State v. Bigger

• Decision Date: 24 May 2011
• Docket Number: No. 2 CA–CR 2007–0244.,2 CA–CR 2007–0244.
• Citation: 254 P.3d 1142,609 Ariz. Adv. Rep. 4,227 Ariz. 196
• Parties: STATE of Arizona, Appellee,v.Ronald Bruce BIGGER, Appellant.
• Court: Arizona Court of Appeals

227 Ariz. 196

254 P.3d 1142

609 Ariz. Adv. Rep. 4

STATE of Arizona, Appellee,

v.Ronald Bruce BIGGER, Appellant.

No. 2 CA–CR 2007–0244.

Court of Appeals of Arizona, Division 2, Department A.

May 24, 2011.

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani and Joseph L. Parkhurst, Tucson, Attorneys for Appellee.Osborn Maledon, P.A. By Larry A. Hammond, Timothy J. Eckstein, Michael S. Catlett, and Kathleen Brody O'Meara, Phoenix, Attorneys for Appellant.

OPINION

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.

Factual and Procedural Background

¶ 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 to commit first-degree murder. They were tried separately—Schwartz was tried first.¹ After a twenty-eight-day trial, the jury found Bigger guilty of both charges. He was sentenced to concurrent prison terms of natural life on both counts. This appeal followed.

Discussion

Venue

¶ 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.

Presumed Prejudice

¶ 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 not presumed where most coverage accurate and occurred more than year before trial); Blakley, 204 Ariz. 429, ¶ 15, 65 P.3d at 82 (prejudice not presumed where no evidence inflammatory language in articles affected proceedings and most coverage occurred near time of crime or pretrial stages); Bolton, 182 Ariz. at 300, 896 P.2d at 840 (prejudice not presumed where most reports factually based and repetitive).

¶ 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...