THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

OROZCO, Judge.

¶ 1 Bennie Bernard Masters appeals his convictions for attempted first degree murder and aggravated assault. Masters argues the trial court erred when it precluded the testimony of a defense witness and when it denied Masters' motion for mistrial. For the reasons that follow, we affirm Masters' convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶ 2 "We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998) (citation omitted). In our review of the record, we resolve any conflict in the evidence in favor of sustaining the verdict. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989) (citation omitted). We do not weigh the evidence, however; that is the function of the jury. See id.

¶ 3 The night of the incident, the victim encountered Masters and a woman ("Mary") while riding his bicycle. The victim had known Masters and his family for nearly eighteen years. The victim also knew Mary. Approximately two weeks earlier, Masters offered to make a trade for the victim's truck. When the victim rejected Masters' offer, Masters became "disgruntled."

¶ 4 The victim stopped his bicycle and spoke to Masters and Mary for a short time. He then rode away. A short time later, the victim again encountered Masters and Mary. When the victim stopped a second time, Masters told the victim he wanted to "go to the victim's home to use drugs." The victim declined Masters' repeated requests and eventually began to ride away. As the victim did so, Masters struck him from behind in the head with an unidentified object. When the victim turned to face Masters, Masters began to stab him repeatedly. Whenever Masters stopped and the victim attempted to move away, Masters attacked the victim again. Masters stabbed the victim multiple times in the head, neck, chest, back, face, left hand and abdomen. Masters also eviscerated the victim with a wound to his left side.

¶ 5 Masters and Mary fled when nearby residents responded to the victim's cries. Believing he may have killed the victim, Masters absconded to California shortly thereafter.

¶ 6 The victim identified Masters as his attacker to persons at the scene, to law enforcement officers and at trial. Mary also identified Masters as the victim's attacker. We discuss further details in the context of the issues addressed below.

¶ 7 The jury found Masters guilty of attempted first degree murder and aggravated assault. Masters does not contest the sufficiency of the evidence to support his convictions. Masters was sentenced to an aggravated term of thirty-five years' imprisonment for attempted first degree murder and a concurrent, aggravated term of twenty-five years for aggravated assault. Masters timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A (2003), 13-4031 (2010) and 13-4033 (2010).

DISCUSSION

Preclusion of the Witness

¶ 8 Masters first argues the trial court erred when it precluded the testimony of witness "Douglas." The court precluded the testimony of Douglas because Masters never disclosed him as a potential witness. We review the decision to preclude evidence due to untimely disclosure for abuse of discretion. State v. Rienhardt, 190 Ariz. 579, 586, 951 P.2d 454, 461 (1997) (citations omitted).

¶ 9 Douglas was a defense investigator who interviewed several witnesses prior to trial. Masters, however, never disclosed Douglas as a potential witness. During Masters' cross-examination of witness "MA," Masters asked MA if she told Douglas she saw a man and two women run from the scene.1 MA responded that she did not remember making such a statement to Douglas and she would not have done so because that is not what she saw. Masters did not attempt to further impeach MA at that time. That same day, Masters asked witness "SL" if she told Douglas she saw two women run from the scene. SL denied making this statement to Douglas. As with MA, Masters did not attempt to further impeach SL at that time. There is nothing in the record to indicate why Masters did not use transcripts of the interviews of MA or SL to attempt to refresh their memories or otherwise impeach them when they were on the stand.

¶ 10 At the end of that day, the trial court noted Masters attempted to impeach two witnesses with statements made to a person who had not been identified as a witness and who would not testify at trial — what the court termed "cross-examination by insinuation." Masters did not disagree with the court and did not claim he had formally or informally disclosed Douglas as a witness or that he ever intended to. He also did not indicate he intended to call Douglas to testify for any purpose, did not claim he intended to impeach MA or SL with any inconsistent statements in the future and did not otherwise attempt to correct or address any portion of the court's statement. Masters simply did not respond.

¶ 11 The State rested at the end of the following day. Until that time, there had been no further mention of Douglas. After the State rested and the court denied Masters' motion for judgment of acquittal, Masters announced he intended to call Douglas as a "rebuttal witness" the next day. Masters claimed he "informally" told the prosecutor he may need to call Douglas as a witness because Douglas had interviewed some of the witnesses. This conversation allegedly took place in the court lobby at some unidentified time prior to trial either before or after a pretrial conference. The prosecutor said he had no memory of any such discussion and was aware Douglas had interviewed witnesses only because those witnesses told the prosecutor Douglas had interviewed them. The prosecutor argued that had Masters disclosed Douglas as a witness, he would have interviewed Douglas prior to trial to learn what the witnesses told Douglas and determine whether they told Douglas anything different than what they told the State. The prosecutor also argued that if any discrepancies had been identified, the State would have interviewed those witnesses again.

¶ 12 The trial court noted Masters had not: disclosed Douglas as a witness, mentioned him at the final management conference when witnesses were discussed, or given the State a reason or the opportunity to interview him. The court also stated it did not inform the jury during jury selection that Douglas was a potential witness. Because a juror revealed mid-trial he was acquainted with defense counsel, the court was sensitive to the possibility a juror might also know Douglas. Finally, the State's witnesses had been released and, as noted above, the State had already rested its case.

¶ 13 The court found Masters knew Douglas could be a useful witness and so the need for his testimony was not unanticipated. The court also noted it granted Masters' pretrial motion to preclude the State's DNA evidence because the State did not timely disclose that evidence. The court stated, "I cannot see how I can justify precluding late disclosed DNA evidence, when it actually was disclosed prior to the trial, and allow the defense to call a witness that they disclose for the first time mid-trial. So it is ordered precluding the defense from calling [] Douglas as a witness."

¶ 14 Masters made an offer of proof in which he stated Douglas would testify SL told him she saw two women run away from the scene. Masters made no further offer regarding SL. Further, Masters made no offer of proof regarding what Douglas might say MA told him.

¶ 15 When an objection to the introduction of evidence is sustained, an offer of proof is ordinarily required to preserve the issue for appeal. State v. Towery, 186 Ariz. 168, 179, 920 P.2d 290, 301 (1996) (citation omitted). Because Masters made no offer of proof regarding MA, we address this issue only in the context of SL's allegedly inconsistent statement that she saw two women (not one) run from the scene. While an offer of proof may not be necessary when the nature of the excluded evidence is apparent, we will not speculate regarding what, if anything, Douglas might have testified to regarding MA. See id. at 178-179, 920 P.2d at 300-301.

¶ 16 A defendant must disclose the names of all witnesses the defendant intends to call at trial. Ariz. R. Crim. P. 15.2.c(1). "[T]he underlying principal of Rule 15 is adequate notification to the opposition of one's case-in-chief in return for reciprocal discovery so that undue delay and surprise may be avoided at trial by both sides." State v. Stewart, 139 Ariz. 50, 59, 676 P.2d 1108, 1117 (1984) (quoting State v. Lawrence, 112 Ariz. 20, 22, 536 P.2d 1038, 1040 (1975)). When a defendant fails to disclose a witness, preclusion may be an appropriate sanction. Ariz. R. Crim. P. 15.7.a(1). See also State v. Thompson, 190 Ariz. 555, 558, 950 P.2d 1176, 1179 (App. 1997). Before precluding evidence as a sanction for a disclosure violation, however, the trial court should consider:

¶ 17 The trial court did not abuse its discretion when it precluded the testimony of Douglas under these circumstances. Masters never identified Douglas as a potential witness. He did not hint Douglas might be a witness, even after the court told Masters he had impeached witnesses with statements made to a person who was not identified as a witness and who would not testify at trial. Masters waited until after another full day of trial to even suggest he would call Douglas, and did so only after the State had rested its case and released its witnesses. When Masters successfully argued inculpatory DNA evidence disclosed before trial should be precluded because it was not timely disclosed, he argued, "If we are going to give the rules of procedure meaning, we have got to give all parts of the rule meaning; otherwise, they are just these kinds of loose guidelines, and nothing that we can actually really rely on[.]" We find this argument equally persuasive as it relates to Douglas' testimony.

¶ 18 That the trial court did not expressly consider the individual factors identified in Meza does not change our analysis. First, Masters did not object to the trial court's failure to address on the record the factors identified in Meza and never suggested the court do anything but allow him to call Douglas as a witness once the State had a chance to interview him. Further, regarding the vitality of the evidence to Masters' defense, whether SL saw two women running from the scene did not, as Masters argues, go to the heart of his defense. Masters' defense was that he was in California the date of the incident and the victim misidentified another man as him. As noted above, the victim had known Masters and his family for years. The victim dealt with Masters face to face approximately two weeks before the incident, spoke twice with Masters face to face the night of the attack and was "eye on eye" with Masters during the attack. The jury chose to believe the victim. Whether SL saw a second woman run from the scene was of little consequence to Masters' defense.

¶ 19 The sanctionable conduct may have also significantly prejudiced the State. Masters denied the State the opportunity to interview Douglas prior to trial to determine whether there were any discrepancies between what the witnesses told Douglas and what they told the State. Consequently, Masters denied the State the opportunity to determine whether there were any genuine discrepancies in the witnesses' accounts and, if so, to clarify them. As explained more fully below, to require the State to do all of these things after it had rested and its witnesses were released would have disrupted the proceedings to a significant degree.

¶ 20 As for the third prong of Meza, there is nothing in the record to suggest that Masters' failure to disclose Douglas was willful or motivated by bad faith. Regarding whether a less stringent sanction would have sufficed, Masters proposed no less stringent sanction to the trial court. While the State could have interviewed Douglas prior to his testimony, the State would also have had to re-interview witnesses, determine whether there were any genuine discrepancies in their statements or whether any discrepancies were simply a misunderstanding, reopen its case in chief, recall witnesses who had already testified and been released and essentially retry a significant portion of the State's case. This would have caused significant disruption to the proceedings and was not a viable "less stringent" solution.

¶ 21 Finally, regardless of SL's testimony, Masters introduced other evidence a second woman was present. MA testified that when she heard the commotion outside her home, she heard a woman yell "Colleen" and that she asked the victim who Colleen was. More importantly, a detective testified the victim told MA a woman named Colleen was with Masters and Mary during the attack. We also note that because the State did not object to the impeachment of SL and the trial court did not instruct the jury to disregard the question, Masters had the benefit of his "impeachment" when he insinuated SL made statements to Douglas which contradicted her trial testimony. Regardless of whether it was done properly, Masters called into question SL's credibility regarding whether she saw a second woman.

¶ 22 For these reasons, the trial court did not abuse its discretion when it precluded the testimony of Douglas under these circumstances.

Denial of the Motion for Mistrial

¶ 23 Masters also argues the trial court erred when it denied his motion for mistrial after the victim briefly testified about an undisclosed prior act. We review the denial of a motion for mistrial for clear abuse of discretion. State v. Murray, 184 Ariz. 9, 35, 906 P.2d 542, 568 (1995) (citation omitted).

¶ 24 After the victim testified about Masters' attempt to make a trade for the victim's truck, the State asked, "Okay. Then, that was the last time [Masters] had been to your house, to your knowledge, prior to him seeing you the night of the [incident]?" The victim responded, "No. He come by [sic] with Mary one time, and he grabbed a pellet gun and pointed it at me." The trial court sustained Masters' immediate objection and instructed the jury to disregard the victim's statement about the pellet gun. The court then stated the question was confusing and instructed the State to rephrase the question. Before the State could do so, Masters moved for a mistrial. The court told Masters he could make a record at a later time. The court instructed the jury a second time to disregard the answer. The State then attempted to minimize the reference to the incident with the pellet gun by asking, "He had a pellet gun, he picked it up; is that right? Is that all that happened when you saw him the night of the [incident], by his father's house, [Masters] told you he had been to your house looking for you?" The victim responded in the affirmative.

¶ 25 The trial court later addressed Masters' motion for mistrial. Masters argued the pellet gun incident was irrelevant and constituted inadmissible character evidence offered only to show that he was a bad person who acted in conformity with his prior acts. Masters further argued that regardless of relevance, the prior incident was not admissible because the State had not disclosed it. See Ariz. R. Crim. P. 15.1.b(7). The State argued it did not expect the victim to refer to the pellet gun and the reference was not even responsive to the question. The State further pointed out it attempted to minimize the reference when it indicated Masters had simply picked up a pellet gun in the next question.

¶ 26 The trial court stated it agreed with Masters that the evidence was inadmissible because it had not been disclosed. The court noted, however, that the victim made a single reference to the incident and the jury was instructed to disregard that testimony. The court offered to give a curative instruction, but held there was no basis for a mistrial. Masters did not request a curative instruction.

¶ 27 "When a witness unexpectedly volunteers an inadmissible statement, the remedy rests largely within the discretion of the trial court." State v. Marshall, 197 Ariz. 496, 500, ¶ 10, 4 P.3d 1039, 1043 (App. 2000) (citation omitted). We will reverse the trial court's decision only if it is "palpably improper and clearly injurious." Murray, 184 Ariz. at 35, 906 P.2d at 568 (quoting State v. Walton, 159 Ariz. 571, 581, 769 P.2d 1017, 1027 (1989)). The trial court is in the best position to determine whether a particular incident requires a mistrial as it is aware of the atmosphere of the trial, the circumstances surrounding the incident, the manner in which any objectionable statement was made, and its possible effect on the jury and the trial. State v. Koch, 138 Ariz. 99, 101, 673 P.2d 297, 299 (1983) (citations omitted).

¶ 28 The trial court did not abuse its discretion when it concluded that the single nonresponsive and wholly unexpected reference to the incident with a pellet gun did not warrant a mistrial. The court could reasonably determine this isolated incident would have no effect on the trial or the jury's consideration of the evidence. Further, the trial court twice instructed the jury to disregard the statement and the final instructions told the jurors they must not consider any stricken testimony and must disregard any question or answer for which an objection was sustained. "Juries are presumed to follow their instructions." State v. Dunlap, 187 Ariz. 441, 461, 930 P.2d 518, 538 (App. 1996) (citations omitted).2

IV. Conclusion

¶ 29 Finding no error, we affirm Masters' convictions and sentences.

DIANE M. JOHNSEN, Presiding Judge, PHILIP HALL, Judge, concurring.