harm" D.S.
¶ 4 On the day D.S. was murdered, Bigger was seen at D.S.'s office around 4:00 p.m. Around 5:00 or 6:00 p.m., several people saw an unidentified man wearing blue "scrubs" around the parking area outside D.S.'s office. Sometime between 6:00 and 6:45 p.m., the clerk at a convenience store across the street from D.S.'s office complex saw Bigger in the store wearing blue "scrubs."
¶ 5 D.S. activated his office alarm at 7:26 p.m., suggesting he was leaving for the night. At 10:30 p.m., an employee in the office complex discovered D.S.'s body in the parking lot. An autopsy revealed that D.S. had died from multiple stab wounds. His wallet was found in his pants pocket. D.S.'s automobile was missing, but was discovered two days later.
¶ 6 That same evening Bigger arrived at a restaurant where Schwartz was dining with a companion. Bigger arrived in a taxi and Schwartz paid the fare. The companion recognized Bigger as someone she had met in Schwartz's office earlier in the day. During dinner Schwartz asked Bigger "how the scrubs worked out." They left the restaurant together and found hotel accommodations for Bigger, for which Schwartz paid. The next day Schwartz withdrew $10,000 from his bank account. Soon thereafter Bigger was seen carrying large amounts of cash.
¶ 7 Bigger and Schwartz were charged by indictment with first-degree murder and conspiracy
¶ 8 Bigger argues the trial court erred in denying his motion for a change of venue, which he renewed and supplemented before and during his trial. He alleges "extensive and prejudicial press coverage permeated the trial proceedings." When seeking a change of venue on the basis of pretrial publicity, "the moving party shall be required to prove that the dissemination of the prejudicial material will probably result in the party being deprived of a fair trial." Ariz. R.Crim. P. 10.3(b). We therefore must determine "`whether, under the totality of the circumstances, the publicity attendant to [Bigger's] trial was so pervasive that it caused the proceedings to be fundamentally unfair.'" State v. Cruz, 218 Ariz. 149, ¶ 13, 181 P.3d 196, 203 (2008), quoting State v. Blakley, 204 Ariz. 429, ¶ 13, 65 P.3d 77, 82 (2003). This analysis involves two inquiries: "(1) did the publicity pervade the court proceedings to the extent that prejudice can be presumed?; if not, then (2) did defendant show actual prejudice among members of the jury?" Cruz, 218 Ariz. 149, ¶ 14, 181 P.3d at 203, quoting State v. Murray, 184 Ariz. 9, 26, 906 P.2d 542, 559 (1995).
¶ 9 In denying the request for a change of venue, the court found much of the publicity had been duplicative; it was impossible to determine from the record how many people had been exposed to publicity in the case; most of the publicity was factual and non-inflammatory; most of the inaccurate publicity had related to insignificant matters; most of the outrageous commentary had been publicized in a newspaper of relatively modest circulation; the volume of publicity had decreased significantly since D.S. had been killed; and, some of the publicity had been generated by Bigger's and Schwartz's attorneys. Bigger contends, however, that the media coverage was so "extensive and outrageous" that the court should have presumed prejudice. We review a court's ruling on a motion for change of venue for an abuse of discretion. Cruz, 218 Ariz. 149, ¶ 12, 181 P.3d at 203.
¶ 10 The burden of establishing a presumption of prejudice is "very heavy." Cruz, 218 Ariz. 149, ¶ 20, 181 P.3d at 204. For a court to presume prejudice, "the publicity must be `so unfair, so prejudicial, and so pervasive that [the court] cannot give any credibility to the jurors' answers during voir dire." Id. ¶ 15, quoting State v. Bolton, 182 Ariz. 290, 300, 896 P.2d 830, 840 (1995). Media coverage must be so "extensive or outrageous that it permeated the proceedings or created a `carnival-like' atmosphere." Cruz, 218 Ariz. 149, ¶ 15, 181 P.3d at 204, quoting State v. Atwood, 171 Ariz. 576, 631, 832 P.2d 593, 648 (1992), overruled on other grounds by State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001). Or, the publicity must be so outrageous that it turned the trial into a "mockery of justice or a mere formality." State v. George, 206 Ariz. 436, ¶ 23, 79 P.3d 1050, 1059 (App.2003), quoting State v. Jones, 197 Ariz. 290, ¶ 44, 4 P.3d 345, 362 (2000). The mere exposure of jurors to publicity resulting in knowledge of the case will not create a presumption of prejudice when jurors can set aside acquired information and render a verdict based on the evidence. Cruz, 218 Ariz. 149, ¶ 14, 181 P.3d at 203-04.
¶ 11 A court will consider the effect of pretrial publicity and not merely its quantity. Id. at 156, 181 P.3d at 203. "[Courts] have been reluctant to presume prejudice if publicity was primarily factual and non-inflammatory or if the publicity did not occur close in time to the trial." Nordstrom, 200 Ariz. 229, ¶ 15, 25 P.3d at 727; see also Cruz, 218 Ariz. 149, ¶ 18, 181 P.3d at 204 (prejudice
¶ 12 Bigger directs us to several aspects of the pretrial publicity in his case, none of which, individually or collectively, justifies a presumption of prejudice. He refers to extensive press coverage that continued through his trial and included over 1,400 television news segments, 300 newspaper articles, and other electronic media coverage, including a "blog" and website. Although the volume of publicity here exceeds that which was at issue in various other Arizona cases, our supreme court repeatedly has stated the quantity of publicity alone will not justify a presumption of prejudice. See, e.g., Cruz, 218 Ariz. 149, ¶ 13, 181 P.3d at 203 ("We consider the effect of pretrial publicity, not merely its quantity."); Nordstrom, 200 Ariz. 229, ¶ 14, 25 P.3d at 727 ("In considering a motion for change of venue, the court is concerned with the effect of pretrial publicity, rather than its quantity."). Moreover, many of the media reports simply duplicated earlier material and did not mention Bigger. See State v. Bible, 175 Ariz. 549, 564, 858 P.2d 1152, 1167 (1993).
¶ 13 Bigger also alleges the pretrial publicity was inflammatory because of the nature of the crime and the inaccuracy of some reports. But Arizona cases have upheld the denial of a motion for a change of venue even when the alleged crime was heinous and the media had reported inaccurate information. See, e.g., Bible, 175 Ariz. at 560, 564, 858 P.2d at 1163, 1167 (no presumption of prejudice in case where defendant convicted of first-degree murder, kidnapping, and molestation of a child even though some reports included inadmissible evidence and inaccurate information). The trial court here determined most of the publicity was factual in nature and not inflammatory, and the record supports that determination. The inaccurate or inadmissible information reported by the media was an "exception[] to the largely factual information in the great bulk of the news reports," and most occurred well in advance of Bigger's trial. Id.; see also Nordstrom, 200 Ariz. 229, ¶ 17, 25 P.3d at 727-28 (no presumption of prejudice where most inflammatory, inaccurate, and inadmissible reports occurred many months before trial).
¶ 14 Bigger further argues the pretrial publicity was inflammatory because of the "salacious details" included in reports about Schwartz's personal life, controversy tangentially related to the case within the Pima County Attorneys Office, and reports containing repeated references to a "hit man." Again, the record supports the trial courts conclusion that most of the reports were factual, and many did not mention Bigger by name. See Jones, 197 Ariz. 290, ¶ 45, 4 P.3d at 362 (no presumption of prejudice where most articles factual and did not mention defendant directly). Although Bigger alleges "[m]uch of the reporting was sensationalized," on the record before us it does not appear the publicity gave rise to the "outrageous" or "carnival-like" atmosphere necessary for a finding of presumed prejudice, and therefore we conclude the court did not abuse its discretion in finding Bigger had failed to meet his burden of establishing that prejudice should be presumed. See Cruz, 218 Ariz. 149, ¶ 17, 181 P.3d at 204.
¶ 15 Bigger also argues his and D.S.'s relative status in the community supports a presumption of prejudice. Although a victim's status in the community may explain the extensive publicity surrounding a case, it is not, in and of itself, evidence that the publicity is prejudicial. In Cruz, the victim was an officer in the Tucson Police Department and he had been killed in the line of duty; much of the publicity focused on him. 218 Ariz. 149, ¶¶ 11, 16, 181 P.3d at 203, 204. Nevertheless, our supreme court in that case determined the extensive publicity had not been "outrageous" or "carnival-like" for the same reasons we already have noted in this case-because the publicity mostly was accurate and occurred well in advance of the trial. Id. ¶¶ 17-18.
¶ 17 Bigger further argues the number of jurors who had been exposed to publicity in the case is evidence the pretrial publicity was unfair, prejudicial, and pervasive. Eighty-four percent of the prospective jurors stated they recalled some publicity related to the case. Of those, thirty-five percent had formed an opinion about the guilt of Schwartz or Bigger. After strikes for cause, seventy percent of the remaining 150 potential jurors remembered some publicity about the case and fifteen percent of those had formed an opinion about the guilt of Schwartz or Bigger. Of the twenty-nine jurors from which the final jury and alternates were selected, eighty-three percent had been exposed to some publicity about the case.
¶ 18 In Bible, "nearly all" of the potential jurors had some knowledge of the case and half had formed an opinion about the defendant's guilt. 175 Ariz. at 563, 858 P.2d at 1166. Nevertheless, the court determined it was not a case "where the voir dire record itself shows that pervasive pretrial publicity so tainted the venire that jurors' statements under oath regarding their ability to set aside preconceptions and render a verdict on the evidence must be rejected." Id. at 565 n. 6, 858 P.2d at 1168 n. 6. Here, in comparison to Bible, fewer jurors had heard about the case and a lower percentage had formed an opinion about the defendant's guilt. The percentage of prospective jurors who had been exposed to publicity in this case and had formed an opinion about guilt is not so great as to have required the trial court to conclude the publicity was so pervasive it could not "give any credibility to the jurors' answers during voir dire." Cruz, 218 Ariz. 149, ¶ 15, 181 P.3d at 204, quoting Bolton, 182 Ariz. at 300, 896 P.2d at 840.
¶ 19 Based on the totality of the circumstances, the publicity surrounding Bigger's trial was not so pervasive as to render the trial fundamentally unfair. See Cruz, 218 Ariz. 149, ¶ 13, 181 P.3d at 203. Although voluminous, the publicity largely was factual and non-inflammatory, and most occurred well in advance of Bigger's trial. See Nordstrom, 200 Ariz. 229, ¶ 15, 25 P.3d at 727. We also note the trial court made substantial efforts to ensure a fair and unbiased jury was seated. See Jones, 197 Ariz. 290, ¶ 45, 4 P.3d at 362 (no presumption of prejudice where trial court "also took the precautionary steps necessary to choose an impartial jury"). The court repeatedly asked prospective jurors if they would have any difficulty setting aside anything they might have learned about Schwartz's trial and deciding Bigger's case only on the evidence presented. No juror expressed he or she would have any difficulty doing so. Therefore, the court did not abuse its discretion in determining prejudice could not be presumed.
¶ 20 If prejudice cannot be presumed, a defendant instead must show "the pretrial publicity was actually prejudicial and likely deprived him of a fair trial." Cruz, 218 Ariz. 149, ¶ 21, 181 P.3d at 204, quoting State v. Davolt, 207 Ariz. 191, ¶ 49, 84 P.3d 456, 471 (2004). Courts look at "the effect of the publicity on the objectivity of the jurors' actually seated." Cruz, 218 Ariz. 149, ¶ 21, 181 P.3d at 204, quoting Murray, 184 Ariz. at 26, 906 P.2d at 559. For a court to find actual prejudice, jurors must have formed preconceived notions of guilt they were unable to set aside. Blakley, 204 Ariz. 429, ¶ 16, 65 P.3d at 82.
¶ 21 In this case, during voir dire no seated juror admitted having formed any opinion on Bigger's guilt or innocence and, although many were familiar with publicity about the case, most had only vague recollections
¶ 22 Bigger has not established prejudice should be presumed from the pretrial publicity, nor has he established that publicity created actual prejudice. Therefore, the trial court did not abuse its discretion in denying his motion for a change of venue.
¶ 23 Bigger argues the trial court abused its discretion by denying his pretrial motion to preclude testimony of two state's witnesses offering probability analyses of DNA evidence because the analyses relied on theories he asserts are not accepted generally in the relevant scientific community. Arizona uses the Frye
¶ 24 Arizona Department of Public Safety (DPS) and a private laboratory, Reliagene Technologies, Inc. (Reliagene), analyzed numerous DNA samples from the crime scene and from D.S.'s car, including a swab containing a mixture of multiple persons' DNA from the car's radio knob, labeled in evidence as LX39. Bigger filed a pretrial motion to preclude any statistical probability evidence based on LX39,
¶ 25 The trial court conducted a three-day Frye hearing prior to trial, where Bigger presented testimony from experts including Dan Krane, Norah Rudin, and Laurence Mueller. Ranajit Chakraborty testified as an expert witness for the state. Krane testified there was "no generally accepted means of generat[ing] statistics for a low-level mixture" or in "low-copy number situations," which he defined as DNA samples of such little material that random effects complicate interpretation of the sample. Mueller testified there was no generally accepted method for interpreting mixed samples. Chakraborty disagreed, testifying that DNA mixtures such as LX39 often are analyzed in many United States laboratories and that it generally is acceptable to use established methods to interpret mixtures containing
¶ 26 At trial, Curtis Reinbold, a criminalist for DPS, testified about DNA analyses he had performed on LX39 using short tandem repeats (STR) testing. He determined LX39 included a mixture of DNA from more than one person, that D.S. was the major contributor of DNA, and that Bigger could not be excluded as the minor contributor. Reinbold produced three reports on his analyses. He first used the random man not excluded method (RMNE),
¶ 27 Reliagene also analyzed two swabs from LX39. Gina Pineda, assistant director and technical leader at Reliagene, testified that D.S. was the major contributor of DNA in the LX39 sample. Bigger's profile matched the three loci
¶ 28 On appeal, Bigger argues the trial court erred by failing to preclude testimony offering probability analyses of DNA evidence because the analyses relied on scientific principles not accepted generally in the relevant scientific community. Bigger argues "neither the LR approach nor the RMNE (modified product rule) approach is generally accepted" for calculating the probability of a match involving low copy number (LCN) DNA. He argues, for example, that LR fails to account for the stochastic (or random) effects that occur when analyzing small amounts of DNA.
¶ 29 LR, RMNE, and the modified product rule are DNA interpretation methods generally accepted in the relevant scientific community. LR has been acknowledged by Division One of this court as a Frye-compliant method for interpreting mixed DNA samples. See Garcia, 197 Ariz. 79, ¶¶ 1, 26, 3 P.3d at 1000, 1004 (also noting National Research Council (NRC) found "LRs should be admissible unless they are so unintelligible that they provide no assistance to a jury or so misleading that they are unduly prejudicial").
¶ 30 Further, Krane, Bigger's expert, conceded that neither the use of LR nor RMNE is scientifically controversial.
¶ 31 Bigger, however, argues these techniques are not accepted generally when applied to "DNA typing using samples containing minute amounts of DNA, also known as low copy number (LCN) samples." He contends such an application "is so nascent in its development that there is not . . . a consensus regarding the proper approach for calculating the probability of a match involving low copy number DNA." In addition to relying on his expert testimony, Bigger cites a number of scientific articles about LCN analysis.
¶ 32 Second, many of the articles Bigger cites present enhancements to existing methods for analyzing very small samples—such as using computer models to calculate probabilities for inconclusive loci—none of which was attempted in this case. E.g., Peter Gill et al., LoComatioN: A software tool for the analysis of low copy number DNA profiles, 166 Forensic Sci. Int'l 128, 132 (2006) (model "more powerful" than traditional methods and takes interpretation "a stage further").
¶ 33 Proposed enhancements to established methods, and the debates surrounding them, do not demonstrate that those established methods are no longer generally accepted under Frye. See State v. Superior Court, 149 Ariz. at 279, 718 P.2d at 181 (need not show universal acceptance or unanimity of scientific opinion). As Budowle acknowledged, "STR typing strategies are sufficiently sensitive to detect alleles
¶ 34 Although Krane testified there is no generally accepted means of generating statistical probabilities from a low-level mixture, Chakraborty testified that DNA mixtures are analyzed in "many laboratories" in the United States. Reinbold confirmed it is not uncommon to analyze DNA mixtures with differing concentrations and partial profiles, especially as the sensitivity of the analytical equipment has improved. Even the professional papers Bigger relied upon at the Frye hearing admit that although mixture interpretation is often challenging, it is "a routine. . . aspect of forensic DNA analysis," and common approaches include LR and exclusion probabilities like RMNE. Carll Ladd et al., Interpretation of Complex Forensic DNA Mixtures, 42 Croatian Med. J. 244, 244 (2001). Because it was possible to analyze LX39 using established methods satisfying Frye, the evidence was admissible subject to a foundational showing. See Bible, 175 Ariz. at 580, 858 P.2d at 1183 (If Frye is satisfied, scientific evidence is admissible "subject to a
¶ 35 Bigger also argues Reinbolds and Pineda's LR and RMNE formulas were flawed because they were based on partial information and the missing data could have excluded Bigger as a match.
¶ 36 Similarly, Bigger contends the calculation Reinbold based his probability statistics on was flawed because it "did not account for. . . the fact that Bigger could have been excluded" by a small peak he found at one locus. We already have determined that generally accepted methods permitted admission of this statistical evidence based only on the conclusive portions of a partial sample, and there was no evidence the excluded result at this locus was reliable enough to be included. Reinbold observed the small peak while running a test at forty-six RFU (relative fluorescence units), well below the laboratory's established threshold standard for determining which peaks are true DNA alleles, and "couldn't get it to repeat" despite several attempts. Therefore, Reinbold concluded it was not a "real DNA peak." As Pineda testified, any single allele above the threshold could have and would have excluded Bigger if it was different than Bigger's, but no such allele was found.
¶ 37 Moreover, whether Reinbold correctly implemented an otherwise generally accepted technique goes to the weight of the evidence, rather than its admissibility. See State v. Tankersley, 191 Ariz. 359, ¶ 21, 956 P.2d 486, 493 (1998) (reliability of particular result based on implementation, rather than reliability of technique itself, is "foundational consideration[] governed by ordinary evidentiary standards"), abrogated on other grounds by State v. Machado, 226 Ariz. 281, 246 P.3d 632 (2011). Once the trial court has determined a particular approach is accepted generally in the relevant scientific community, Bible, 175 Ariz. at 578, 858 P.2d at 1181, it is the jury's task to weigh the significance of any errors in implementing the approach to the facts of a case. State v. Van Adams, 194 Ariz. 408, ¶ 34, 984 P.2d 16, 27 (1999).
¶ 38 The state provided sufficient evidence to establish that the analytical techniques
¶ 39 Because LR, RMNE, and the modified product rule procedures are generally accepted techniques that satisfy Frye when utilized in this type of case to analyze DNA mixtures with major and minor components, the trial court did not abuse its discretion by admitting Reinbold's and Pineda's testimony regarding DNA probability calculations. Although the proper implementation of each method may depend on the facts of each case, those decisions go to the weight of such evidence and become the proper subject of cross-examination. See Tankersley, 191 Ariz. 359, ¶ 21, 956 P.2d at 493. We leave for another case the determination of whether there is a generally accepted method for achieving probability statistics from DNA templates significantly smaller than those observed here, or where analysts seek to interpret results below a laboratory's established minimum RFU threshold.
¶ 40 Bigger argues the trial court abused its discretion in precluding him from presenting the jury with evidence of a third party's culpability. Bigger sought to introduce evidence D.S.'s wife, Daphne, had murdered D.S., including evidence that D.S. recently had increased the benefit amount of his life insurance policy, of which his wife was the sole beneficiary, that she was not excluded as a contributor to DNA found in his vehicle, and that she had acted suspiciously when officers came to her home on the night he was murdered. Bigger also sought to introduce evidence D.H. was responsible for the murder, including testimony that coworkers, including K.E., saw D.H. around the time of the murder cleaning and discarding, as Bigger asserts, a "bloody" knife
¶ 41 The admissibility of evidence offered to prove third-party culpability is governed by Rules 401 through 403 of the Arizona Rules of Evidence.
¶ 42 "[E]vidence of a third party's culpability . . . is neither relevant nor subject to analysis under Rule 403, unless it tends to create a reasonable doubt that the defendant committed the offense." State v. Machado, 224 Ariz. 343, ¶ 17, 230 P.3d 1158, 1167-68 (App.2010), aff'd, 226 Ariz. 281, 246 P.3d 632 (2011). A defendant is not entitled to raise unfounded suspicions or to simply "throw strands of speculation on the wall and see if any of them will stick." Id. n. 11, quoting David McCord, "But Perry Mason Made It Look So Easy!": The Admissibility of Evidence Offered by a Criminal Defendant to Suggest that Someone Else is Guilty, 63 Tenn. L.Rev. 917, 984 (1996). "The trial court has considerable discretion in determining the relevance and admissibility of evidence, and we will not disturb its ruling absent a clear abuse of that discretion." State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260,
¶ 43 The trial court determined the evidence of Daphne's purported guilt was irrelevant by the above standard and we agree. The proffered evidence constitutes no more than "[v]ague grounds of suspicion." State v. Fulminante, 161 Ariz. 237, 252, 778 P.2d 602, 617 (1988). Moreover, the evidence had "trivial probative value once placed in context," see Machado, 224 Ariz. 343, ¶ 45, 230 P.3d at 1175, as the information Bigger sought to present easily could be explained.
¶ 44 The trial court also determined evidence Bigger had proffered of D.H.'s guilt was irrelevant because it raised only a possible ground of suspicion, and under Rule 403, Ariz. R. Evid., any relevance was outweighed substantially by confusion of the issues. The court did not abuse its discretion in excluding the evidence because the timing of the "knife incident" could not be connected sufficiently to the time of the murder and thus "it offer[ed] only a possible ground of suspicion against another." See State v. Prion, 203 Ariz. 157, ¶ 21, 52 P.3d 189, 193 (2002). After initial uncertainty, K.E. told detectives in a follow-up interview that she had seen D.H. cleaning and disposing of a knife before July 2004, months before the murder—timing of which she was certain based on when D.H. had left his position as manager at her workplace and her conversation with the new manager about her July birthday. The court determined there was "no credible evidence" that K.E.'s recollection of when the knife incident had occurred was incorrect, and the record does not establish this determination was erroneous.
¶ 45 The trial court also did not err in excluding testimony about D.H. having asked K.E. whether she would kill for money because it was hearsay and did not fall within any exception to the rule precluding the admission of hearsay evidence. Bigger urged the court to admit the statement under the state-of-mind exception in Rule 803(3), Ariz. R. Evid., as a statement against interest under Rule 804(b)(3), Ariz. R. Evid., or under the "catch-all" hearsay exception.
¶ 46 The statement similarly is inadmissible under the "catch-all" exception in Rule
¶ 47 For the foregoing reasons, we affirm.
CONCURRING: PHILIP G. ESPINOSA, Judge, and JOSEPH W. HOWARD, Chief Judge.
¶ 1 Arizona Department of Public Safety (DPS) recovered about 14 nanograms of DNA material in swab LX39. To analyze the swab, DPS amplified just over one nanogram of DNA.
¶ 2 In some contexts, scientists use broader definitions for LCN that may include mixtures. For example:
¶ 3 Testimony about whether LX39 was an LCN sample, and whether disputes about LCN presented in scholarly articles applied to this case, varied based on the definition applied. For example: