(Cite as 175
Arz. 549, 858 P.2d 1152)
STATE of Arizona, Appellee,
Richard Lynn BIBLE, Appellant.
Supreme Court of Arizona, In Banc.
Aug. 12, 1993.
FELDMAN, Chief Justice.
Defendant Richard Lynn Bible was convicted of first degree murder,
kidnapping, and molestation of a child under fifteen years of age. He was
sentenced to death for the murder conviction and to consecutive twenty-two
year terms for the other convictions. Appeal to this court is automatic.
Ariz.R.Crim.P. 26.15, 31.2(b). We have jurisdiction pursuant to Ariz.
Const. art. VI, § 5(3), Ariz.R.Crim.P. 31, and A.R.S. § 13-4031.
FACTS AND PROCEDURAL HISTORY
Because the guilty verdicts are primarily based on circumstantial
evidence, [FN1] we set forth the facts in some detail. In late May 1987,
Defendant was released from prison after serving a sentence imposed in 1981
for kidnapping and sexual assault. At all times relevant to this case,
Defendant lived in Flagstaff, Arizona.
FN1. There is, of course, no distinction between the probative value of
direct and circumstantial evidence. See, e.g., State v. Harrison, 111 Ariz.
508, 510, 533 P.2d 1143, 1145 (1975); State v. Green, 111 Ariz. 444, 446,
532 P.2d 506, 508 (1975); State v. Harvill, 106 Ariz. 386, 391, 476 P.2d
841, 846 (1970).
In April 1988, the Coconino County Sheriff seized a dark green and white
GMC "Jimmy" (or "Blazer-type") vehicle in Sedona, Arizona. The GMC had
been used to deliver newspapers. A deputy who drove it to Flagstaff noticed
rubber bands in the GMC, as well as damage to the left rear quarter panel.
Another officer noticed the damaged quarter panel and saw bags of rubber
bands in the vehicle. The Sheriff stored the vehicle in a fenced impound lot
near Flagstaff, close to Sheep Hill. On June 5, 1988, Defendant stole the
GMC from the impound lot. A police officer saw the vehicle parked in
Flagstaff later that day.
The next day, June 6, 1988, shortly after 10:30 a.m., the victim, a nine
year- old girl, began bicycling from where her family was staying in
Flagstaff to a ranch a mile away. The victim's family passed her while
driving to the ranch. When the child did not arrive at the ranch, her family
began to search and found her bicycle by the side of the road. Unable to
locate the girl, the victim's mother called the police at 11:21 a.m.
The Flagstaff police arrived within minutes; they called in a helicopter,
set up roadblocks, and alerted the Federal Bureau of Investigation ("FBI").
The victim's mother told the police that she saw two vehicles on her way to
the ranch. One was a royal blue Blazer-type vehicle. While at the ranch,
she saw this same vehicle going the opposite direction at a high rate of
speed. She described the driver as a dark-haired, dark-complected Caucasian
male, mid-to- late twenties, possibly wearing a white T-shirt. He had
looked at her intently.
**1164 *561 That same day, Defendant's brother was at his home near Sheep
Hill. Defendant arrived there shortly before 1:00 p.m., driving a dark
green or dark silver, white-top Blazer-type vehicle with a dented left
bumper--the vehicle Defendant had stolen. Defendant was wearing levi pants,
a plaid shirt, a camouflage baseball-type cap, and boots. He told his
brother that the Blazer belonged to a friend. After Defendant left, his
brother--who thought that Defendant had been stealing from him--called the
police and described the vehicle.
Shortly thereafter, a detective realized that the victim's mother's
description of the Blazer-type vehicle and its driver approximated Defendant
and the GMC Jimmy. At about 5:00 p.m., the GMC was discovered missing from
the impound lot. At 6:20 p.m., police officers saw Defendant driving the
GMC-- although it had been painted a different color. The officers
attempted to stop Defendant, and a high-speed chase began. When finally
cornered, Defendant ran from the vehicle and hid.
Using a tracking dog, officers found Defendant hiding under a ledge,
camouflaged with twigs, leaves, and branches. When arrested, Defendant was
wearing a "levi-type" jacket, jeans, a plaid shirt, boots, but no underwear.
Defendant also had wool gloves, and police found a baseball-type cap nearby.
Police also found a large folding knife where Defendant was hiding and
another knife in one of his pockets.
Within hours after his arrest, Defendant confessed to stealing the GMC the
previous day and painting the vehicle two hours before his arrest, but
denied being in the area of the abduction. Defendant had planned to drive
the GMC to Phoenix, but a helicopter had him "pinned down." When Defendant
was booked, the police confiscated his clothing. Defendant was incarcerated
for the rest of the relevant time period.
In the GMC, police found a green blanket and numerous rubber bands but no
rubber band bags. The steering column had been cut open and one piece of
metal had fallen to the floorboard. The GMC contained a case of twenty
50-milliliter bottles of "Suntory" vodka with two bottles missing. In the
console was a wrapped cigar broken in two places, a "Dutchmaster" cigar
wrapper and band were in the ashtray, and Carnation "Rich" hot chocolate
packets were in the vehicle. Investigators found blood smeared inside and
under the GMC, although testing did not reveal whether the blood was human.
Following a large and unsuccessful police search, hikers accidentally found
the victim's body near Sheep Hill nearly three weeks after her
disappearance. Police secured the area and later videotaped the scene and
processed evidence. The victim's naked body was hidden under a tree, mostly
covered with branches, with her hands tied behind her back with a shoelace.
Police found one of the victim's sneakers, without a shoelace, near the
body. The victim's panties were in a tree nearby.
An unwrapped, unsmoked cigar with two distinctive breaks in the middle was
on the ground near the body. The cigars near the body and in the GMC looked
very similar, had consistent breaks, and had identical seals. Microscopic
analysis showed that the cigars had similar thresh cuts and tobacco
mixtures. The cigars also had similar sieve test results and pH values.
Although the nicotine values and ash content were slightly different, the
cigars were from the same lot and were similar to, and consistent with,
tobacco residue found in Defendant's shirt pockets.
An empty ten-pack box of Carnation "Rich" hot chocolate--matching the
packets in the GMC--was near the body. Also nearby were two empty
50-milliliter "Suntory" vodka bottles--one approximately fifty feet from the
body. Testing, which revealed no fingerprints, washed away the lot numbers
on these empty bottles. In all other respects, these bottles were identical
to the full bottles found in the GMC.
Rubber bands were everywhere: on a path near the body; over, on, and
under the body; in the tree where the panties were hanging; near the
victim's other clothing; in the brush covering the body; in a tree above
the body; and under a tree where one of the victim's shoes was found.
**1165 *562 Visual observation as well as testing revealed that the rubber
bands in the GMC were round rather than oblong and were identical to those
found near the body. A rubber band bag containing a few rubber bands was
found five feet from the body.
A patch of blood-matted grass was near the body. Testing revealed that
this blood was human and was phosphoglucomutase ("PGM") subtype 2+, the same
subtype as the victim's blood. Luminol spraying revealed a faint blood
trail leading from the blood-matted grass to the body. Testing showed blood
on the top of the branches covering the body.
Near the body, police found a piece of metal that fit the GMC's steering
column. In Flagstaff, at the location where the GMC was seen parked the day
before the victim disappeared, police found another piece of metal from the
vehicle's steering column. The three metal pieces (found inside the GMC,
near the body, and where the GMC had been parked) fit together like jigsaw
puzzle pieces. An investigator concluded that the three metal pieces were
part of the GMC's steering column.
An autopsy revealed that portions of the body (including the head and
genital area) were severely decomposed, consistent with having been on Sheep
Hill for approximately three weeks. Multiple skull fractures and a broken
jawbone indicated that blows to the head caused the victim's death. The
blood-matted grass near the body was consistent with the blows being
inflicted there. Although the body was naked with the hands tied, suggesting
sexual molestation, no sperm or semen was found. The physician performing
the autopsy took pubic hair and muscle samples.
Near the body were several clusters of golden brown hair approximately six
to ten inches long. Although the hair found at the scene appeared to be
lighter in color, it was microscopically similar to the victim's hair and
could have come from her. In one of the locks of hair, an examiner found a
pubic-type hair. This pubic-type hair was similar to Defendant's pubic hair
samples. Long brown hair found on Defendant's jacket, shirt, and in his
wallet were similar to the victim's hair and could have come from her.
Investigators found hair similar to Defendant's on a sheet used to wrap the
body, and hair found on the victim's T-shirt was similar to Defendant's.
Hair on a blanket in the GMC was similar to the victim's, with a total of
fifty-seven hairs in the GMC being similar to the victim's hair.
Some of the hair found near the body, as well as the hair on Defendant's
shirt and in his wallet, was cut on one side and torn on the other. The
investigator had never before seen such a cut/tear pattern but was able to
duplicate the pattern by using the knives Defendant possessed when arrested
as well as other sharp knives. Twenty-one of the twenty-two hairs on
Defendant's jacket had similar cut/tears.
Fibers found at Sheep Hill were identical to the GMC's seat covers, and
similar to fibers from Defendant's jacket lining and the green blanket in
the GMC. Fibers in the lock of hair containing the pubic-type hair were
similar to fibers from Defendant's jacket. Fibers similar to those from the
green blanket in the GMC were located in the branches covering the body.
Microscopically, a green fiber on the sheet used to wrap the body was
similar to fibers from the green blanket. A blue or purple fiber on the
shoelace tying the victim's hands was similar to the lining in Defendant's
Investigators found blood on Defendant's shirt, pants, and boots. The
spatter pattern on the shirt was consistent with beating force. Testing
could not determine whether the blood on his boots was human but revealed
that the blood on Defendant's shirt was human and PGM 2+ subtype, the same
subtype as the victim's blood. Less than three percent of the population
has PGM 2+ subtype. Because Defendant is PGM 1+ subtype, the blood could
not have been his. Testing performed by Cellmark Diagnostic Laboratories,
Inc., showed that the deoxyribonucleic acid ("DNA") in the blood on
Defendant's shirt and the victim's DNA were a "match." Cellmark concluded
that the chances were one in fourteen billion or, more conservatively, one
in sixty **1166 *563 million that the blood on Defendant's shirt was not the
While still in jail for stealing the GMC, Defendant was charged with first
degree murder, kidnapping, and molestation of a child under the age of
fifteen. In April 1990, a jury convicted Defendant on all charges and
Defendant was sentenced to death on the murder conviction. On appeal,
Defendant raises a variety of issues which we consider in turn. [FN2]
FN2. Defendant has withdrawn his ineffective assistance of counsel claim.
Thus, we do not address that claim and nothing in this opinion should be
construed as precluding any ineffective assistance of counsel claim
Defendant may make in the future.
A. Defendant's right to a fair and impartial jury and a fair trial
1. Whether the trial court erred in refusing to change venue
Approximately fifteen months before trial, Defendant filed his first motion
to change the place of trial because of pretrial publicity. See
Ariz.R.Crim.P. 10.3. This motion summarized dozens of news items from June
1988 to February 1989. These items state, inter alia, that Defendant
committed other crimes, failed a polygraph test, and attempted to escape,
and refer to other evidence deemed inadmissible at trial. The court denied
this change of venue motion more than a year before trial. Defendant later
moved to reconsider and the court heard argument the day before trial
began. That motion was denied without prejudice to renew if it became
obvious that a fair trial could not be had. Defendant did not renew the
motion. On appeal, Defendant claims that the judge erred in refusing to
Because of the extensive pretrial publicity and the size of Flagstaff and
Coconino County (respective populations of approximately 45,000 and
100,000), nearly all potential jurors had some knowledge of the case. On
February 26, 1990, 187 potential jurors completed written questionnaires.
Of these 187, almost all had read or heard about the case, approximately
two-thirds had discussed the case, and approximately one-half had an opinion
about Defendant's guilt. [FN3] Of the jurors that heard the case, all had
read or heard something about the case, more than half were familiar with
state investigators, half had discussed the case, and two jurors had a
"qualified" opinion as to guilt at the time they answered the jury
FN3. Such opinions were either qualified or unqualified, with an unqualified
opinion defined as fixed, settled, and unchangeable. A potential juror had
a qualified opinion if he or she could "set aside that opinion and render a
verdict based solely on the evidence presented in court."
b. Should prejudice be presumed?
 Defendant argues that "outrageous" pretrial publicity dictates that
prejudice requiring a change of venue should be presumed--making a showing
of actual prejudice unnecessary. Juror exposure to information about an
offense charged ordinarily does not raise a presumption that a defendant was
denied a fair trial. Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031,
2036, 44 L.Ed.2d 589 (1975). If, however, a defendant can show pretrial
publicity so outrageous that it promises to turn the trial into a mockery of
justice or a mere formality, prejudice will be presumed without examining
the publicity's actual influence on the jury. See, e.g., id.; Rideau v.
Louisiana, 373 U.S. 723, 726-27, 83 S.Ct. 1417, 1419-20, 10 L.Ed.2d 663
(1963); State v. Atwood, 171 Ariz. 576, 631, 832 P.2d 593, 648 (1992),
cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993); State
v. Befford, 157 Ariz. 37, 39, 754 P.2d 1141, 1143 (1988).
 Clearly, there was extensive pretrial publicity; the record on appeal
contains approximately 130 pretrial news stories. The frequency of these
items, however, varied greatly. Approximately eighty-five items appeared
from June to December 1988. From January 1989 to the beginning of trial
(fourteen months) approximately **1167 *564 fifty items appeared. [FN4]
Thus, the frequency in 1988 was approximately three items per week while the
frequency in 1989 and 1990 was less than one item per week.
FN4. The items from March 1989 to the time of trial were not presented to
the trial court. They are, however, a part of the record on appeal. See
Order, January 21, 1992. This order also refused to strike from the
record articles published during trial. Because a motion to change venue
due to pretrial publicity must be made before trial, Ariz.R.Crim.P. 10.3(c),
events occurring during trial usually are not relevant in addressing the
motion. Although such events may be relevant in determining whether a
defendant received a fair trial, see infra § A(2), we do not consider the
articles appearing during trial in assessing Defendant's motion to change
Some reports are duplicates, containing similar material published in
different newspapers; some do not mention Defendant; and several state
that Defendant was not a suspect or not a strong suspect. For the most
part, the reports are factually based, and nearly all of the factual
information reported in the articles was admitted at trial.
Some items, however, discuss inadmissible evidence, are inaccurate, or
approach the "outrageous" standard used in determining presumptive
prejudice. For example, a June 10, 1988, article has the Sheriff stating
that Defendant " 'flunked' a lie detector test." Defendant is described as
a convicted "child molester" who committed "child rape"--incorrect
descriptions of his 1981 sexual assault conviction. [FN5] A June 28, 1988,
article reported a Phoenix-area legislator suggesting the death penalty for
child molesters "even if it means the execution 'of a few innocent people.'
" The article, however, added that the suggestion prompted protests, that
the proposal was unconstitutional, and contained another legislator's
response criticizing the suggestion as " 'an affront and outrageous' " and
not reflecting appropriate legislative " 'wisdom and leadership.' " A
January 28, 1990, article has an inmate stating that Defendant admitted
involvement in the victim's abduction. The article adds, however, that the
inmate recanted and repeatedly changed his story.
FN5. The significance of such errors, however, is uncertain. Indeed,
defense counsel similarly erred when, at hearings in May and June 1989, he
stated that Defendant's 1981 conviction involved "rape" and made reference
to "child rape" and "child rapist."
 There are other articles that might have posed a serious threat to
Defendant's fair trial rights. These items, however, were months apart and
came months before trial began. Cf. Patton v. Yount, 467 U.S. 1025, 1034,
104 S.Ct. 2885, 2890, 81 L.Ed.2d 847 (1984) ("That time soothes and erases
is a perfectly natural phenomenon, familiar to all."). In addition, they
are exceptions to the largely factual information in the great bulk of the
news reports. See United States v. De La Vega, 913 F.2d 861, 865 (11th
Cir.1990) (no presumed prejudice when jurors had knowledge of facts as 330
articles, with few exceptions, were largely factual), cert. denied, 500 U.S.
916, 111 S.Ct. 2011, 114 L.Ed.2d 99 (1991); United States v. Angiulo, 897
F.2d 1169, 1181 (1st Cir.) ("Although the news coverage was extensive, it
largely was factual in nature, summarizing the charges against the
defendants and the alleged conduct that underlay the indictment."), cert.
denied, 498 U.S. 845, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990).
 The burden to show that pretrial publicity is presumptively prejudicial
clearly rests with the defendant and is "extremely heavy." Coleman v. Kemp,
778 F.2d 1487, 1537 (11th Cir.1985), cert. denied, 476 U.S. 1164, 106 S.Ct.
2289, 90 L.Ed.2d 730 (1986). In varying procedural contexts, appellate
courts have found that the issue of presumed prejudice is a question of fact
or a mixed question of law and fact resulting in standards of review
including "manifest error," "clearly erroneous," and others. See id. at
1537 & nn. 17, 18 (citing cases). Even were we to review the trial court's
ruling de novo, however, this record does not lead us to conclude that
prejudice must be presumed.
 Due in large part to the findings required, courts rarely presume
prejudice due to outrageous pretrial publicity. Nebraska**1168 *565 Press
Ass'n v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 2800, 49 L.Ed.2d 683
(1976) (Burger, C.J., opinion of the Court). To presume prejudice, we must
necessarily disregard the results of voir dire examination as well as the
circumstances surrounding pretrial proceedings and reach our own conclusion
based on the totality of the circumstances from the entire record. See
Pamplin v. Mason, 364 F.2d 1, 6 (5th Cir.1966). We must also find that the
defendant has shown "inflammatory and prejudicial pretrial publicity that so
pervaded the community as to render virtually impossible a fair trial before
an impartial jury." Coleman, 778 F.2d at 1540. In short, to presume
prejudice, we must necessarily decide that the publicity was so unfair, so
prejudicial, and so pervasive that we cannot give any credibility to the
jurors' answers during voir dire affirming their ability to decide the case
The circumstances in this case fall short of those rare and unusual cases
where this difficult showing has been made. See, e.g., Rideau, 373 U.S. at
726-727, 83 S.Ct. at 1419-20 (televised "confession" seen by many potential
jurors); Coleman, 778 F.2d at 1538-1543 (overwhelming publicity in county
with population of 7000); Isaacs v. Kemp, 778 F.2d 1482, 1483-84 (11th
Cir.1985) (companion case to Coleman ); United States v. Denno, 313 F.2d
364, 366-67, 372 (2d Cir.) (en banc) (6-3 decision) (extensive pretrial
publicity including defendant's confession; "[t]he publicity was in its
nature highly inflammatory, in volume great, and accessibility universal."),
cert. denied, 372 U.S. 978, 83 S.Ct. 1112, 10 L.Ed.2d 143 (1963); cf.
Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)
(overwhelming pretrial publicity, coupled with publicity at trial and
outrageous trial conduct, required reversal). These cases show more in the
way of inaccurate as well as extremely prejudicial pretrial publicity than
does the totality of the record in this case. These cases also demonstrate
the media's successful and sometimes relentless attempt to whip up hysteria
and passion in the community-- something the present case lacks. And at
least Sheppard contains something else lacking in this case--the media
successfully influencing law enforcement officers and court personnel as
well as the court itself. See Sheppard, 384 U.S. at 337, 354-58, 362, 86
S.Ct. at 1518-20, 1522.
Nor is the substance of the pretrial publicity in the present case
comparable to that in Rideau, where a local television station thrice showed
the defendant's confession.
"In Rideau the defendant had 'confessed' under police interrogation to the
murder of which he stood convicted. A 20-minute film of his confession was
broadcast three times by a television station in the community where the
crime and the trial took place. In reversing, the Court did not examine the
voir dire for evidence of actual prejudice because it considered the trial
under review 'but a hollow formality'--the real trial had occurred when tens
of thousands of people, in a community of 150,000, had seen and heard the
defendant admit his guilt before the cameras."
Atwood, 171 Ariz. at 631, 832 P.2d at 648 (quoting Murphy, 421 U.S. at 799,
95 S.Ct. at 2035-36); see also Coleman, 778 F.2d at 1491-1537.
On this record, we cannot conclude that the trial was "utterly corrupted"
by pretrial publicity, Murphy, 421 U.S. at 798, 95 S.Ct. at 2035, and
therefore will not presume prejudice, see Atwood, 171 Ariz. at 631, 832 P.2d
at 648; State v. LaGrand, 153 Ariz. 21, 34, 734 P.2d 563, 576, cert. denied,
484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987); State v. Greenawalt,
128 Ariz. 150, 164, 624 P.2d 828, 842, cert. denied, 454 U.S. 882, 102 S.Ct.
364, 70 L.Ed.2d 191 (1981). [FN6] Accordingly, we turn **1169 *566 to the
issue of whether the record demonstrates actual prejudice.
FN6. Nor is this 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. Compare Irvin v. Dowd, 366 U.S.
717, 727-28, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751 (1961) (268 of 430, or 62
percent, of venire excused for cause due to fixed opinion of guilt caused
court to presume bias and disregard statements made in voir dire) with
Murphy, 421 U.S. at 802-03, 95 S.Ct. at 2037-38 (26 percent of venire
excused for cause due to opinion of guilt did not provide reason to doubt
remaining juror's assurances of impartiality) and Simmons v. Lockhart, 814
F.2d 504, 511-12 (8th Cir.1987) (16 percent of venire excused for cause due
to fixed opinion of guilt did not provide reason to doubt remaining juror's
assurances of impartiality), cert. denied, 485 U.S. 1015, 108 S.Ct. 1489, 99
L.Ed.2d 717 (1988). In this case, 23 percent of the venire had a fixed, or
unqualified, opinion of guilt and were excused for cause.
c. Does the record demonstrate that the pretrial publicity caused actual
prejudice likely to have deprived Defendant of a fair trial?
 Absent presumed prejudice, the focus is whether the potential
jurors "could not judge impartially the guilt of the defendant." Yount,
467 U.S. at 1035, 104 S.Ct. at 2891. When a motion to change venue is based
on actual prejudice resulting from pretrial publicity, the defendant must
show that the "prejudicial material will probably result in the [defendant]
being deprived of a fair trial." Ariz.R.Crim.P. 10.3(b); see also LaGrand,
153 Ariz. at 34, 734 P.2d at 576. The purpose of this rule is to ensure an
impartial jury as guaranteed by the United States and Arizona
Constitutions. See U.S. Const. amend. VI, XIV; Ariz. Const. art. II, §§ 4,
24; Ross v. Oklahoma, 487 U.S. 81, 86, 108 S.Ct. 2273, 2277, 101 L.Ed.2d 80
(1988); Befford, 157 Ariz. at 39, 754 P.2d at 1143. Our review of this
issue is for an abuse of discretion. See State v. Salazar, 173 Ariz. 399,
406, 844 P.2d 566, 573 (1992); cf. Mu'Min v. Virginia, 500 U.S. 415, ----,
111 S.Ct. 1899, 1906, 114 L.Ed.2d 493 (1991) (deference to trial court's
decision is particularly appropriate when objective trial judge "sits in the
locale where the publicity is said to have had its effect, and brings to his
evaluation of any such claim his own perception of the depth and extent of
news stories that might influence a juror.").
 Although almost all of the potential jurors had heard something
about the case, the relevant inquiry is the effect of publicity on a juror's
objectivity, not the mere fact of publicity. LaGrand, 153 Ariz. at 34, 734
P.2d at 576; see also State v. Smith, 160 Ariz. 507, 512, 774 P.2d 811, 816
(1989). After the court excused 111 potential jurors, less than twenty-
five percent of the sixty-one member venire left had a qualified opinion
regarding guilt and only two such individuals served on the trial jury, no
member had an unqualified opinion, and all indicated that they could set
aside their qualified opinions and decide the case based on evidence
produced at trial. These responses undercut Defendant's prejudice claim.
See Simmons v. Lockhart, 814 F.2d 504, 510 (8th Cir.1987), cert. denied, 485
U.S. 1015, 108 S.Ct. 1489, 99 L.Ed.2d 717 (1988). The trial took place
nearly two years after the crime and the largely factual pretrial publicity
abated during the year preceding trial, circumstances supporting the court's
ruling. See Murphy, 421 U.S. at 802, 95 S.Ct. at 2037; Atwood, 171 Ariz.
at 631, 832 P.2d at 648
In the past, we also have relied on a fully developed oral voir dire record
in deciding whether pretrial publicity actually prejudiced a jury. See,
e.g., Atwood, 171 Ariz. at 632, 832 P.2d at 649; Befford, 157 Ariz. at 40,
754 P.2d at 1144; LaGrand, 153 Ariz. at 34, 734 P.2d at 576. In this case,
as discussed more fully below, see infra § A(3)(a), oral voir dire was not
extensive. This lack of extensive oral voir dire, however, cannot be
equated with prejudice in this case.
Although the court denied Defendant's request for individualized voir dire,
defense counsel agreed with questions the court proposed to raise with the
potential jurors in order to clarify the law, to rehabilitate, and to
discover additional information. Defendant repeatedly had neither additions
nor objections to the proposed questions. When the court indicated that it
would not take much time to qualify the panel, the prosecutor stated "[t]hat
sounds appropriate," and defense counsel added "I would ask the Court to
follow that." After voir dire, Defendant passed the panel.
Thus, we do not have an extensive oral voir dire record. Defendant had the
burden *567 **1170 of establishing that pretrial publicity would likely
deprive him of a fair and impartial jury. LaGrand, 153 Ariz. at 34, 734
P.2d at 576. Given the questionnaire answers and the record before us,
Defendant has not shown actual prejudice. Accordingly, we reject his claim
that pretrial publicity caused actual prejudice requiring a change in venue.
2. Did the atmosphere at trial, coupled with the pretrial publicity,
deprive Defendant of a fair trial?
In an argument closely related to his claim of presumed prejudice resulting
from pretrial publicity, see supra § A(1)(b), Defendant argues that the
conduct of his trial, coupled with the pretrial publicity, presumptively
deprived him of a fair trial, thus violating his due process rights. News
articles indicate that during trial the victim's parents and friends wore
small pink bows in memory of the victim. Another article states that "[s]everal
of the 14 jurors hearing the case wept as both parents [of the victim]
talked. Judge Richard K. Mangum also wept as he listened." The sheriff
reportedly "came close to weeping" when testifying. Other articles detail
an outburst by the victim's father. Defendant argues that these in-court
occurrences, coupled with the pretrial publicity discussed above, created a
circus or carnival atmosphere thereby denying him a fair trial. [FN7]
FN7. Even with these purported occurrences, and with very few exceptions,
defense counsel failed to object or make any record at trial. Thus, from
the record before us, Defendant simply is unable to argue "that actual
prejudice resulted from the ... actions at the trial," Atwood, 171 Ariz. at
633, 832 P.2d at 650, or that those actions had a demonstrable impact on the
jury, Norris v. Risley, 918 F.2d 828, 831 (9th Cir.1990). Thus, we cannot
and do not decide whether the conduct of the trial actually prejudiced
 A fair trial is a fundamental liberty secured by the United States and
Arizona Constitutions. See Ariz. Const. art. II, §§ 4, 24; Estelle v.
Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976); Cox
v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 479-80, 13 L.Ed.2d 487
(1965); State v. Neil, 102 Ariz. 110, 112, 425 P.2d 842, 844 (1967).
Included in this right is the guarantee that the jury determine guilt or
innocence based solely on the evidence admitted at trial. Irvin v. Dowd,
366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961).
 In extremely limited and outrageous cases, prejudice is presumed when
the record reveals that the trial "lacked the solemnity and sobriety
appropriate to a judicial proceeding." Greenawalt, 128 Ariz. at 164, 624
P.2d at 842. To presume prejudice, in-court proceedings must be " 'so
inherently prejudicial as to pose an unacceptable threat to [defendant's]
right to a fair trial.' " Atwood, 171 Ariz. at 633, 832 P.2d at 650
(quoting Holbrook v. Flynn, 475 U.S. 560, 572, 106 S.Ct. 1340, 1347, 89
L.Ed.2d 525 (1986)). The court examines the pretrial publicity in
combination with the conduct at trial, Sheppard, 384 U.S. at 354-55, 86 S.Ct.
at 1518, to determine whether the trial was improperly held in a "circus
atmosphere," Murphy, 421 U.S. at 799, 95 S.Ct. at 2036, or "carnival
atmosphere," Sheppard, 384 U.S. at 358, 86 S.Ct. at 1520. Presuming
prejudice in such cases reflects a fundamental and essential element of our
criminal justice system: "that dignity, order, and decorum be the hallmarks
of all court proceedings." Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct.
1057, 1061, 25 L.Ed.2d 353 (1970)
Although many cases discuss the doctrine, very few cases have actually
presumed prejudice due to a carnival or circus atmosphere at trial. The two
most noted cases actually presuming prejudice are Sheppard and Estes v.
Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965):
"The trial in Estes had been conducted in a circus atmosphere, due in large
part to the intrusions of the press, which was allowed to sit within the bar
of the court and to overrun it with television equipment. Similarly,
Sheppard arose from a trial infected not only by a background of extremely
inflammatory publicity but also by a courthouse given over to accommodate
the public appetite for carnival. The proceedings in these cases were
**1171 *568 entirely lacking in the solemnity and sobriety to which a
defendant is entitled in a system that subscribes to any notion of fairness
and rejects the verdict of a mob."
Atwood, 171 Ariz. at 631, 832 P.2d at 648 (quoting Murphy, 421 U.S. at 799,
95 S.Ct. at 2036); see also Sheppard, 384 U.S. at 342-49, 86 S.Ct. at
1512-15 (describing defendant's trial). These cases reflect trials
fundamentally different from the picture painted by the record here.
Unlike Estes, there is no suggestion that the media took over the
proceedings. And distinguishable from Sheppard, there is no indication that
the court so accommodated the public that the proceedings were
constitutionally unfair. Nor is this a case where any improper trial
conduct, and any corresponding jury impact, accurately may be gleaned from
the transcript. See Scala v. Greyhound Lines, Inc., 149 A.D.2d 327, 539
N.Y.S.2d 373, 374 (1989) (finding carnival-like atmosphere where transcript
revealed language used at trial "was so inflammatory and vituperative as to
be more appropriate for a barroom than a courtroom").
 Some news articles of record describe disturbing events that, given an
adequate showing of prejudice, might result in reversible error. In the
abstract, however, they do not require that we presume prejudice. The mere
fact, if it is a fact, that spectators wore ribbons to trial does not
mandate reversal. See Atwood, 171 Ariz. at 634, 832 P.2d at 651. Absent a
record, we cannot speculate that such conduct occurred or, if so, that it
was so inherently prejudicial that despite the lack of objection it posed an
unacceptable threat to Defendant's right to a fair trial. See Holbrook, 475
U.S. at 572, 106 S.Ct. at 1347-48; cf. Norris v. Risley, 918 F.2d 828, 831
(9th Cir.1990) (spectators wearing "Women Against Rape" buttons, which the
record revealed jurors saw and read, impermissibly "constituted a continuing
reminder that various spectators believed [defendant's] guilt before it was
proven"). Similarly, on the record before us, the crying and the outburst
by the victim's father do not mean that we must presume that Defendant did
not receive a fair trial. See infra § L; see also State v. Naucke, 829
S.W.2d 445, 460 (Mo.), cert. denied, 506 U.S. 960, 113 S.Ct. 427, 121
L.Ed.2d 348 (1992); State v. Grice, 109 N.J. 379, 537 A.2d 683, 687 (1988).
The information before us is essentially no more than a series of newspaper
articles purporting to generally describe what happened in the courtroom.
These articles do not permit us to reach any conclusion about events that
actually occurred in the courtroom. Indeed, they do no more than establish
that the articles were printed. We do not, and cannot, accept as conclusive
any statement contained in the articles. The record does not show that the
trial court failed to control the courtroom, and we will not speculate about
what may have occurred. To establish what actually occurred in the
courtroom, applicable procedural and evidentiary requirements must be met.
In both Estes and Sheppard, the convicted defendant submitted evidence of
what had occurred at trial. The record in this case, however, contains no
evidence establishing what happened in the courtroom or what jurors might
have seen or understood. We cannot know or presume to know what was
conveyed to the jurors from sources other than witnesses or what effect any
of this might have had on the jurors. We cannot accept as fact descriptions
contained in news articles. Trial counsel made no record about the
courtroom events through statements or affidavits by spectators, lawyers, or
reporters--save the news articles. On this record, or, to be more precise,
in its absence, we entertain no presumption that Defendant was denied a fair
trial. See Atwood, 171 Ariz. at 633-34, 832 P.2d at 650-51; State v. Tison,
129 Ariz. 526, 534-35, 633 P.2d 335, 343-44 (1981), cert. denied, 459 U.S.
882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982); Greenawalt, 128 Ariz. at 164, 624
P.2d at 842.
On the other hand, we cannot make any finding as to a lack of prejudice.
Given the judge's order forbidding the lawyers from **1172 *569 speaking to
the jurors after trial, [FN8] coupled with the lack of other evidence, we
are left in the dark as to the events that actually took place. We must
leave it to post-conviction relief proceedings to ascertain these events and
their possible effect on the trial.
FN8. On appeal, Defendant does not challenge the propriety or authority of
 By rejecting Defendant's allegations, we do not signify our
approval of the conduct alleged. A trial foreseeably engendering deep
passions is no place for publicizing the emotions of the population. Trial
judges are to take measures to ensure that those who come to see the trial
are spectators, not advocates, and that in the courthouse spectators carry
no pamphlets, hold no signs, and do nothing to pressure, or stir the
emotions of, the jurors. In our justice system, the public has the right to
watch the trial--not participate in it or indicate a desired outcome. The
trial judge must do whatever is necessary to control the courthouse and
protect the jury from emotional reactions by spectators or witnesses. The
judge should strictly forbid tactics that may influence the jury and, in the
strongest manner possible, deal with those who attempt to do so. We hold
only that, on this record, we cannot tell what happened or what effect any
occurrence had. We refuse to speculate. Thus, on this record, we find no
FN9. We reject the claim that Defendant and defense counsel were improperly
intimidated and harassed. Although in extreme cases, intimidation and
harassment can require a new trial, the record here does not support such a
claim. Cf. State v. Bush, 148 Ariz. 325, 328-31, 714 P.2d 818, 821-24
(1986) (outrageous intimidation--including assault of defendant, witness
intimidation resulting in recantation, and threats against defense
counsel--coupled with ineffective assistance of counsel required new trial).
We also find no error in the security measures taken. Defendant had been
threatened and had attempted to escape. The added security consisted
primarily of a metal detector used outside the courtroom. Because there was
a reasonable basis for this added security, and the measures taken did not
negate the presumption of innocence, we find no error. See, e.g.,
Greenawalt, 128 Ariz. at 164, 624 P.2d at 842; State v. Wilson, 113 Ariz.
363, 366, 555 P.2d 321, 324 (1976).
3. Did the trial court err in the manner in which voir dire was conducted?
Defendant claims that voir dire should have been individualized and in
camera; that oral voir dire was inadequate; and that his rights to be
present and to counsel were violated during voir dire. We address these
claims in turn.
a. Voir dire and jury selection methods used in this case
Months before trial, the parties suggested that voir dire initially be
conducted by a written questionnaire. Defendant later argued that a
questionnaire would be helpful. Defense counsel wrote the questionnaire and
submitted it to the prosecutor and the court. The court ultimately used
Defendant's questionnaire "as submitted with no changes."
The questionnaire contained fifty-six questions with numerous subparts
covering a total of thirty pages. The questions searched the potential
jurors' knowledge of the case and the source of such information. Questions
addressed the news media and perceptions of media accuracy, law enforcement,
scientific testing, and the death penalty, as well as familiarity with
Defendant and potential witnesses. The questionnaire also discussed the
standard of proof and the jurors' frame of mind if they were to "sit in
judgment." Each potential juror filled out and signed their individual
questionnaire under oath and in the court's presence.
Defense counsel had "no objection to the Judge deciding who should be
removed for cause." After reviewing the completed questionnaires, the trial
court, sua sponte, struck 106 of the 187 venire members for cause. On the
parties' motions, the court struck several other venire members for cause.
Fifteen additional venire members were excused for personal reasons or did
not show up, leaving sixty-one individuals for jury selection.
**1173 *570 The court ruled that, absent good cause, the court would
conduct oral voir dire. Ariz.R.Crim.P. 18.5(d). Before oral voir dire, the
judge met with counsel to discuss the questions he proposed asking the
potential jurors. Defense counsel did not object to the court's proposals.
The court conducted a brief, general oral voir dire of the panel of
sixty-one. A panel of thirty-four then was drawn. This panel answered the
court's voir dire questions; both parties passed the panel and exercised
their peremptory strikes. Selecting the panel of thirty-four, oral voir
dire, and peremptory strikes took forty-six minutes. With this background,
we address Defendant's arguments.
b. Did the trial court err in not permitting individualized and in camera
voir dire examination?
 Defendant requested individual, or small group, voir dire in camera.
Voir dire examination of a juror or jurors apart from the others is designed
to prevent panel contamination by inflammatory answers. Ariz.R.Crim.P.
18.5(d) comment; see also Mu'min, 500 U.S. at ----, 111 S.Ct. at 1905; cf.
State v. Clabourne, 142 Ariz. 335, 344, 690 P.2d 54, 63 (1984) (comment by
potential juror that "the entire defense was a lot of baloney" did not
impermissibly contaminate the panel). In camera voir dire, most useful in
cases involving massive publicity or "unusually sensitive subjects," is
designed to encourage full disclosure "when the prospective juror might be
embarrassed to confess his true opinion before an audience." Ariz.R.Crim.P.
18.5(d) comment. Either procedure can be very useful in appropriate cases.
Whether to conduct such voir dire, however, is left to the trial court's
discretion. See Ariz.R.Crim.P. 18.5(d).
 In this case, the written questionnaire addressed many of the
questions that might normally militate in favor of individualized, panel, or
in camera voir dire. Defendant cites no "contaminating" comment made during
oral voir dire, and we find none. Nor can we say that any other reason
required in camera voir dire. Whatever the risk of the procedure used, the
danger did not materialize. Thus, the trial court did not abuse its
discretion in denying Defendant's request. See, e.g., Conner v. State, 580
N.E.2d 214, 217 (Ind.1991), cert. denied, 503 U.S. 946, 112 S.Ct. 1501, 117
L.Ed.2d 640 (1992); Hansen v. State, 592 So.2d 114, 126 (Miss.1991), cert.
denied, 504 U.S. 921, 112 S.Ct. 1970, 118 L.Ed.2d 570 (1992); State v.
Whitfield, 837 S.W.2d 503, 509 (Mo.1992).
c. Was the scope of oral voir dire insufficient to help ensure an impartial
 Defendant argues that the scope of oral voir dire was inadequate to
secure an impartial jury. The questionnaire, the use of which was entirely
appropriate in this case, constituted nearly all of the voir dire. The
questionnaire not only revealed a great deal of relevant information from a
large panel of prospective jurors but also enabled the trial judge to avoid
infecting jurors with answers that necessarily would have been given to the
same questions if propounded during oral voir dire.
Given the nature of the case, including extensive pretrial publicity and a
small population, it might have been appropriate to have a more extensive
follow-up through oral voir dire. At trial, however, Defendant was content
with the extent of the oral voir dire. Defendant had a full opportunity to
submit voir dire questions and to discuss the court's proposed questions and
statements. Defense counsel agreed with the trial court's proposed
questions and statements and had no additional matters for the court to
discuss with the panel. Defense counsel drafted and helped administer the
questionnaire, had an opportunity to provide additional questions and
statements for the panel, and passed the panel. On this record, Defendant
is precluded from raising any claim regarding the scope of voir dire. See,
e.g., State v. Walton, 159 Ariz. 571, 580-81, 769 P.2d 1017, 1026-27 (1989),
aff'd, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); State v.
Ortiz, 131 Ariz. 195, 200, 639 P.2d 1020, 1025 (1981), cert. denied, 456
U.S. 984, 102 S.Ct. 2259, **1174 *571 72 L.Ed.2d 863 (1982); State v.
Arnett, 119 Ariz. 38, 50, 579 P.2d 542, 554 (1978). To hold otherwise would
eliminate our preclusion rule. [FN10] There are important and valid reasons
for such a rule. State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628
FN10. Defendant is not, of course, precluded from arguing fundamental
error. See infra § A(3)(e).
d. Did the court deny Defendant his right to be personally present and his
right to counsel during voir dire?
Defendant was present during much of the time the prospective jurors filled
out the questionnaire. However, after introductory statements by counsel,
Defendant, his attorney, and the prosecutor left. After they left, the
trial judge answered prospective jurors' questions on the record. Defendant
now alleges that the judge should have advised him of the specific exchanges
with the prospective jurors. Failing to do this, Defendant argues, violated
his rights to be present and to counsel during voir dire and is reversible
 Under the United States and Arizona Constitutions, a criminal
defendant has a right to be present during voir dire. State v. Collins, 133
Ariz. 20, 22-23, 648 P.2d 135, 137-38 (Ct.App.1982); Ariz.R.Crim.P. 19.2. A
defendant, however, may waive this right "by voluntarily absenting himself"
from voir dire. Ariz.R.Crim.P. 9.1; accord Allen, 397 U.S. at 342-43, 90
S.Ct. at 1060-61; State v. Tudgay, 128 Ariz. 1, 2-3, 623 P.2d 360, 361- 62
(1981). In this case, Defendant waived his right to be present during voir
 When the jury questionnaire was being filled out, the court noted that
the attorneys had discussed leaving and stated: "I will stay here in case
there are some questions, and that would be simply like what does this
question mean." After answering some initial questions, the court stated "[i]f
counsel and the defendant want to leave at this time, you may. I will stay
here in case there is another question of some kind." Defendant and all
counsel then left. [FN11] Not surprisingly, after these individuals left,
the trial court did answer some questions.
FN11. At least from defense counsel's perspective, there was a reason
for this exodus. The day before the jury questionnaire was completed,
the court discussed with the attorneys the procedure to be used, and
explained that the procedure would take less than an hour, that the court
would remain to answer questions, and that the parties were free to stay or
go as they wished. Defendant's attorney stated he would remain if the
prosecutor stayed, but that he did not want Defendant "sitting there for an
hour ... because I think he's not gonna make a good impression sitting there
for an hour.... I don't see any need for him to be there [after the
Defendant could have remained. The judge gave Defendant personal notice of
the proceedings and told him he had a right to remain and that the
proceedings would continue if he left. See State v. Perez, 115 Ariz. 30,
31, 563 P.2d 285, 286 (1977) (citing cases); State v. Armenta, 112 Ariz.
352, 353, 541 P.2d 1154, 1155 (1975) (citing authority). By voluntarily
leaving, Defendant waived his right to be present. Ariz.R.Crim.P. 9.1; see
also Allen, 397 U.S. at 342-43, 90 S.Ct. at 1060-61; Tudgay, 128 Ariz. at
2-3, 623 P.2d at 361-62. Thus, we reject the claim that Defendant was
denied his right to be present during voir dire. For the same reasons, we
reject Defendant's contention that he was denied his right to counsel when
his attorney also left.
 We similarly reject Defendant's claim that the trial court improperly
communicated with the venire when the questionnaire was completed. True, it
is improper for a trial judge to communicate with the venire unless the
defendant and defense counsel have been notified and are given the
opportunity to be present. See State v. Koch, 138 Ariz. 99, 107, 673 P.2d
297, 305 (1983); State v. Mata, 125 Ariz. 233, 240-41, 609 P.2d 48, 55-56,
cert. denied, 449 U.S. 938, 101 S.Ct. 338, 66 L.Ed.2d 161 (1980); see also
Perkins v. Komarnyckyj, 172 Ariz. 115, 117-18, 834 P.2d 1260, 1262-63
(1992). As required by these cases, however, both Defendant and his
attorney were notified and given an opportunity to be present when the
questionnaires were completed. A trial judge is **1175 *572 not required to
issue a writ to keep a defendant and defense counsel from voluntarily
leaving a proceeding. Nor does the record show any impropriety in the trial
judge's responses to the questions raised after Defendant and defense
counsel left the room. Thus, we reject Defendant's claims.
e. Did the voir dire procedures constitute fundamental error?
As discussed, Defendant did not object at trial to much of the claimed
error surrounding voir dire. On appeal, however, Defendant argues that the
claimed error was fundamental. Because Defendant claims fundamental error
on many issues discussed in this opinion, we detail the basic fundamental
 Absent fundamental error, a party usually cannot raise error on
appeal unless a proper objection was made a trial. "This principle also
applies to constitutional error. Only fundamental error ... may be raised
for the first time on appeal." State v. Holder, 155 Ariz. 83, 85, 745 P.2d
141, 143 (1987) (citations omitted); see also Ariz.R.Evid. 103(d).
Fundamental error is "error going to the foundation of the case, error that
takes from the defendant a right essential to his defense, and error of such
magnitude that the defendant could not possibly have received a fair
trial." State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). To be
fundamental, the error "must be clear, egregious, and curable only via a new
trial." Gendron, 168 Ariz. at 155, 812 P.2d at 628.
 We examine the prejudicial nature of unobjected-to error in light
of the entire record. See State v. Schaaf, 169 Ariz. 323, 327, 819 P.2d
909, 913 (1991). Because this inquiry is fact intensive, the same error may
be fundamental in one case but not in another. Cf. State v. Allen, 157
Ariz. 165, 171-72, 755 P.2d 1153, 1159-60 (1988). By definition,
fundamental error cannot be harmless error. See State v. Thomas, 130 Ariz.
432, 436 n. 1, 636 P.2d 1214, 1218 n. 1 (1981); cf. State v. Amaya-Ruiz,
166 Ariz. 152, 170, 800 P.2d 1260, 1278 (1990), cert. denied, 500 U.S. 929,
111 S.Ct. 2044, 114 L.Ed.2d 129 (1991).
 Given the high profile of this case, the passions it stirred, and the
pretrial publicity, if requested by Defendant, the court might well have
conducted a more substantial oral voir dire. The record, however, does not
show that any of the jurors seated demonstrated a closed mind; they all
stated they could follow the court's instructions and decide the case on the
evidence. While such statements are not always conclusive and are to be
tested by voir dire, Irvin, 366 U.S. at 727-28, 81 S.Ct. at 1645, on this
record rejecting these statements would require sheer speculation on our
 Although not lengthy, there was some oral response from each member of
the panel of thirty-four, allowing the parties to briefly observe their
demeanor. See State v. Cook, 170 Ariz. 40, 54, 821 P.2d 731, 745 (1991),
cert. denied, 506 U.S. 846, 113 S.Ct. 137, 121 L.Ed.2d 90 (1992). Although
two jurors had qualified opinions regarding guilt, one was drawn as an
alternate. The other juror, who actually decided the case, indicated she
could set aside her qualified opinion and decide the case on the trial
evidence. Nothing of evidentiary value in this record shows that error, if
any, in voir dire deprived Defendant of a fair trial. We find no
fundamental error. See, e.g., Cook, 170 Ariz. at 50, 821 P.2d at 741;
Gendron, 168 Ariz. at 155, 812 P.2d at 628; State v. Valdez, 160 Ariz. 9,
14, 770 P.2d 313, 318 (1989). [FN12]
FN12. By failing to find fundamental error, we do not suggest that the oral
voir dire in this case was a paradigm for cases where publicity, or any
other factor, creates a significant danger of juror bias. Rather, we
commend the approach used by the trial court in United States v.
Maldonado-Rivera, 922 F.2d 934 (2d Cir.1990), cert. denied, 501 U.S. 1211,
111 S.Ct. 2811, 115 L.Ed.2d 984 (1991):
In conducting the voir dire here, the court prepared a written questionnaire
consisting of 65 questions tailored to the facts of this case. The court
then orally asked several general questions relating to pretrial publicity.
The defendants were permitted to submit proposed supplemental questions, and
the court gave each defense attorney 15 minutes to ask "any legitimate
question" of individual prospective jurors.
Maldonado-Rivera, 922 F.2d at 971. In cases where there is a heightened
danger of juror prejudice or bias, relying almost entirely on a written
questionnaire frequently may not be adequate.
**1176 *573 4. Did the trial judge commit fundamental error in failing to
strike certain trial jurors?
 Defendant argues that the trial judge erroneously failed to sua sponte
strike twelve of the fourteen trial jurors--twelve jurors and two
alternates--for cause. At trial, Defendant did not object to or challenge
any of these jurors for cause. [FN13] Thus, we apply the stringent standard
of fundamental error. See supra § A(3)(e).
FN13. Before trial, Defendant moved to strike several venire members for
cause. The trial court granted this motion in part and denied it in part.
Defendant does not challenge that ruling on appeal. None of the venire
members challenged in Defendant's motion ultimately served as jurors.
Defendant's objections on appeal fall into a discrete number of
categories. Two of the jurors had "qualified" opinions as to guilt, meaning
that they could "set aside that opinion and render a verdict based solely on
the evidence presented in court." Similarly, several jurors indicated that,
for one reason or another, they would find it difficult but not impossible
to be fair and impartial. Each of these jurors, however, believed that they
could set aside their feelings, keep an open mind, sit fairly and
impartially, and base their verdict solely on the evidence presented at
trial. Failure to strike these jurors was neither error nor fundamental
error. See, e.g., Thomas, 130 Ariz. at 436, 636 P.2d at 1218; Tison, 129
Ariz. at 533, 633 P.2d at 342; State v. Narten, 99 Ariz. 116, 122, 407 P.2d
81, 85 (1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1985, 16 L.Ed.2d 1021
 Several jurors were familiar with the area where the victim's body was
found or with the prosecution team, the defense team, law enforcement
personnel, witnesses, the trial judge, or even the victim's family. This,
without more, does not require disqualification, and failure to sua sponte
strike these jurors was neither error nor fundamental error. See, e.g.,
State v. Hill, 174 Ariz. 313, 319-21, 848 P.2d 1375, 1381-83 (1993); State
v. Woolery, 93 Ariz. 76, 82, 378 P.2d 751, 756 (1963); State v. Brosie, 24
Ariz.App. 517, 521, 540 P.2d 136, 140 (1975), aff'd on other grounds, 113
Ariz. 329, 553 P.2d 1203 (1976).
 Three jurors knew something about DNA testing with varying
opinions as to reliability. Neither reason nor authority supports the
proposition that mere knowledge about relevant scientific testing procedures
disqualifies a potential juror, let alone constitutes fundamental error.
Although one juror had been a juror in a murder case where a guilty verdict
was returned, prior jury duty in a similar but unrelated case does not
automatically disqualify a juror. See State v. Sorrell, 95 Ariz. 220, 223,
388 P.2d 429, 431 (1964); see also 47 Am.Jur.2d Jury § 309 (1969).
 Finally, in answering the questionnaire, one juror indicated that he
would not treat the testimony of police officers as he would other
witnesses, did not understand that the State had the burden of proof for
each element, and did not agree with the presumption of innocence. This
juror, however, indicated that he could fairly and impartially listen to and
weigh the evidence and render a verdict in accordance with the law. He also
understood that the State had the burden of proof beyond a reasonable
doubt. Furthermore, this juror expressed no disagreement with the
presumption of innocence, the jury's duty to judge credibility, or the
State's burden to prove guilt beyond a reasonable doubt. Although follow-up
oral inquiry of this juror would have been appropriate, we find no
fundamental error in allowing this juror to sit. See, e.g., Cook, 170 Ariz.
at 50, 821 P.2d at 741; Gendron, 168 Ariz. at 155, 812 P.2d at 628;
Valdez, 160 Ariz. at 14, 770 P.2d at 318.
In sum, it might have been appropriate to have excused some of these jurors
or at least questioned them further. Defendant **1177 *574 asked for
neither. From the record, we cannot say that it was either error or
fundamental error for the judge to have failed to sua sponte strike the
twelve jurors for cause.
5. Failure to sequester the jury
 Defendant claims error because the trial court did not sequester the
jury. When trial began, defense counsel did not "see any need for asking
for sequestration of the jury." Nor did Defendant request sequestration
during trial. Thus, we again review for fundamental error.
 Sequestration is discretionary. Atwood, 171 Ariz. at 632, 832
P.2d at 649. Defendant does not allege juror misconduct. Accordingly, to
prove error, Defendant must show, in addition to publicity, that the jurors
did not follow the trial court's admonitions. Tison, 129 Ariz. at 551, 633
P.2d at 360.
 When trial began, the judge admonished the jurors not to "read, listen
to, or observe" any news reports of the trial. Nearly three weeks into
trial, however, the court admonished the press by stating "[o]ne of the
jurors reports the jurors were recognizably seen in some footage that was
aired." It may be that the juror saw the footage. It also may be that a
friend or relative saw the footage and informed the juror. Because
Defendant did not request that the juror be questioned, we do not know. Nor
do we know the substance of the footage. We will not speculate; on the
record before us, we find no error.
6. Failure to have a juror drawn as an alternate
During trial, witness Robert Emerick, an Arizona Department of Corrections
counselor, stated in open court that he knew a juror. The court and defense
counsel questioned that juror in open court, and the court found that the
juror could continue to sit. Defendant later moved to have the juror drawn
as an alternate. After finding that Mr. Emerick's testimony was unrebutted,
that the juror disclosed his relationship with the witness in his jury
questionnaire, and that the relationship would not influence the juror, the
court denied the motion. This juror later became the jury foreman.
Defendant appeals the denial of this motion.
 We construe Defendant's motion as a challenge for cause.
Ariz.R.Crim.P. 18.4(b). Such a challenge may be made after trial begins,
provided the grounds for the challenge were not known earlier. Id.; see
also Cook, 170 Ariz. at 53, 821 P.2d at 744. A ruling on a challenge for
cause will be affirmed absent an abuse of discretion. Cook, 170 Ariz. at
54, 821 P.2d at 745.
 Although the juror's questionnaire disclosed that he knew many
individuals (including law enforcement officers), it did not disclose his
knowledge of Mr. Emerick. The court's error in finding that the juror made
such a disclosure can be attributed, at least in part, to defense counsel's
representation that the juror "indicated on his original questionnaire that
he did know Mr. Emerick." Although a juror's failure to disclose knowledge
of a witness is a serious matter, it does not automatically require
disqualification. See, e.g., State v. MacDonald, 110 Ariz. 152, 153-54, 515
P.2d 1172, 1173-74 (1973); State v. Garcia, 102 Ariz. 468, 469-71, 433 P.2d
18, 19-21 (1967); State v. Ortiz, 117 Ariz. 264, 267-68, 571 P.2d 1060,
1063-64 (Ct.App.1977). In deciding whether a juror may continue to sit in
this situation, the court must consider the relationship between the witness
and the juror, whether the juror will properly assess the testimony, the
importance of the testimony, and whether the testimony is disputed. See
MacDonald, 110 Ariz. at 153-54, 515 P.2d at 1173-74; Garcia, 102 Ariz. at
469-71, 433 P.2d at 19-21; Ortiz, 117 Ariz. at 267, 571 P.2d at 1063. The
court must make a searching inquiry of the juror to apply these factors.
MacDonald, 110 Ariz. at 154, 515 P.2d at 1174.
 Defense counsel conceded that the trial court conducted "a rather in
depth voir dire of the juror" after the disclosure. Although friends in
high school and for two years in college, the witness and the **1178 *575
juror had not spent time together for at least five years before trial. The
juror stated that he would assess Mr. Emerick's testimony as he would any
other witness and that he had not discussed with Mr. Emerick anything
relating to the case or Mr. Emerick's work. Although important, as the
trial court found, Mr. Emerick's testimony was unrebutted and was not at the
core of the State's case. In sum, although it would have been better to
have selected the juror as an alternate, cf. Ariz.R.Crim.P. 18.5(h), on
these facts, the court did not abuse its discretion in denying Defendant's
motion, see MacDonald, 110 Ariz. at 154, 515 P.2d at 1174; Garcia, 102
Ariz. at 470-71, 433 P.2d at 20-21; Ortiz, 117 Ariz. at 268, 571 P.2d at
B. Motion to exclude evidence of other crimes, wrongs, or acts
Defendant moved to exclude evidence of his 1981 sexual assault and
kidnapping convictions. Following a hearing, the court found the evidence
admissible to show identity but not emotional propensity. The court
admitted the evidence at trial, which consisted primarily of testimony by
the victim of the 1981 incident, and gave a limiting jury instruction.
Defendant appeals the denial of his motion.
 Generally, evidence of other acts is inadmissible to prove the
defendant's character. See State v. Roscoe, 145 Ariz. 212, 216, 700 P.2d
1312, 1316 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d
525 (1985). Nor can such evidence be admitted "to show action in conformity
therewith." Ariz.R.Evid. 404(b). Other act evidence may be admissible,
however, "for other purposes, such as proof of ... identity." Id.
 To be admissible under the 404(b) identity exception, the state
must show: (1) that the defendant committed the prior offense, and (2) that
"the prior offense was not too remote in time, was similar to the offense
charged and was committed with a person similar to the prosecuting witness
in the case being tried." Roscoe, 145 Ariz. at 217, 700 P.2d at 1317
(citing cases). Because the trial court is best able to evaluate these
requirements and balance the probative value and prejudicial effect of such
evidence, we review for an abuse of discretion. State v. Brown, 125 Ariz.
160, 161-62, 608 P.2d 299, 300-01 (1980).
 Defendant admits his 1981 sexual assault and kidnapping convictions.
Accordingly, the first Roscoe requirement is satisfied. Although Defendant
committed those offenses eight years before the victim's abduction, he
served a seven-year sentence for the 1981 convictions. The instant crime
occurred approximately one year after Defendant's release from prison.
Thus, the prior offense was not too remote in time. See, e.g., Roscoe, 145
Ariz. at 217, 700 P.2d at 1317 (finding offense committed six months after
release from serving six-month prison term not too remote); State v.
Superior Court, 129 Ariz. 360, 361-62, 631 P.2d 142, 143-44 (Ct.App.1981)
(finding offense committed eighteen months after release from serving
twenty-seven month prison term not too remote).
 The 1981 convictions and the 1988 abduction had numerous
* both incidents occurred in the Sheep Hill area;
* both incidents involved a vehicle;
* both victims were Caucasian female minors;
* both victims had their clothes removed;
* both victims had their hands tied behind their backs;
* both offenses occurred during daylight hours;
* evidence of vodka consumption in both incidents; and
* evidence of the use of a knife in both incidents.
Concededly, differences between the crimes do exist. Defendant knew his
1981 victim, but apparently did not know the victim in this case. In
addition, the 1981 incident involved a seventeen-year-old victim, while the
victim in this case was nine years old. This difference, however, does not
compel **1179 *576 exclusion of the evidence. See Roscoe, 145 Ariz. at 218,
700 P.2d at 1318 (evidence properly admitted with seven-year-old victim when
prior victim was seventeen years old).
"Absolute identity in every detail cannot be expected. Where an
overwhelming number of significant similarities exist, the evidence of the
prior act may be admitted." Roscoe, 145 Ariz. at 218, 700 P.2d at 1318.
The term "overwhelming" does not require a mechanical count of the
similarities but, rather, a qualitative evaluation. Are the two crimes so
similar, unusual, and distinctive that the trial judge could reasonably find
that they bear the same signature? Id. at 217, 700 P.2d at 1317. If so,
the evidence may be admissible and any dissimilarities go to its weight.
Id. at 218, 700 P.2d at 1318.
The evidence in this case shows enough of an arguable "signature" to find
that the trial judge did not abuse his discretion in holding that the 1981
convictions were admissible to show identity under 404(b). Nor do we
believe that the evidence was so unfairly prejudicial that trial court
abused its discretion under Ariz.R.Evid. 403. See State v. Schurz, 176
Ariz. 46, 52, 859 P.2d 156, 162 (1993). Thus, we find no error in admitting
evidence of Defendant's 1981 convictions.
C. Admission of, and foundation for, DNA evidence
1. The background of DNA testing
Arresting officers noticed blood on Defendant's shirt. During the next few
months, Cellmark Diagnostic Laboratories, Inc. ("Cellmark") performed DNA
testing on this blood as well as the victim's bone and muscle samples. Test
results showed a match between the DNA in the blood on Defendant's shirt and
the DNA in the victim's muscle sample. Further testing in 1990 showed that
the DNA in the blood on the shirt did not match Defendant's DNA. The State
moved for a Frye hearing to determine the admissibility of the DNA test
results. See United States v. Frye, 293 F. 1013 (D.C.Cir.1923). After an
extensive hearing, the trial court found that the DNA testing performed was
generally accepted in the relevant scientific community and admitted the
results at trial. Defendant challenges this finding.
For criminal cases, DNA testing is a very recent advent. In October 1988,
an appellate court first considered the admissibility of DNA testing in the
criminal context. See William C. Thompson & Simon Ford, DNA Typing:
Acceptance and Weight of the New Genetic Identification Tests, 75 Va.L.Rev.
45, 46 n. 4 (1989) ("Thompson & Ford, DNA Typing ") (citing Andrews v.
State, 533 So.2d 841 (Fla.Ct.App.1988), review denied, 542 So.2d 1332
(Fla.1989)). In the years following Andrews, courts in more than forty
states have considered DNA evidence in hundreds of cases. National Research
Council, Summary, DNA Technology in Forensic Science 21-22 (1992) ("NRC
Summary, DNA Technology ").
DNA contains the genetic code for all living organisms and is present in
every cell containing a nucleus. Christopher G. Shank, Note, DNA Evidence
in Criminal Trials: Modifying the Law's Approach to Protect the Accused
from Prejudicial Genetic Evidence, 34 Ariz.L.Rev. 829, 829, 832 n. 27
(1992). DNA is composed of several component parts, including four different
base pairs. See State v. Cauthron, 120 Wash.2d 879, 846 P.2d 502, 508
(1993). The precise sequence of these base pairs in certain DNA segments
determines genetic traits. Id. The segments of DNA that determine these
genetic traits are called alleles. State v. Pennell, 584 A.2d 513, 516
The basis for DNA identity testing is the well-accepted proposition that
"except for identical twins each individual has a unique overall genetic
code." William C. Thompson & Simon Ford, DNA Testing: Debate Update, 28
Trial, Apr. 1992, at 52, 52 ("Thompson & Ford, DNA Testing" ). Present
technology, however, does not permit testing of the entire DNA sequence but
only of discrete, very limited DNA segments. "Because 99.9% of the DNA
sequence in any two people is identical," D.H. **1180 *577 Kaye, The
Admissibility of DNA Testing, 13 Cardozo L.Rev. 353, 354 (1991), accurate
analysis is vital to determine whether there is a match of the remaining 0.1
percent of the DNA sequence from the samples compared.
Stated very simply, [FN14] there are three general steps in DNA testing:
FN14. We make no attempt to add to the extensive forensic or scientific
literature on the subject. Our explanation of DNA theory, testing
procedures, and statistical analysis is greatly over-simplified. We provide
only a sketch of the technology insofar as it is relevant to the legal
issues in this case and conclusions we draw. For far more detailed
descriptions, see Commonwealth v. Curnin, 409 Mass. 218, 565 N.E.2d 440,
445-48 (1991); State v. Vandebogart, 136 N.H. 365, 616 A.2d 483, 486- 88
(1992); Cauthron, 846 P.2d at 508-10; John W. Strong, et al., 1 McCormick
on Evidence § 205, at 896-902 (4th ed. 1992); Thompson & Ford, DNA Typing,
75 Va.L.Rev. at 64-76.
1. Creating a DNA "print" or "profile" of a sample;
2. Determining whether the prints or profiles of different samples match;
3. If samples match, computing the probability of a random match.
NRC Summary, DNA Technology at 6, 8. Cellmark used restriction fragment
length polymorphism ("RFLP") testing in this case. [FN15] Cellmark,
Lifecodes Corporation, and the FBI are the three major laboratories
currently performing RFLP DNA testing in the United States. Thompson &
Ford, DNA Testing at 52. Testing protocols for these laboratories are not
identical. NRC Summary, DNA Technology at 15; see also State v. Anderson,
853 P.2d 135, 142-43 (N.M.Ct.App.), cert. granted, 115 N.M. 145, 848 P.2d
531 (1993). [FN16]
FN15. Polymerase chain reaction technology was not used in this case. Thus,
we do not consider any additional or differing issues surrounding that
FN16. Nor do testing laboratories have identical accuracy records. See
Thompson & Ford, DNA Testing at 55 (discussing study where many matching
samples, using the FBI's standards, did not match); Thompson & Ford, DNA
Typing, 75 Va.L.Rev. at 107-08 (discussing Cellmark error "in typing one of
forty-nine samples during the only independently conducted blind proficiency
test in which it has participated. The error was a serious one, of a type
that might have falsely incriminated an innocent suspect."); see also
United States v. Porter, 1991 WL 319015 (D.C.Super.Ct. Sept. 20, 1991),
vacated, 618 A.2d 629 (D.C.1992):
Referring to ... a founder of Genetic Design, Inc., [a] New York Times
article in pertinent part states:
[T]he DNA method erred two percent of the time in paternity cases. He knew
it was wrong in some cases, he said, because he sent samples to two DNA
labs. One laboratory would say the putative father was definitely--with
astronomically high odds--the father. The other laboratory would say that
the father was definitely--again, with astronomically high odds--not the
In one case, a laboratory said that not only was the father not the father
but the mother was not the mother. When he told the laboratory that
maternity was not an issue, the laboratory came back and said the mother was
the mother and the father was the father.
Porter, 1991 WL 319015, at *22-*23.
Defendant does not challenge DNA testing in toto. Indeed, Defendant
concedes general acceptance of the underlying theory of DNA testing and its
research and diagnostic uses. Rather, Defendant makes three main challenges
to the admission of the DNA test results in this case:
1. The trial court erred by declining to determine before trial whether the
tests were properly conducted and accurately recorded according to
Cellmark's own protocol.
2. There is no general acceptance in the relevant scientific community of
the procedures used by Cellmark to declare a match.
3. There is no general acceptance in the relevant scientific community of
the procedures used by Cellmark to calculate the statistical probability of
a random match and, thus, the court erred in admitting statistical
probability opinion testimony.
We first turn to the question of what standard to apply in determining
FN17. We are not presented with, and do not determine, the admissibility of
DNA evidence when DNA testing is used to determine paternity. In paternity
cases, different DNA testing technology apparently is used. See Cobey v.
State, 80 Md.App. 31, 559 A.2d 391, 397-98 & n. 14, cert. denied, 317 Md.
542, 565 A.2d 670 (1989). Thus, the analysis in this case is limited to
criminal cases in which RFLP technology is used and a match is declared.
**1181 *578 2. The standard for admissibility of new scientific evidence
 Both before and after the adoption of the Arizona Rules of
Evidence, we have used the Frye test in determining whether to admit new
scientific evidence. See, e.g., State v. Velasco, 165 Ariz. 480, 486, 799
P.2d 821, 827 (1990); State ex rel. Collins v. Superior Court, 132 Ariz.
180, 195-202, 644 P.2d 1266, 1281-88 (1982); State v. Valdez, 91 Ariz. 274,
277-80, 371 P.2d 894, 896-98 (1962). But see State v. Olivas, 77 Ariz. 118,
119, 267 P.2d 893, 894 (1954) ("scientific disagreement [as to certain blood
alcohol tests] affects only the weight and not the admissibility of
evidence."). Frye helps us determine whether new scientific principles are
ready for the courtroom and, conversely, whether the courtroom is ready for
new scientific principles:
Just when a scientific principle or discovery crosses the line between the
experimental and demonstrable stages is difficult to define. Somewhere in
this twilight zone the evidential force of the principle must be recognized,
and while courts will go a long way in admitting expert testimony deduced
from a well-recognized scientific principle or discovery, the thing from
which the deduction is made must be sufficiently established to have gained
general acceptance in the particular field in which it belongs.
Frye, 293 F. at 1014. Under Frye, we conduct a de novo review to determine
whether a scientific principle used as a basis for expert testimony is
generally accepted in the relevant scientific community. See, e.g., People
v. Barney, 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731, 737 (1992); State v.
Vandebogart, 616 A.2d 483, 491 (N.H.1992); Cauthron, 846 P.2d at 505-06.
The State argues that the Arizona Rules of Evidence effectively supersede
the Frye test and asks that we reject Frye for a relevancy standard under
Ariz.R.Evid. 401-03 and 702-06.
It is impossible for our system of justice to ignore scientific and
technological advances. Nevertheless, scientific evidence is "a source of
particular judicial caution." State v. Superior Court, 149 Ariz. 269, 276,
718 P.2d 171, 178 (1986). "Because 'science' is often accepted in our
society as synonymous with truth, there is a substantial risk of
overweighting by the jury." Morris K. Udall, et al., Arizona Practice--Law
of Evidence § 102, at 212 (3d ed. 1991). Similarly, because neither judge
nor jury may be able to separate "junk science" from good science, Frye
helps guarantee "that reliability will be assessed by those in the best
position to do so: members of the relevant scientific field who can
dispassionately study and test the new theory." Superior Court, 149 Ariz.
at 277, 718 P.2d at 179. Frye helps protect courts from unproven, and
potentially erroneous and misleading, scientific theory "until a pool of
experts is available to evaluate it in court." 1 John W. Strong, et al.,
McCormick on Evidence § 203, at 873 (4th ed. 1992). Other benefits of Frye
are uniformity of evidentiary rulings and avoiding complex evidentiary
presentations in succeeding cases after a particular principle is judicially
recognized. Id. When general acceptance is found, the scientific theory
may be applied in other cases without further proof of acceptance.
The Frye test, however, has significant shortcomings. New discoveries are
not immediately accepted in the scientific community. Rigid application of
the general acceptance test would forbid judicial use of a new discovery
even though there may be direct experimental or clinical support for the
principle. Furthermore, history shows that generally accepted scientific
theory is not always correct.
Due in part to these concerns, a leading commentator writes that a
"drumbeat of criticism ... provides the background music to the movement
away from the general acceptance test." 1 McCormick on Evidence § 203, at
873. Although acknowledging Frye's worthwhile objectives, this
commentator's further observations are worth repeating:
**1182 *579 [Frye 's] objectives can be attained satisfactorily with less
drastic constraints on the admissibility of scientific evidence. In
particular, it has been suggested ... that courts look directly to
reliability or validity rather than to the extent of acceptance, ... and
that the traditional standards of relevancy and the need for expertise--and
nothing more--should govern.
... [This suggestion] avoids the difficult problems of defining when
"scientific" evidence is subject to the general acceptance requirement and
how general this acceptance must be, of discerning exactly what it is that
must be accepted, and of determining the "particular field" to which the
scientific evidence belongs and in which it must be accepted. General
scientific acceptance is a proper condition for taking judicial notice of
scientific facts, but it is not a suitable criterion for the admissibility
of scientific evidence. Any relevant conclusions supported by a qualified
expert witness should be received unless there are distinct reasons for
exclusion. These reasons are the familiar ones of prejudicing or misleading
the jury or consuming undue amounts of time.
This traditional approach ... permits general scientific opinion of both
underlying principles and particular applications to be considered in
evaluating the worth of the testimony.... Furthermore, unlike the general
or the substantial acceptance standards, it is sensitive to the perceived
degree of prejudice and unnecessary expense associated with the scientific
technique in issue. Not every scrap of scientific evidence carries with it
an aura of infallibility. Some methods, like bitemark identification and
blood splatter analysis, are demonstrable in the courtroom. Where the
methods involve principles and procedures that are comprehensible to a jury,
the concerns over the evidence exerting undue influence and inducing a
battle of the experts have less force. On the other hand, when the nature
of the technique is more esoteric, as with some types of statistical
analyses and serologic tests, or when the inferences from the scientific
evidence sweep broadly or cut deeply into sensitive areas, a stronger
showing of probative value should be required.... By attending to such
considerations, the rigor of the requisite foundation can be adjusted to
suit the nature of the evidence and the context in which it is offered.
1 McCormick on Evidence § 203, at 873-76 (emphasis added and footnotes
omitted); see generally Mark McCormick, Scientific Evidence: Defining a New
Approach to Admissibility, 67 Iowa L.Rev. 879 (1982).
Faced with similar arguments, the United States Supreme Court recently held
that the Federal Rules of Evidence superseded Frye. See Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, ----, 113 S.Ct. 2786, 2794, 125
L.Ed.2d 469 (1993). Daubert, however, did not open the courtroom door to
all scientific evidence. The federal trial judge still is the evidentiary
gatekeeper. "Proposed testimony must be supported by appropriate
validation-- i.e., 'good grounds,' based on what is known. In short, the
requirement that an expert's testimony pertain to 'scientific knowledge'
establishes a standard of evidentiary reliability." Id. at ----, 113 S.Ct.
at 2795. Noting that "scientific validity for one purpose is not
necessarily scientific validity for other, unrelated purposes," id., Daubert
held that federal trial judges must make "a preliminary assessment of
whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology properly
can be applied to the facts in issue," id. at ----, 113 S.Ct. at 2796. The
Court then made some "general observations," offering several factors
bearing on that inquiry. Id. at ---- - ----, 113 S.Ct. at 2796-98.
 Daubert 's general observations, for the most part, correspond
with the factors discussed above in the quotation from McCormick on
Evidence. Both provide persuasive reasons for rejecting or modifying Frye
when applying the Arizona Rules of Evidence, which in relevant part are
identical to the federal rules. The federal rules, however, are
"legislatively- enacted" *580 **1183 and interpreted by the United States
Supreme Court "as [it] would any statute." Daubert, 509 U.S. at ----, 113
S.Ct. at 2793. Our rules, on the other hand, are court-enacted. See Ariz.
Const. art. VI, § 5(5); Ariz.R.Sup.Ct. 28. While the United States Supreme
Court considers congressional purpose, this court--when construing a rule we
have adopted--must rely on text and our own intent in adopting or amending
the rule in the first instance. See Ritchie v. Grand Canyon Scenic Rides,
165 Ariz. 460, 464-68, 799 P.2d 801, 805-09 (1990). Furthermore, we are not
bound by the United States Supreme Court's non-constitutional construction
of the Federal Rules of Evidence when we construe the Arizona Rules of
Finally, Daubert itself does not establish a regime based solely on the
qualification of experts and relevance. See Fed.R.Evid. 702. The Daubert
analysis includes a reliability requirement for "[p]ertinent evidence based
on scientifically valid principles." Daubert, 509 U.S. at ----, 113 S.Ct.
at 2799. The nature of this requirement is currently unknown, may vary from
case to case, and is to be fashioned by trial judges using an analytical
framework as yet unspecified. In application, Daubert leaves many questions
unanswered. See id. at ----, 113 S.Ct. at 2800 (Rehnquist, C.J., concurring
in part and dissenting in part).
We conclude, therefore, that notwithstanding legitimate criticism of Frye,
and our desire to preserve uniformity when possible, this is not the case to
determine whether Arizona should follow Daubert. Although the argument has
been raised by the State, it has not been extensively briefed or argued.
More important, however, even were we to use Daubert 's
reliability/scientific validity analysis, we would still be left with the
problem posed by Frye: precisely when "in [the] twilight zone the
evidential force of the [scientific] principle must be recognized." Frye,
293 F. at 1014. Whether the Frye or Daubert standard is used, that line is
hard to draw for DNA testing, a subject that fuels even greater scientific
ferment and controversy than the legal controversy engendered by Frye.
The science in question makes line-drawing in this case particularly
difficult. Not only are we in a complex scientific field, but the
technology is still evolving. Furthermore, this is not an area in which the
jury can easily penetrate the aura of infallibility, nor one in which the
principles are easily demonstrable in the courtroom. See 1 McCormick on
Evidence § 205, at 897-900. The trial testimony shows it is an area in
which the scientists themselves have yet to settle on uniform testing
techniques or protocols. Finally, as we discuss more fully below, see infra
§ C(5), the science in this area can have a direct and forceful dispositive
effect. As one court put it, DNA testing "is precisely the sort of
scientific evidence which requires application of the Frye test." Fishback
v. People, 851 P.2d 884, 890 (Colo.1993).
In short, the difficulties of addressing the technology used in this case
may well promote an evidentiary rule not suitable for many other types of
cases. The field of DNA testing is probably the worst subject to use to
decide whether or how to refine, replace, or abolish Frye. Nor, as will be
seen, is there a need to do so in this case. Thus, for the present at
least, we resolve this case without significant change in existing
evidentiary law. We leave Daubert for another day and, in accordance with
Arizona precedent--old and new--apply Frye as we turn to Defendant's
3. The scope of the Frye hearing and the foundation for DNA testing
If Frye is satisfied, scientific evidence is admissible "subject to a
foundational showing." State ex rel. Collins, 132 Ariz. at 196, 644 P.2d at
1282; see also NRC Summary, DNA Technology at 23 ("The adequacy of the
method used to acquire and analyze samples in a given case bears on the
admissibility of the evidence and should, unless stipulated by opposing
parties, be adjudicated case by case."). In this case, this foundational
showing was made in the jury's presence at trial, and the court ruled that a
proper foundation had been **1184 *581 made. Claiming this was error,
Defendant argues that the foundational showing should have been made at the
Frye hearing rather than in front of the jury.
Case law is split on this issue. See People v. Castro, 144 Misc.2d 956,
545 N.Y.S.2d 985, 987 (Sup.Ct.1989) (citing authority). Some courts require
an initial foundational showing outside of the presence of the jury and, if
adequate, repeat that showing before the jury. Id. Other courts allow the
foundational showing to be made solely before the jury. Id.
 The foundation needed when Frye is satisfied relates to the expert's
qualifications, proper application of testing techniques, and accurate
recording of test results. See State ex rel. Collins, 132 Ariz. at 196, 644
P.2d at 1282. If the foundational showing is made in the jury's presence,
and if the showing is inadequate, "aside from valuable trial time wasted,
the jury would be exposed to prejudicial proofs and left to speculate as to
why the defendant opposed the ultimate result." United States v. Two Bulls,
918 F.2d 56, 60 (8th Cir.1990), vacated on other grounds, 925 F.2d 1127 (8th
Cir.1991) (en banc). Mistrial or reversible error could occur if an
inadequate foundational showing was made before the jury. Simply put, in a
rare case-- where the scientific principle and necessary foundational
showing are highly controversial and hotly contested--allowing the
foundational showing to be made in front of the jury means that the trial
court works without a net.
 The trial court, however, has discretion in deciding whether a
foundational showing is to be made outside the jury's presence. See
Ariz.R.Evid. 103(c), 104(c). Although acknowledging the potential for
reversible error in using such a procedure, we hold that the trial court is
not required to hold a foundational hearing outside the jury's presence.
Furthermore, in this case the court did not err by allowing the foundation
to be made before the jury.
At trial, the State made a proper foundational showing (as opposed to, and
distinct from, the Frye finding discussed below) for the performance of the
DNA testing. The laboratory personnel had adequate qualifications, the test
used was that described by the Cellmark testing protocol, and the results
were properly recorded. Although Defendant surmises that samples might have
been switched, he cites to no compelling evidence supporting this
hypothesis, and we have found none. Thus, in this case, no error resulted
from allowing the foundational showing to be made in the presence of the
jury. Therefore, we move to the substantive Frye issue.
4. Is there general acceptance in the relevant scientific community of
Cellmark's techniques and standards used to declare a match?
A final product of DNA testing of a sample is an x-ray film called an
autoradiograph or autorad. Cauthron, 846 P.2d at 509. An autorad contains
several bands and looks like a bar code with the bands representing
different polymorphic DNA segments. Id. at 509-10. To determine whether
two samples match, Cellmark first visually compares the samples' banding
patterns. If they visually match, Cellmark measures and compares the
banding patterns of the two samples. A match is declared if each band
varies in position less than one or two millimeters from the corresponding
band in the other sample. In this case, all bands in the declared matches
varied less than plus or minus one millimeter. Unlike Cellmark, after
finding a visual match, the FBI and Lifecodes use a standard deviation or
percent variation analysis to determine whether samples match. Defendant
claims that Cellmark's match standard is not generally accepted in the
relevant scientific community.
 The accuracy of a match declaration is very important. A declared
match means that the samples could have come from the same individual.
Conversely, if samples do not match, they must have come from different
individuals. See infra note 20. At least initially, declaring any match
involves some subjectivity. Indeed, one court has stated that mere visual
comparisons *582 **1185 might be generally accepted even without objective
verification. See Perry v. State, 606 So.2d 224, 225
(Ala.Ct.Crim.App.1992). Cellmark's match criteria have objective
verification, and other courts have found that these criteria comply with
Frye. See Barney, 10 Cal.Rptr.2d at 738-40; People v. Axell, 235
Cal.App.3d 836, 1 Cal.Rptr.2d 411, 425-29 (1991); Fishback, 851 P.2d at
892-93; Pennell, 584 A.2d at 517-19; Polk v. State, 612 So.2d 381, 391-93
(Miss.1992); State v. Pierce, 64 Ohio St.3d 490, 597 N.E.2d 107, 113-14
(1992); see also Caldwell v. State, 260 Ga. 278, 393 S.E.2d 436, 443 (1990)
(visual match, coupled with band shift test, admissible).
 Defendant advances no good argument that these cases were wrong when
decided or that, because of scientific development, their analysis is now
obsolete. Furthermore, our own independent research reveals no significant
scientific controversy over Cellmark's method of declaring a match. Thus,
we hold that Cellmark's match criteria are generally accepted in the
relevant scientific community and comply with Frye.
5. Population genetics--general acceptance of Cellmark's statistical
probability calculation of a random match
 Cellmark's Lisa Forman, Ph.D., testified that, given a match of the
autorads from the blood on Defendant's shirt and the victim's tissue, the
probability of a random match ranged from one in fourteen billion to, more
conservatively, one in sixty million. The State tacitly attempted to argue
that these probability figures could be equated with the probability that
someone other than Defendant committed the crime. [FN18] Defendant contends
that the court erred in admitting the Cellmark statistical probability
evidence because it is not generally accepted by population geneticists--the
relevant scientific community.
FN18. Any argument that the random match probability constitutes a "guilt
probability" is, of course, incorrect and misleading. Indeed, as Dr. Forman
testified, the DNA random match probability "says nothing about guilt or
innocence." The random match probability assesses the likelihood that DNA
samples selected at random would match. Jonathan J. Koehler, DNA Matches
and Statistics: Important Questions, Surprising Answers, 76 Judicature 222,
224 (Feb.-Mar. 1993). Guilt probability is "[t]he probability that the
suspect is guilty of the crime in question." Id. at 225. Although the
random match probability may factor into the guilt probability calculation,
the opposite is not true. Id. at 224-25. Nor are the formulae for
determining the two different probabilities the same. Id. This court has
never condoned jury use of guilt probability calculations, nor do we in this
case. Cf. State v. Lindsey, 149 Ariz. 472, 474, 720 P.2d 73, 75 (1986)
(behavioral evidence cannot tell the jury "who is lying and who is
truthful.... [We do not permit] expert evidence on the question of guilt or
b. Calculating the random match probability
 Absent laboratory error, a declared match means that only one of the
following is true: (1) the samples came from the same individual; (2) the
samples came from identical twins; [FN19] or (3) the samples came from
different individuals but, by pure chance, the DNA segments examined match
(although comparison of the entire DNA sequence from each individual would
not match). It is the probability favoring a random match (the third of
these three alternatives) that provides the telling and crucial bottom line
of DNA evidence. [FN20]
FN19. There is nothing in the record suggesting that Defendant has an
identical twin. Accordingly, we do not address this alternative.
FN20. When no match is declared, no statistical probability determination is
made and our concerns about statistical probability determinations are
obviated. State v. Hammond, 221 Conn. 264, 604 A.2d 793, 800-01 (1992).
"All scientists agree that if [test results] are distinguishable, then [the
samples] do not come from the same individual." Cauthron, 846 P.2d at 512.
Cellmark uses the "product rule"--sometimes called the "multiplication
rule"-- to make its random match determination. This rule is described as
Suppose, for example, that a pair of DNA [samples] match on two bands, and
that one band reflects an allele found in ten percent of the population and
the **1186 *583 other an allele found in fifty percent of the population.
Applying the product rule, an analyst would conclude that the probability of
a coincidental match on both alleles is 0.10 x 0.50 = 0.05, or a five
Thompson & Ford, DNA Typing, 75 Va.L.Rev. at 81-82. [FN21] The 0.05 result
in this example means that there was a one in twenty probability of a random
match (leaving a nineteen in twenty chance that the samples came from the
same person). The validity, and corresponding accuracy, of the product rule
depends on the presence, or absence, of several factors.
FN21. For other descriptions of the product rule, see Prater v. State, 307
Ark. 180, 820 S.W.2d 429, 438 (1991); Pennell, 584 A.2d at 517; Cauthron,
846 P.2d at 513.
As applied to this case, the individual frequencies--the necessary
components of the product rule (the 0.10 and 0.50 in the example quoted
above)--come from, and are based on frequencies in, Cellmark's database.
That database apparently bases these frequencies on samples obtained from
blood banks as well as paternity and forensic cases. See Pennell, 584 A.2d
at 520. These frequency figures--vital components of the product rule--are
valid and accurate only if they come from a truly random sample, and the
database for the frequency figures must be large enough to be statistically
significant. Cauthron, 846 P.2d at 513. [FN22] The nature of the product
rule indicates that any errors, or shortcomings, in the database may have a
profound and significant impact on the random match calculations. See
Thompson & Ford, DNA Typing, 75 Va.L.Rev. at 81-82. [FN23]
FN22. On rehearing in Pennell, Cellmark's Dr. Forman testified that the
original Cellmark database had "been discarded in favor of a smaller data
base, approximately 250 individuals, selected primarily from blood bank
samples." Pennell, 584 A.2d at 520. Dr. Forman's testimony indicates that
the database used in the present case was the original database that was
later discarded. The stated reason for discarding the original database
"included the elimination of mother-father combinations, the procurement of
more information on the persons included, etc." Pennell, 584 A.2d at 520 n.
In light of our discussion below we need not address whether a database
selected from blood banks and/or paternity and forensic cases could be
sufficiently representative of the population as a whole, or any relevant
subpopulation, to be statistically valid. Similarly, we do not address the
minimum size required for a database to be a statistically valid
representation of the population as a whole or any relevant subpopulation.
FN23. A simplistic hypothetical illustrates this point. Using eight
frequency figures, and assuming the frequency rate for each figure is 0.1
(or 1 in 10), the probability of a random match would be 0.1 x 0.1 x 0.1 x
0.1 x 0.1 x 0.1 x 0.1 x 0.1 or 0.18 or 1 in 100,000,000. Using the same
formula, if the true and correct frequency rate for each frequency figure is
0.3 (or 3 in 10), the probability of a random match would be 0.3 x 0.3 x 0.3
x 0.3 x 0.3 x 0.3 x 0.3 x 0.3 or 0.38 or 1 in 15,242. On the other hand,
and again using the same formula, if the true and correct frequency rate for
each frequency figure is 0.05 (or 1 in 20), the probability of a random
match would be 0.05 x 0.05 x 0.05 x 0.05 x 0.05 x 0.05 x 0.05 x 0.05 or
0.058 or 1 in 25,600,000,000.
The product rule also is based on the assumption that each band on the
autorad represents a DNA segment that is independent of the other bands on
the autorad. For this assumption to be valid, the DNA segments tested must
be in linkage equilibrium--i.e. "the probability of a match on each band is
unaffected by the occurrence of a match on any other band." Id. at 81.
[FN24] If this assumption of independence is not correct, the results of
the product rule may be incorrect by a substantial margin. [FN25]
FN24. Linkage disequilibrium may occur when DNA segments tested are in close
physical proximity to each other. Id. at 85. Testing DNA segments that are
physically remote from each other may diminish linkage disequilibrium. Id.
FN25. Again, a simplistic hypothetical illustrates the point. As before,
using eight frequency figures, and if the frequency rate used for each
frequency figure is 0.1 (or 1 in 10), the probability of a random match
still would be 0.1 x 0.1 x 0.1 x 0.1 x 0.1 x 0.1 x 0.1 x 0.1 or 0.18 or 1 in
100,000,000. If, however, band "2" and band "3" are always present when
band "1" is present, the actual probability of a random match would be 1.0 x
1.0 x 0.1 x 0.1 x 0.1 x 0.1 x 0.1 x 0.1 (or 1.0 x 1.0 x 0.16) or 1 in
A third relevant assumption upon which the product rule is based is a truly
random mating population (where mating is random and the gene pool is evenly
intermixed). *584 **1187 Cauthron, 846 P.2d at 514. Stated very simply, a
large, randomly mating population, at least within a generation, is in
Hardy-Weinberg equilibrium. See Thompson & Ford, DNA Typing, 75 Va.L.Rev.
at 85. As with the other assumptions, if there is no Hardy-Weinberg
equilibrium, the product rule results may be incorrect by a substantial
margin. See id.
c. Legal analysis
Defense expert Lawrence Mueller, Ph.D., testified that Cellmark's
statistical probability calculations were not generally accepted in the
relevant scientific community. State expert Dr. Forman conceded that the
1988 Caucasian database used by Cellmark in this case was not in
Hardy-Weinberg equilibrium. But see Reporter's Transcript, Mar. 21, 1990,
at 5 (contrary testimony by Daniel Garner, Ph.D.). The State argues,
however, that Cellmark's calculations resulted in conservative probability
figures and were properly admitted. We cannot agree.
The admissibility of DNA testing in criminal matters has been litigated for
several years. "The statistical calculation dispute, however, has not been
judicially examined until quite recently." Barney, 10 Cal.Rptr.2d at 743.
Many courts have questioned the propriety of DNA statistical probability
calculations. See, e.g., Caldwell, 393 S.E.2d at 443; State v. Houser, 241
Neb. 525, 490 N.W.2d 168, 183-84 (1992); People v. Mohit, 153 Misc.2d 22,
579 N.Y.S.2d 990, 998 (Sup.Ct.1992). Although courts have found DNA testing
admissible--explicitly, or more frequently implicitly, finding the
probability calculations acceptable--three factors make most of these cases
First, in many early cases, the defendant did not challenge the
prosecution's evidence. Second, many cases used an admissibility standard
less rigorous than Frye and arguably less rigorous than Daubert, basing
admissibility on the qualification of experts and relevance. See Anderson,
853 P.2d at 142 (discussing so-called "relevancy approach" for determining
admissibility of scientific evidence). [FN26] Third, many cases address
probability calculations from laboratories other than Cellmark. These
laboratories use different databases than Cellmark and, accordingly, these
cases may be distinguished. See Anderson, 853 P.2d at 142. Notwithstanding
the few remaining cases finding probability statistics admissible, recent
developments--scientific and judicial--drastically alter the relevant
FN26. Relevancy of the subject matter--a standard discussed in Daubert--is
not questioned in the present case. Reliability of application of the
specific theory--another standard discussed in Daubert--is the core question
surrounding the probability calculations disputed in this case.
Within the last two years, controversy "has erupted in the scientific
community concerning the reliability of DNA evidence." People v. Atoigue,
1992 WL 245628, at *4 (D.Guam App.Div. Sept. 11, 1992) (emphasis added). A
December 1991 edition of Science, a respected scientific journal with
articles subject to peer review, contained two articles stating radically
conflicting views of statistical probability calculations. Compare R.C.
Lewontin & Daniel L. Hartl, Population Genetics in Forensic DNA Typing, 254
Science 1745, 1750 (Dec. 20, 1991) (calculations for "the probability of a
matching DNA profile ... are unjustified and generally unreliable ")
(emphasis added) with Ranajit Chakraborty & Kenneth K. Kidd, The Utility of
DNA Typing in Forensic Work, 254 Science 1735, 1739 (Dec. 20, 1991) (method
of calculating the probability of a matching DNA profile "does not require
'fixing' for it to be used in courts"). [FN27] A companion article **1188
*585 exclaims that a "bitter debate is raging" about the courtroom use of
DNA testing. See generally Leslie Roberts, Fight Erupts Over DNA
Fingerprinting, 254 Science 1721 (Dec. 20, 1991). This companion article
describes Lewontin and Hartl as "two of the leading lights of population
genetics" and discusses the pressure brought--by scientists and
prosecutors--to include the Chakraborty/Kidd article in response to the
Lewontin/Hartl article. Id. [FN28] "These two articles seem likely to
reinforce the notion that the [scientific] community is indeed divided."
Id. at 1721, 1723. [FN29]
FN27. Additional literature indicates that the probabilities are not
generally accepted. For example, in July 1991, a surveyor
identified 30 academic scientists (not employed by forensic labs) with
expertise in population genetics who had taken a position on the issue. By
[the surveyor's] count, 11 support current forensic approaches, 19 do not.
Moreover, the ratio of critics to supporters is higher among scientists
whose work is better known in the field of population genetics.
Thompson & Ford, DNA Testing at 58; see also Thompson & Ford, DNA Typing,
75 Va.L.Rev. at 84-85 (the assumption of independence of alleles "is still
FN28. See also Leslie Roberts, Science in Court: A Culture Clash, 257
Science 732 (Aug. 7, 1992) (discussing strenuous prosecutorial efforts to
discredit defense experts on statistical probabilities).
FN29. The report of the National Research Council Committee on DNA
Technology in Forensic Science did not clarify the issue. The April 1992
report recommended that DNA analysis be used but that improvements are
needed. The report acknowledges that the product rule "has provoked
considerable debate among population geneticists." NRC Summary, DNA
Technology at 12.
The impact of these articles is best demonstrated by California cases. The
California Court of Appeal, in October 1991, rejected a challenge to
Cellmark's probability calculations. See Axell, 1 Cal.Rptr.2d at 426-31.
The December 1991 Science articles, however, changed this analysis. Just a
few months later, the California Court of Appeal said:
Whatever the merits of the prior decisions on the statistical calculation
process--including Axell--the debate that erupted in Science in December
1991 changes the scientific landscape considerably, and demonstrates
indisputably that there is no general acceptance of the current process. It
has become irrelevant how Axell addressed this issue at the time of the
decision's filing in October 1991.
Barney, 10 Cal.Rptr.2d at 744; see also People v. Wallace, 14 Cal.App.4th
651, 17 Cal.Rptr.2d 721, 726-27 (1993) (following Barney ). In Barney, the
California Court of Appeal expressly rejected its own precedent and held
that the probability analysis, and as a result all DNA identification
testimony, was inadmissible. Barney, 10 Cal.Rptr.2d at 745. The California
Supreme Court denied review, id. at 731, but expressly authorized
publication of the Barney court's DNA discussion, id. at 731 & n. *. [FN30]
FN30. A fact of some significance. See People v. Littleton, 7 Cal.App.4th
906, 9 Cal.Rptr.2d 288, 288 n. *, 290 (Ct.App.1992) (California Supreme
Court refusing to certify publication of the court of appeal's Cellmark DNA
 Other recent cases confirm this lack of general acceptance of
Cellmark's statistical probability calculations in the relevant scientific
community of population geneticists. See, e.g., Atoigue, 1992 WL 245628, at
*4; Commonwealth v. Lanigan, 413 Mass. 154, 596 N.E.2d 311, 316 (1992);
Commonwealth v. Curnin, 409 Mass. 218, 565 N.E.2d 440, 444-45 (1991); State
v. Schwartz, 447 N.W.2d 422, 428-29 (Minn.1989); Vandebogart, 616 A.2d at
493-94; Cauthron, 846 P.2d at 514-17. [FN31] After reviewing these
decisions, as well as recent scientific literature, we agree that the
Cellmark method of deriving the random match probability figures is not
generally accepted in the relevant scientific community. For Frye purposes,
these probability calculations are flawed in three ways: (1) they are
impermissibly based on the disputed assumption of linkage equilibrium; (2)
the database relied on is of disputed statistical **1189 *586 validity; and
(3) the database relied on is not in Hardy-Weinberg equilibrium.
FN31. See also People v. Wardell, 230 Ill.App.3d 1093, 172 Ill.Dec. 478, 595
N.E.2d 1148, 1153-54 & n. 2 (1992) (holding that trial court, in denying
defendant's request for DNA testing, did not abuse its discretion "in
deciding that the DNA testing methodology had not yet been generally
recognized in the scientific community in early 1988.... The admissibility
and reliability of DNA testing continues today to be the subject of
debate."); cf. Fishback, 851 P.2d at 894 (finding that, as of October
1989--the date the evidence was admitted at trial in that case--the
statistical probability calculations were generally accepted but conceding
"that considerable debate has emerged in the three years since the trial in
this case concerning the acceptability of the statistical frequencies which
accompany a declared match of DNA profiles.").
 Given this conclusion, the application of the product rule and the
resulting opinion of the odds against a random match were not derived by
applying generally accepted scientific theory. [FN32] We conclude,
therefore, that the court erred [FN33] in admitting the probability
testimony based on the product rule calculations. This finding requires us
to address one more issue regarding DNA.
FN32. One basis for this holding is that a substantial body of scientific
thought considers Cellmark's statistical calculations unreliable. In
setting forth "general observations," Daubert mentioned four factors to
consider in determining both relevance and reliability. Daubert, 509 U.S.
at ---- - ----, 113 S.Ct. at 2796-98. These are:
1. Whether the theory or technique "can be (and has been) tested." Id. at
----, 113 S.Ct. at 2796. The validity of the probability calculations
cannot be accurately tested without a valid database, and testimony in this
case failed to establish the validity of the database used by Cellmark.
2. "[W]hether the theory or technique has been subjected to peer review and
publication." Id. The product rule in general--the formula used to make
the probability calculations--has been published and subjected to peer
review. As noted above, however, peer review and publication have produced
disagreement regarding the validity of Cellmark's probability calculations.
3. "[I]n the case of a particular scientific technique, the court ordinarily
should consider the known or potential rate of error and the existence and
maintenance of standards controlling the technique's operation." Id. at
----, 113 S.Ct. at 2797 (citations omitted). Even assuming no laboratory
error in Cellmark's DNA testing, the potential magnitude of error of the
probability calculations is great, depending on the inadequacies of the
database and the validity of the assumptions underlying the product rule.
In addition, trial testimony disputed Cellmark's compliance with guidelines
promulgated by the Technical Working Group on DNA Analysis and Methods and
the California Association of Crime Laboratory Directors.
4. General acceptance, which "can yet have a bearing on the inquiry." Id. at
----, 113 S.Ct. at 2797. As set forth above, there is no general acceptance
of Cellmark's statistical probability analysis.
Given the requirements of Ariz.R.Evid. 403--the federal counterpart of which
"permits the exclusion of relevant evidence," id. at ----, 113 S.Ct.
at 2797--and the great potential for prejudice resulting from the admission
of the statistical calculations, we are not persuaded that even under the
Daubert test the evidence would be admissible. We reach no conclusion on
that subject. Neither party has briefed, nor has this court been able to
consider, all of the factors that might be applicable in applying a
reliability test. Even Daubert did not attempt to provide a checklist but
only "general observations." Id. at ----, 113 S.Ct. at 2796. As Chief
Justice Rehnquist wrote, Daubert 's observations are "general," "vague and
abstract," id. at ----, 113 S.Ct. at 2799 (Rehnquist, C.J., dissenting), and
one could argue that it is better to allow the law to evolve and develop.
In the present case, the evidence in question was not advanced under a
reliability theory, and we do not know what the evidence might have been if
such a theory had been advanced. We therefore come to no conclusion as to
either the adoption of such a test or the outcome in this or other cases if
the test were to be applied.
FN33. It is somewhat incongruous to call the trial court's ruling "error."
Nearly all of the scientific literature and case law on which we rely was
unavailable when the evidence was admitted at trial. This subsequent
technological and legal explosion prompted one appellate court to base its
Frye determination on the information available "as of the date th[e]
evidence was admitted at trial." Fishback, 851 P.2d at 894. For the
following reasons, we reject this approach.
First, neither logic nor authority supports confining ourselves to a
snapshot, rather than viewing the motion picture, of technological
advancement. If the result obtained is the product of invalid scientific
theory, there is no good reason to accept it simply because we were fooled
at the inception of the inquiry. Second, the Fishback approach, for no
persuasive stated reason, rejects technology directly addressing general
acceptance. Third, there are numerous, more persuasive cases adopting an
approach contrary to Fishback. Barney, 10 Cal.Rptr.2d at 744; Atoigue, 1992
WL 245628, at *4; Cauthron, 846 P.2d at 514-17. Perhaps most important, new
technology, evolving at such a pace that general acceptance changes from the
time of trial to the time of appellate review, is at the core of what Frye
is designed to scrutinize--not the basis of an exception that ignores recent
developments. The Fishback rule, in our view, ignores vital scientific
evolution. Thus, in surveying all information available, we consider
scientific literature published, as well as cases decided, after trial. On
this basis, because there is now no general acceptance, at least in a
technical sense, the trial judge did err.
6. The effect of the lack of general acceptance of the statistical
probability of a random match
As the Barney court asked, "must the absence of general scientific
acceptance as **1190 *587 to the current statistical calculation aspect of
DNA analysis result in total exclusion of DNA evidence?" Barney, 10
Cal.Rptr.2d at 744. Barney stated that, without a determination of the
random match probability, a declared match "means nothing." Id. at 742.
Other courts have agreed. "Without the probability assessment, the jury
does not know what to make of the fact that the patterns match: the jury
does not know whether the [matching] patterns are as common as pictures with
two eyes, or as unique as the Mona Lisa." United States v. Yee, 134 F.R.D.
161, 181 (N.D.Ohio 1991), quoted in Anderson, 853 P.2d at 146-47; accord
Atoigue, 1992 WL 245628, at *3; see also NRC Summary, DNA Technology at 9.
Under ordinary evidentiary principles, these courts conclude that a lack of
general acceptance of the random match calculations precludes admission of
any DNA evidence.
Cauthron went even further. Rather than merely finding that testimony of a
match without evidence of the probability of a random match was not helpful
to the jury, that court also held that such testimony did not meet the Frye
test. "Testimony of a match in DNA samples, without the statistical
background or probability estimates, is neither based on generally accepted
scientific theory nor helpful to the trier of fact." Cauthron, 846 P.2d at
516. Thus, Cauthron found that ordinary evidentiary principles as well as
Frye require that a lack of general acceptance for the random match
calculations precludes admission of any DNA evidence.
A different judicial approach is to "uncouple" evidence of a match from the
random match probability calculations. For example, the court in Pennell
found Cellmark's DNA testing and resulting match evidence generally accepted
and admissible. Pennell, 584 A.2d at 522. The statistical probability
evidence, however, was inadmissible because the state "failed to demonstrate
a degree of reliability necessary to admit such statistical probabilities."
Id. Thus, the jury could hear evidence of the nature of DNA and that a
match had been declared, but could not hear evidence of the random match
probability. Id. Another approach is to allow expert testimony regarding
frequency but not product rule expert testimony. See State v. Johnson, 498
N.W.2d 10, 14-15 (Minn.1993) (affirming expert testimony that the alleles
tested were present in from three to twenty-seven percent of the samples in
the FBI's database; the prosecutor's expert properly "was not allowed to
draw any conclusions from such statistics, nor was he even allowed to
speculate [by applying the product rule]"). [FN34]
FN34. Defense expert Dr. Mueller advocated a similar approach if such
testimony was based on a valid database.
We acknowledge these different approaches to the issue. We also
acknowledge that, in this case, the testimony of a match--independent of the
probability testimony--unquestionably has relevance to establish one fact:
that the blood on Defendant's shirt could have come from the victim (but not
that it necessarily and conclusively did come from the victim). This
proposition, coupled with general acceptance of the underlying theory of DNA
testing, may mean that evidence of a match, accompanied by evidence that a
match means that it is possible or probable that the two samples came from
the same individual, could be admissible. We need not and do not decide the
propriety of such trial strategy because it is not before us. We cannot
foresee what explanatory evidence might be available to militate in favor of
admissibility of the match evidence independent of the probability
calculations. Accordingly, we neither accept nor reject any of the
positions taken by other courts on this point. The trial court admitted
evidence as to both the declared match and the random match probabilities.
We simply hold that statistical evidence of the random match probabilities
was inadmissible and, thus, should not have been admitted. We go no
further. Thus, we must now determine the effect of the error in admitting
**1191 *588 7. Was the error in admitting the DNA probability calculations
 When an issue is raised but erroneously ruled on by the trial
court, this court reviews for harmless error. See State v. McVay, 127 Ariz.
450, 453, 622 P.2d 9, 12 (1980). Absent "structural defects," Arizona v.
Fulminante, 499 U.S. 279, ----, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302
(1991), and other matters not subject to harmless error analysis, we use one
test to determine whether error is harmless in criminal cases, State v.
White, 168 Ariz. 500, 508, 815 P.2d 869, 877 (1991), cert. denied, 502 U.S.
1105, 112 S.Ct. 1199, 117 L.Ed.2d 439 (1992); State v. Lundstrom, 161 Ariz.
141, 150 n. 11, 776 P.2d 1067, 1076 n. 11 (1989); State v. Thomas, 133
Ariz. 533, 538, 652 P.2d 1380, 1385 (1982). Error, be it constitutional or
otherwise, is harmless if we can say, beyond a reasonable doubt, that the
error did not contribute to or affect the verdict. Lundstrom, 161 Ariz. at
150 & n. 11, 776 P.2d at 1076 & n. 11. "The inquiry ... is not whether, in
a trial that occurred without the error, a guilty verdict would surely have
been rendered, but whether the guilty verdict actually rendered in this
trial was surely unattributable to the error." Sullivan v. Louisiana, 508
U.S. 275, ----, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); accord McVay,
127 Ariz. at 453, 622 P.2d at 14. We must be confident beyond a reasonable
doubt that the error had no influence on the jury's judgment.
There is no bright line statement of what is and what is not harmless
error. See Bush v. State, 19 Ariz. 195, 204, 168 P. 508, 512 (1917); see
also Jack B. Weinstein & Margaret A. Berger, 1 Weinstein's Evidence ¶
103, at 103-70 to 81 (1992) (listing factors courts examine in
determining whether error was harmless). The State has the burden of
convincing us that error is harmless, Chapman v. California, 386 U.S. 18,
24-26, 87 S.Ct. 824, 828-29, 17 L.Ed.2d 705 (1967), and we consider the
error in light of all of the evidence, White, 168 Ariz. at 508, 815 P.2d at
877. Due to this case-specific factual inquiry, an error may be harmless in
one case but require reversal in another. With these stringent concepts in
mind, we assess the record evidence in light of the erroneous admission of
the DNA probability calculations.
We first note that Defendant challenged the improperly admitted probability
evidence at trial. The jury was not left with the impression that the
probability calculations were acknowledged as reliable by all scientists.
The issue was hard fought. Defense expert Dr. Mueller explained in detail
to the jury the lack of Hardy-Weinberg equilibrium, linkage disequilibrium,
the possible unreliability of the database, and the consequent misleading
end result of the product rule. Dr. Mueller is as well-credentialed and as
prominent as Dr. Forman, the prosecution's expert, who presented the
opposite view. It is, of course, impossible to know what the jury made of
all this, and we assume, as we must, that the jury gave credence to the
prosecutor's evidence. Suffice it to say, however, that the picture
presented to the jury did not have the aura of infallibility surrounding an
unchallenged scientific theory. Rather, the picture portrayed a hotly
disputed scientific controversy.
 If the evidence against Defendant had been closely balanced, strong,
or even very strong, we think it would be impossible to say beyond a
reasonable doubt that the inadmissible DNA evidence did not affect the
verdict. Evidence of odds even as "low" as one in sixty million that the
blood on Defendant's shirt was not the victim's blood is, to say the least,
powerful. Factually, however, this is a very unusual case. Given the
testimony describing the dispute over the DNA evidence, that evidence was
far from the most telling part of the State's case. The other evidence
points with unerring consistency to one inarguable conclusion: that
Defendant killed the victim.
Before Defendant's arrest, the victim's mother described a vehicle matching
the GMC that Defendant was driving and placed it where the victim was last
seen alive. Her description of the driver was consistent with Defendant.
Defendant admitted stealing the GMC before the abduction *589 **1192 and was
seen driving the vehicle both before and after the abduction. During the
relevant time period, no one but Defendant was seen driving the vehicle.
Many items connect Defendant and that GMC to the location where the body
was found. The rubber bands in the GMC were the same as dozens of rubber
bands found in the brush covering the body, near the victim's clothing, and
in a tree containing the victim's panties. Before it was stolen, the GMC
contained rubber band bags, a rubber band bag was found close to the
victim's body, and no rubber band bags were found in the GMC after
Defendant's arrest. Investigators found two empty Suntory vodka mini-bottles
on Sheep Hill and a twenty mini-bottle container of Suntory vodka, with two
bottles missing, in the GMC. The loose packets of hot chocolate in the GMC
matched the empty ten- packet box found near the victim's body.
The three pieces of metal from the GMC's steering column--one in the GMC,
one where the GMC had been parked, and one near the body--fit together like
a jigsaw puzzle. A cigar found beside the body matched a cigar in the GMC.
Both cigars had similar breaks and were from the same tobacco lot. Tobacco
residue from Defendant's shirt was consistent with these cigars.
Near the body, investigators found a pubic-type hair similar to Defendant's
pubic hair samples. Hair on Defendant's jacket was similar to the victim's,
and hair similar to Defendant's was on the victim's T-shirt and the sheet
used to wrap the body. Dozens of hairs matching the victim's were located
in the GMC, and investigators found hair similar to the victim's on a
blanket in the vehicle. When arrested, Defendant possessed knives that,
during testing, replicated cuts on the hair found near the body.
Fibers near the body were similar to fibers from the seat covers of the
GMC, Defendant's jacket, and a blanket found in the GMC. A fiber on the
shoelace used to tie the victim's hands was similar to fibers from
Defendant's jacket. The blood spatter pattern on Defendant's shirt was
consistent with beating force, and investigators found blood-matted grass
near the body. Traditional blood testing, unchallenged on appeal, showed
that the blood on Defendant's shirt was PGM 2+ subtype--the same subtype as
the victim's blood. Less than three percent of the population has PGM 2+
subtype, and Defendant could not be the source of this blood.
In sum, the properly admitted evidence in this case goes far beyond
overwhelming evidence of guilt. It is not only inconsistent with any
reasonable hypothesis of innocence, it refutes any hypothesis other than
Defendant's guilt. It is simply inconceivable that anyone other than the
person who had the GMC perpetrated the crime. Nothing else explains the
rubber bands, rubber band bag, vodka bottles, hot chocolate packets and
container, cigars, and metal pieces from the steering column. There is no
question that Defendant possessed the vehicle and no evidence that anyone
else possessed the GMC during the relevant time period. Even if one were
inclined to speculate about who controlled the vehicle, there is the
evidence--fibers, hair, blood, and knives--tying Defendant to the vehicle,
to the victim, to the crime scene, and to the crime. Defendant advances no
theory of how all this could be explained unless Defendant, and only
Defendant, committed the crime.
Given this unequivocal evidence, independent of the hotly contested DNA
probability evidence, we find beyond a reasonable doubt that the erroneous
admission of the DNA evidence could have had "no influence on the verdict of
[this] jury." McVay, 127 Ariz. at 453, 622 P.2d at 14. Other courts have
reached similar conclusions with weaker, or at least comparably strong,
evidence of guilt independent of the erroneous admission of DNA evidence.
See, e.g., Barney, 10 Cal.Rptr.2d at 747-48 (upholding conviction where
defendant's wallet found on bloodstained couch in victim's home, defendant's
fingerprint found in room of victim's home, and non-DNA blood testing linked
defendant to crime scene); State v. Nielsen, 467 N.W.2d 615, 619
(Minn.1991) (victim last seen alive with defendant, *590 **1193 blood
matching victim's found on defendant's shirt, untypable human blood found in
defendant's car, defendant's blood type matched semen found on victim's
body, defendant had black eye day after murder, and defendant left the area
when told that the police were looking for him); cf. Wallace, 17
Cal.Rptr.2d at 726- 27 (following Barney and upholding conviction where
crimes were distinctive, one victim identified defendant, circumstantial
evidence connected defendant to crimes, traditional blood typing eliminated
all but two or three percent of the population, and defendant admitted
committing offenses to fiancee); Atoigue, 1992 WL 245628, at *4 (upholding
conviction where victim identified defendant). But see Houser, 490 N.W.2d
at 184 ("Reception of the DNA evidence cannot be said to be harmless
error.") (citing cases).
 Again, we emphasize that we do not, and cannot, find harmless error
based on our idea of guilt or innocence or whether there is sufficient
proper evidence to convict. See, e.g., Sullivan, 508 U.S. at ---- - ----,
113 S.Ct. at 2081-82; McVay, 127 Ariz. at 453, 622 P.2d at 12. We cannot
and do not speculate as to what a reasonable jury would have done. See
Sullivan, 508 U.S. at ---- - ----, 113 S.Ct. at 2081-82. We are convinced
beyond a reasonable doubt, however, that the guilty verdict in this case was
unaffected by the improper admission of the DNA evidence. Thus, because the
State has carried its heavy burden, we hold that the error in admitting the
probability evidence was harmless.
8. Summary regarding DNA evidence
To summarize, we hold that the principles and theory underlying DNA testing
and Cellmark's match criteria are generally accepted in the relevant
scientific community. General acceptance regarding these matters permits
judicial notice of DNA theory and the techniques--at least insofar as
Cellmark is concerned--for ascertaining and declaring a match. From this
point forward, Arizona trial courts no longer need to hold Frye hearings
regarding the general acceptance of DNA theory, the principles underlying
DNA testing, or the Cellmark match criteria. We emphasize, however, what
this means and what it does not mean. If testing shows that samples do not
match, then the conclusion is that they are from different individuals. If
testing shows that the samples do match, the conclusion is that they may be
from the same individual.
We conclude that there is no general acceptance in the relevant scientific
community for Cellmark's random match probability calculations. Because
these calculations do not meet the Frye test, they are inadmissible. We
reserve and expressly do not decide whether the inadmissibility of the
random match probability calculations means that other DNA evidence, such as
evidence of a match, is inadmissible. Finally, on the unique facts of this
case, we hold that the admission of the inadmissible DNA probability
evidence was harmless error.
We take a cautious, conservative approach. Not knowing what records in
other cases will show, what issues those cases will raise, or what new
technology will bring, we neither write in stone nor go farther than we
must. For the moment, and at least with respect to DNA evidence, we leave
Frye untouched. We make no final judgment on how far, if at all, the court
may go in allowing a party to inform the jury about the declaration of a
match and its meaning in any specific case. We hold only that statistical
probability evidence based on Cellmark's database is not based on generally
accepted scientific theory and is not admissible.
D. Right to assistance of counsel at critical stages
1. Right to counsel at the hearing on Defendant's motion to continue
 On the eve of trial, Defendant filed a pro se motion to continue,
alleging ineffective assistance of counsel. Although the trial court was
not required to consider this pro se motion of a defendant represented by
counsel, it did. At the hearing, Defendant called his attorneys as
witnesses. He did not request additional counsel **1194 *591 to represent
him during the hearing and none was appointed. The trial court denied the
motion. Relying on an alternative holding by the majority in United States
v. Wadsworth, 830 F.2d 1500, 1510 (9th Cir.1987) (2-1 decision), Defendant
argues that he was denied his right to assistance of counsel.
Wadsworth is inapposite. In Wadsworth, at a hearing on a motion to change
counsel, defense counsel took a position adverse to the defendant. In the
present case, Defendant--represented by counsel--filed a pro se motion that
the court actually considered. At the hearing on that motion, Mr. Phillips,
one of Defendant's attorneys, appeared, represented Defendant's interests,
protected Defendant's rights, and took no position adverse to Defendant.
Thus, we find no error. See United States v. Weaver, 882 F.2d 1128, 1143 n.
9 (7th Cir.), cert. denied, 493 U.S. 968, 110 S.Ct. 415, 107 L.Ed.2d 380
2. Defendant's motion to substitute counsel
Claiming a lack of trust and confidence, Defendant moved pro se to remove
his lead attorney, making several claims of that attorney's purported
inaction. The trial court denied the motion. On appeal, Defendant claims
the denial was error.
 Although an indigent criminal defendant has a Sixth
Amendment right to competent counsel, this right does not include counsel of
choice. See State v. LaGrand, 152 Ariz. 483, 486, 733 P.2d 1066, 1069. Nor
does this right guarantee a " 'meaningful relationship' between an accused
and his counsel." Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 1617,
75 L.Ed.2d 610 (1983). Although irreconcilable conflict is not permitted,
conflict between counsel and a criminal defendant is but one factor a court
should consider in deciding whether to substitute counsel. See LaGrand, 152
Ariz. at 486-87, 733 P.2d at 1069-70. A mere allegation of lost confidence
in counsel does not require appointing substitute counsel. See State v.
Crane, 166 Ariz. 3, 11, 799 P.2d 1380, 1388 (Ct.App.1990). We review the
trial court's decision for an abuse of discretion. LaGrand, 152 Ariz. at
487, 733 P.2d at 1070.
 The record reveals disagreement among the defense team, particularly
regarding whether to file a special action on the DNA issues. Defendant and
his lead attorney also disagreed on some defense strategy. The trial court,
however, found that virtually none of the relevant allegations in
Defendant's pro se motion were supported. The record does not demonstrate
an irreconcilable conflict between Defendant and his attorneys. As the
trial court correctly summarized:
What this all boils down to is that there is some disagreement as to tactics
and strategy among the defendant and the investigator and counsel, maybe
even some feelings of not getting along so well together.
I look strictly at whether the defendant will have adequate representation
of counsel in this case. My finding is that he will.
Thus, the record shows that the trial court did not abuse its discretion in
denying Defendant's motion. LaGrand, 152 Ariz. at 487, 733 P.2d at 1070.
E. Evidence of flight and concealment
Defendant moved to preclude evidence of his flight and concealment
immediately before his arrest. Following a hearing on the matter, the court
denied the motion, admitted the evidence, and instructed the jury:
Running away or hiding after a crime has been committed does not itself
prove guilt. You may consider any evidence of the defendant's running away
or hiding, together with all the other evidence.
Concealing evidence after a crime has been committed does not itself prove
guilt. You may consider any evidence of the defendant's concealment of
evidence, together with all the other evidence.
Defendant argues that the evidence did not raise a reasonable inference of
a consciousness of guilt of kidnapping, murder, or molestation, was unduly
prejudicial, and that the jury instructions were erroneous.
**1195 *592  Evidence of flight from, or concealment of, a
crime usually constitutes an admission by conduct. State v. Edwards, 136
Ariz. 177, 184, 665 P.2d 59, 66 (1983). Within reason, the fact that flight
or concealment is remote in time from the crime goes to the weight, not the
admissibility, of the evidence. See State v. Reid, 114 Ariz. 16, 30, 559
P.2d 136, 150 (1976), cert. denied, 431 U.S. 921, 97 S.Ct. 2191, 53 L.Ed.2d
234 (1977). To be admissible, however, "there must be evidence of flight
from which can be inferred a consciousness of guilt for the crime
charged." Edwards, 136 Ariz. at 184, 665 P.2d at 66 (emphasis added).
Merely because a defendant is wanted on another charge, however, does not
make evidence of flight per se inadmissible. See State v. Jeffers, 135
Ariz. 404, 415, 661 P.2d 1105, 1116, cert. denied, 464 U.S. 865, 104 S.Ct.
199, 78 L.Ed.2d 174 (1983). Again, we review this evidentiary issue for an
abuse of discretion. See State v. Robinson, 165 Ariz. 51, 56, 796 P.2d 853,
858 (1990), cert. denied, 498 U.S. 1110, 111 S.Ct. 1025, 112 L.Ed.2d 1107
 Defendant was driving a stolen vehicle at the time of his flight
and was wanted for stealing the GMC and for numerous other offenses. His
knowledge of these then-pending charges is uncertain. As his attorney
stated, because Defendant did not testify at the hearing, "we will never
know what was in Mr. Bible's mind at the time he fled."
Defendant's flight and concealment showed substantial anxiety over
apprehension (high speed chase, running from the vehicle when cornered, and
camouflaging himself on a ledge with leaves). Nevertheless, approximately
an hour after his arrest, Defendant confessed to stealing the GMC. These
circumstances, including this prompt confession to the theft of the vehicle,
could justify an inference that Defendant was fleeing from some other, more
serious crime. See Edwards, 136 Ariz. at 184, 665 P.2d at 66; Tison, 129
Ariz. at 539-40, 633 P.2d at 348-49. In addition, because the evidence of
the crimes charged in this case necessarily included the theft of the GMC,
Defendant did not need to offer new, potentially damning evidence of the
GMC's theft to argue that he was fleeing only from a theft charge and not
from kidnapping, molestation, and murder charges. See State v. Hunter, 136
Ariz. 45, 49, 664 P.2d 195, 199 (1983) (quoting 2 J. Wigmore, Evidence in
Trials at Common Law § 276, at 129-30 (J. Chadbourn rev. 1979)). Thus,
under the facts of this case, we cannot say that the court abused its
discretion in admitting the flight and concealment evidence. See Edwards,
136 Ariz. at 184, 665 P.2d at 66; Jeffers, 135 Ariz. at 415, 661 P.2d at
1116; Tison, 129 Ariz. at 539-40, 633 P.2d at 348-49; Ariz.R.Evid. 403.
Nor can we say that the jury instruction constituted fundamental error. See
Gendron, 168 Ariz. at 155, 812 P.2d at 628; Hunter, 142 Ariz. at 90, 688
P.2d at 982.
F. Testimony about Defendant's prior statements
Defendant unsuccessfully moved to exclude statements he made while
incarcerated in 1984 or 1985 to Arizona Department of Corrections counselor
Robert Emerick. When asked whether Defendant showed any remorse for the
1981 sexual assault, Mr. Emerick stated "[t]he only remorse that [Defendant]
ever conveyed was that he had been caught and that there was somebody who
was left behind to report him." When asked what specific language Defendant
used, Mr. Emerick stated:
To the best of my recollection, we had [Defendant] roleplaying or giving us
an account of how he had controlled his cousin, and he had described having
a knife to her and then he described, 'I'll never make this mistake again,'
and his pupils in his eyes were about this big around.
I can just remember thinking, this, this man is very dangerous.
Mr. Emerick testified that interpreting Defendant's statement as showing
remorse for the assault "would have been completely out of character with
all the other things [Defendant] had presented in group." During cross-
examination, Mr. Emerick stated that he had worked with sex offenders**1196
*593 for nine years and could "only recall people who have left memorable
impressions about their sex deviance patterns, on about three people, Ricky
Bible being one of them." The court admitted this testimony to show
premeditation under Ariz.R.Evid. 803(3). Defendant argues that the
statements were irrelevant, improper hearsay, and unduly prejudicial.
 In this court, the State argues a theory of admissibility not pressed
in the trial court. The State contends that the statements are not hearsay
and were admissible under Ariz.R.Evid. 801(d)(2) We examine the propriety
of admitting the evidence under Rule 803(3)--the ground of admission
advanced by the State and accepted by the trial court. We therefore assume
--as did the trial court and the proponent of the evidence--that the
statements were hearsay. But see Ariz.R.Evid. 801(d)(2).
 Hearsay may be admissible if it is a "statement of the declarant's
then existing state of mind ... (such as intent, plan, motive, design,
mental feeling)." Ariz.R.Evid. 803(3). An essential element of the murder
charge was that Defendant committed the act with premeditation. See A.R.S.
§ 13- 1105(A). Although Defendant's statements could be interpreted in more
than one manner, they could reasonably be interpreted to mean that if
Defendant again committed a sex crime, he would not leave the victim alive
to testify against him. This tends to show Defendant's state of mind and is
relevant to show both premeditation and motive to kill. See State v.
Dickey, 125 Ariz. 163, 167, 608 P.2d 302, 306 (1980); State v. Mincey, 130
Ariz. 389, 404-05, 636 P.2d 637, 652-53 (1981), cert. denied, 455 U.S. 1003,
102 S.Ct. 1638, 71 L.Ed.2d 871 (1982); State v. Saiz, 103 Ariz. 567,
568-69, 447 P.2d 541, 542-42 (1968).
 Contrary to Defendant's arguments, the statements did not have to
refer to a specific victim and, within reason, temporal remoteness goes to
weight, not admissibility. See Mincey, 130 Ariz. at 404-05, 636 P.2d at
652-53; State v. Moore, 111 Ariz. 355, 356, 529 P.2d 1172, 1173 (1974).
[FN35] Although the statements are susceptible to varying interpretations,
it was for the jury to decide their precise meaning in light of the
circumstances and context. The court could have properly concluded that
these statements fall within the hearsay exception of Ariz.R.Evid. 803(3).
FN35. See also State v. Hobson, 234 Kan. 133, 671 P.2d 1365, 1382-84 (1983)
(finding statements made by defendant nearly two months before victim's
disappearance admissible in premeditated murder case); 2 Francis Wharton,
Wharton's Criminal Evidence § 307, at 101 (13th ed. 1972). But cf. United
States v. Crosby, 713 F.2d 1066, 1073 n. 7 (5th Cir.) (exculpatory journal
entries written over course of ten years properly excluded because "they in
no way related" to defendant's state of mind at time of crime), cert.
denied, 464 U.S. 1001, 104 S.Ct. 506, 78 L.Ed.2d 696 (1983).
 When the issue of undue prejudice is raised, we review determinations
under Ariz.R.Evid. 403 for an abuse of discretion. See State v. Taylor, 169
Ariz. 121, 126, 817 P.2d 488, 493 (1991). The record indicates that the
statements were made three or four years before the victim's abduction.
This time lag and the fact that the statements were made about a broad group
and were interpreted by Mr. Emerick all indicate that the statements'
probative value was not overwhelming. The testimony also had the very real
potential to be used improperly by the jury as character evidence.
Ariz.R.Evid. 404(b). On the other hand, the State had available, but did
not introduce, more explicit and damaging testimony from other individuals
who heard Defendant make similar statements closer to the time of the
victim's abduction. In sum, we cannot state that the court abused its
discretion by finding that the probative value of the statements was not
"substantially outweighed by the danger of unfair prejudice." Ariz.R.Evid.
403. Thus, the court did not abuse its discretion in admitting Mr.
G. Destruction of evidence
 In testing the blood found on Defendant's shirt, the State used
approximately seventy percent of the available **1197 *594 sample. Defendant
moved to preclude the test results, claiming that the testing destroyed the
usable sample and therefore violated his due process rights under the United
States and Arizona Constitutions. Defendant claims that the court erred in
denying this motion.
Under the United States Constitution, "unless a criminal defendant can show
bad faith on the part of the police, failure to preserve potentially useful
evidence does not constitute a denial of due process of law." Arizona v.
Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988).
This court similarly construed the Arizona Constitution's due process
clause. See State v. Youngblood, 173 Ariz. 502, 507-08, 844 P.2d 1152,
1157-58 (1993). [FN36] Assuming that the blood found on Defendant's shirt
was not preserved, [FN37] Defendant does not allege bad faith by the
State--a necessary element of a due process claim following the destruction
of such evidence. See Youngblood, 488 U.S. at 58, 109 S.Ct. at 337;
Youngblood, 173 Ariz. at 507-08, 844 P.2d at 1157-58. Indeed, the trial
court found that "a good faith effort ... was made to take only so much as
was needed for the State's tests and to try to leave something for the
defendant." Furthermore, the fact that the State uses evidence that has
been consumed through testing is not dispositive. See, e.g., United States
v. Castro, 887 F.2d 988, 999 (9th Cir.1989); State v. Pearson, 234 Kan.
906, 678 P.2d 605, 615 (Kan.1984); John P. Ludington, Annotation,
Consumption or Destruction of Physical Evidence Due to Testing or Analysis
by Prosecution's Expert as Warranting Suppression of Evidence or Dismissal
of Case Against Accused in State Court, 40 A.L.R.4th 594 § 5 (1985 & 1992
Supp.). Thus, we reject Defendant's claim.
FN36. The author of this opinion dissented in Youngblood but does not
register any dissent here. Even under the author's views, Defendant's due
process rights were not violated in this case. See Youngblood, 173 Ariz. at
511-14, 844 P.2d at 1161-64 (Feldman, C.J., dissenting).
FN37. We make no finding that the blood was not preserved. There is no
conclusive proof that Defendant was unable to perform DNA testing using
polymerase chain reaction technology. Thompson & Ford, DNA Typing, 75
Va.L.Rev. at 50 (polymerase chain reaction technology can be used to "
'type' the DNA in a single hair."). Nor is there any indication that the
DNA deteriorated to the extent that independent testing could not be
performed. Charles L. Williams, DNA Fingerprinting: A Revolutionary
Technique in Forensic Science and Its Probable Effects on Criminal
Evidentiary Law, 37 Drake L.Rev. 1, 6 (1987-88) (indicating that DNA testing
can be performed on samples at least five years old).
H. The trial court's alleged bias
Defendant argues that the trial judge improperly expressed dislike for his
attorneys. Defendant cites to instances where the judge interrupted defense
counsel's questioning or sua sponte objected to trial questioning. [FN38]
Ultimately, Defendant objected to these interjections, requesting that
future objections by the trial judge be addressed at side bar and "that the
Court, absent an objection from the State, not interrupt my examination."
The trial judge responded that:
FN38. Defendant also challenges certain pretrial statements made by the
trial judge. Although these statements may have put Defendant on notice of
any basis to challenge the judge for cause, Ariz.R.Crim.P. 10.1, "remarks
made outside the hearing of the jurors, even if prejudicial to the
appellant, could not keep the jury from exercising an impartial judgment on
the merits, and do not warrant a reversal." State v. Williams, 113 Ariz.
14, 16, 545 P.2d 938, 940 (1976).
I shall continue to control the proceedings in this court. Some other body
will have to decide whether my actions are reasonable or not. I will not be
intimidated by this presentation.
If you ask the same question over and over, I will stop it, and if you can't
keep track of where you are in your questions, I will, and apparently you
have learned nothing by this experience.
If you want to find fault with what I do as it occurs, you will have to take
appropriate action on the spot.
Defendant argues that the trial judge's actions were improper and violated
his due process rights.
**1198 *595  A trial judge must control the courtroom to help ensure a
fair trial. Ariz.R.Evid. 611. Trial judges "are not referees at
prize-fights but functionaries of justice." Johnson v. United States, 333
U.S. 46, 54, 68 S.Ct. 391, 395, 92 L.Ed. 468 (1948). Judges must be
impartial, State v. Carver, 160 Ariz. 167, 172, 771 P.2d 1382, 1387 (1989),
and avoid any appearance of partiality, State v. Brown, 124 Ariz. 97, 100,
602 P.2d 478, 481 (1979). A trial judge also must refrain from taking any
action calculated to influence the jury or likely to prejudice the
defendant. See State v. Williams, 113 Ariz. 14, 16, 545 P.2d 938, 940
 There is no indication that the trial judge's statements were
either designed to prejudice or likely to do so. Many of the judge's
statements were calculated to prevent repetitive, irrelevant, or
argumentative questioning. The trial judge has discretion to do this even
when the opponent does not object. See Ariz.R.Evid. 611; see also Johnson,
333 U.S. at 54, 68 S.Ct. at 395. Within reason, a judge does not display
bias or cause prejudice when acting sua sponte to control the courtroom and
the trial. See Williams, 113 Ariz. at 16, 545 P.2d at 940.
 The only troublesome point is a statement the trial judge made to the
attorney outside the presence of the jury while addressing a motion to
continue. The judge described another case in which that attorney had been
denied a continuance and was forced to interview witnesses during recesses.
The judge then stated, "I can tell you the judges of this court thought that
would teach you a lesson." Contrary to this statement, deciding whether to
grant a continuance involves "the interests of justice." Ariz.R.Crim.P.
8.5(b). The stakes are high in criminal cases, and critical decisions
should not rest, in whole or in part, on an attempt to somehow teach an
attorney a lesson.
 This statement, however, was made outside the presence of the jury and
could not have prejudiced Defendant. Williams, 113 Ariz. at 16, 545 P.2d at
940. Furthermore, the record shows that the interjections made by the trial
judge in the jury's presence did not unfairly prejudice Defendant. See
United States v. Eldred, 588 F.2d 746, 749-51 (9th Cir.1978); Williams, 113
Ariz. at 15-16, 545 P.2d at 939-40. Thus, we find no error.
I. The child molestation conviction and the weight of the evidence
1. Motion for judgment of acquittal
 Defendant claims that the trial court should have granted his
motion for acquittal on the child molestation count made at the close of the
State's case. He argues that the evidence on this count was inadequate to
support all elements of the offense. See A.R.S. § 13-1410 (1989); State v.
Noble, 152 Ariz. 284, 286, 731 P.2d 1228, 1230 (1987); State v. Roberts,
126 Ariz. 92, 95, 612 P.2d 1055, 1058 (1980). If reasonable minds could
differ as to whether the properly admitted evidence, and the inferences
therefrom, prove all elements of the offense, a motion for acquittal should
not be granted. State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869
(1990); Ariz.R.Crim.P. 20(a). We conduct a de novo review of the trial
court's decision, viewing the evidence in a light most favorable to
sustaining the verdict. State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111,
 Viewing the evidence in that light, the facts are: the victim was
nine years old and was abducted; her hands were bound, her clothes removed,
her panties hung on a tree limb, and her body left nude; a pubic-type hair
similar to Defendant's was found near the body in a clump of hair that
appeared to have been cut with Defendant's knife; and Defendant was not
wearing underwear when arrested hours after the abduction. Although an
autopsy revealed no sperm or semen, this was of little evidentiary value due
to decomposition. The pathologist who performed the autopsy testified that
the victim's "body was completely unclothed, completely naked, and ... her
hands were bound ... and I think that those two findings certainly would be
**1199 *596 indicative of some type of sexual molestation." While this is
not expert evidence, or if objected to necessarily admissible as lay
opinion, it states the common sense conclusion that the evidence permits an
inference of molestation. See Bond v. State, 273 Ind. 233, 403 N.E.2d 812,
817-18 (Ind.1980); see also People v. Enoch, 122 Ill.2d 176, 119 Ill.Dec.
265, 276, 522 N.E.2d 1124, 1135 (1988), cert. denied, 488 U.S. 917, 109 S.Ct.
274, 102 L.Ed.2d 263 (1988); Hines v. State, 58 Md.App. 637, 473 A.2d 1335,
1348-49 (1984), cert. denied, 300 Md. 794, 481 A.2d 239 (1984).
Other evidence links Defendant to the victim and to the crime scene. From
the evidence presented, the jury could infer that Defendant had the
requisite state of mind. See Noble, 152 Ariz. at 286, 731 P.2d at 1230;
Roberts, 126 Ariz. at 95, 612 P.2d at 1058. Although contrary inferences
are possible, a reasonable jury could have concluded beyond a reasonable
doubt that Defendant molested the victim. Indeed, this is the most logical
explanation for the crime. There is substantial evidence to warrant
conviction; nothing more is required. See Landrigan, 176 Ariz. at 4, 859
P.2d at 114. The trial court properly denied the motion for acquittal.
2. Motion for new trial
A new trial may be granted when "[t]he verdict is contrary to ... the
weight of the evidence." Ariz.R.Crim.P. 24.1(c)(1). Defendant argues that
the evidence does not support the molestation conviction and that the trial
court abused its discretion in denying his motion for new trial. As noted
above, there is substantial evidence to warrant conviction of child
molestation. The trial judge did not abuse his discretion in denying the
motion for new trial. Landrigan, 176 Ariz. at 4, 859 P.2d at 114. Thus, we
find no error.
J. Statements by the victim's mother
The trial court excluded the testimony of the victim's mother regarding her
pre- and post-hypnotic description of the vehicles and drivers she saw the
morning of the abduction. The court, however, allowed police officers and
the victim's father to testify as to her pre-hypnotic statements. Defendant
argues that the victim's mother became unavailable when the State failed to
hypnotize her according to the requirements of State ex rel. Collins, 132
Ariz. at 210-11, 644 P.2d at 1296-97. Implicitly conceding that her
pre-hypnotic statements were admissible under Ariz.R.Evid. 803(2), Defendant
claims a denial of his Sixth Amendment right to confront the victim's
 When hearsay testimony comes "within a firmly rooted exception to the
hearsay rule, the Confrontation Clause is satisfied." White v. Illinois,
502 U.S. 346, ----, 112 S.Ct. 736, 743, 116 L.Ed.2d 848 (1992). Distraught
and fearful because her daughter was missing, the victim's mother described
the vehicles and their drivers to law enforcement officers shortly after she
observed the passing vehicles. By so doing, she attempted to assist the
officers in finding her daughter; she had every motive to be accurate and
tell the truth and none at all to fabricate or alter her description.
Clearly the victim's mother was speaking in a state of excitement likely to
ensure spontaneity. Ariz.R.Evid. 803(2). Because the challenged testimony
fit within the excited utterance hearsay exception, id., Defendant's
confrontation rights were not violated. See, e.g., White, 502 U.S. at ----
- ----, 112 S.Ct. at 741-44; Arizona v. Lengyel, 502 U.S. 1068, 112 S.Ct.
960, 117 L.Ed.2d 127 (1992) (remanding for further consideration in light of
White ); Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538- 39, 65
L.Ed.2d 597 (1980); State v. Yslas, 139 Ariz. 60, 65, 676 P.2d 1118, 1123
K. Dog tracking testimony
 James Weeks testified regarding the actions of his tracking dog, Bo,
in searching for the victim and Defendant. He first scented Bo to search
for the victim near the area where her bicycle was located. Later that day,
Bo was used to track Defendant. Mr. Weeks testified that he scented the dog
in the GMC when searching for Defendant.
**1200 *597 I brought [Bo] up to the [GMC] on the driver's side where the
door was open. I immediately jumped my dog onto the floorboard of the
driver's side and immediately he went to the, through the two seats in the
front into the back seat. At this time I jerked my dog out of the back seat
on the lead. I put him on the front seat, the driver's side. I made him
sit. I scented him, told him to scent, and told him to find.
The prosecutor then asked whether Bo, when used to track Defendant, was
tracking the victim's or Defendant's scent (implying that the dog may have
smelled the victim's scent on Defendant). Mr. Weeks answered that there was
a "doubt in my mind that he was working either particular one at that time."
Defendant argues that this testimony was irrelevant, that there was no
proper foundation for the question, and that the testimony was unfairly
prejudicial. Defense counsel did not make any relevancy objection or motion
to strike at trial. Thus, absent fundamental error, this issue is
precluded. Gendron, 168 Ariz. at 154-55, 812 P.2d at 627-28.
The question is relevant because it seeks testimony tending to connect
Defendant with the victim. The answer may have had minimal relevancy, but
even if it did not, we find no fundamental error. Defendant has not shown
that the foundation for the tracking evidence was inadequate under Roscoe,
145 Ariz. at 220-21, 700 P.2d at 1320-21. Indeed, Mr. Weeks testified to
the Roscoe foundational requirements without objection. [FN39] Nor do we
see how Mr. Weeks' answer was unfairly prejudicial in light of the following
unobjected-to foundational exchange:
FN39. Defendant's real objection may be with Roscoe itself. Defendant seeks
to graft onto Roscoe an additional requirement that a tracking dog cannot be
taken off the scent and given a fresh start. We decline to revise the clear
Roscoe requirements by relying, as does Defendant, on one of the many cases
cited in a case distinguished in Roscoe. See State v. Storm, 125 Mont. 346,
238 P.2d 1161, 1176 (1952), cited in Terrell v. State, 3 Md.App. 340, 239
A.2d 128, 132-33 n. 3, 137 (1968), in turn cited in Roscoe, 145 Ariz. at
220, 700 P.2d at 1320.
Q. [L]et's assume that your dog is scented to find one person and you are
off searching for that person but that person is never found, in other
words, your search is interrupted before the person is found. He's borrowed
and then rescented on a new person. Does that cause a problem with the dog?
A. Possibly there could be a problem of knowing which scent that he's
actually following, yes, there could be, as far as knowing exactly which
scent trail that he is following.
Thus, we reject Defendant's claims.
L. Outburst by the victim's father
During testimony about Defendant's 1981 sexual assault and kidnapping
convictions, the victim's father ran out of the courtroom and, once outside,
yelled "[t]hat fucking asshole." The judge, in front of the jury, stated:
I think the record should reflect at this point that [the victim's father]
went out of the courtroom obviously disturbed and yelled an obscenity which
I'm sure the jury heard, as I did. I think it might be well to remind the
jury what you are told at the beginning of the case ... which is that you
are not to base your decision in this case on emotion or prejudice or
sympathy, ... but to base it on the facts. You notice we don't tell you not
to have emotion or not to have sympathy, just that you don't base your
decision on that. You base it on the facts that are presented in court, so
please disregard the outburst. I'm sure we can understand the feelings that
were being vented, but that's not the way that decisions are made.
As an additional remedial measure, the trial court excluded the victim's
father from the courtroom for the remainder of the trial.
Defense counsel moved for a mistrial, arguing that the outburst "completely
undermined whatever defense that we had." The trial court denied the
I don't think it's really the substance for a mistrial. I don't think there
is any doubt in the jury's mind about how [the **1201 *598 victim's father]
feels about Mr. Bible. That's certainly been clear for days.[ [FN40]] It's
just the venting of that in an inappropriate way that I think troubles us.
FN40. Whatever made it clear at trial is not clear from the record on
I don't think the jury is going to make its decision based on what he said.
I think they will base it on the evidence.
Defendant argues that the trial court erred in denying his motion for
 When a motion for mistrial is based on evidentiary concerns, we review
for an abuse of discretion. Koch, 138 Ariz. at 101, 673 P.2d at 299 (citing
cases). This deferential standard of review applies because the trial judge
is in the best position to evaluate "the atmosphere of the trial, the manner
in which the objectionable statement was made, and the possible effect it
had on the jury and the trial." Id. (citing cases).
The cases relied on by Defendant are inapposite. In State v. Gallagher, 97
Ariz. 1, 396 P.2d 241 (1964), disapproved on other grounds by State v.
Greenawalt, 128 Ariz. 388, 395, 626 P.2d 118, 125, cert. denied, 454 U.S.
848, 102 S.Ct. 167, 70 L.Ed.2d 136 (1981), we reversed a murder conviction
on grounds independent of a spectator's "hostile views." Gallagher, 97
Ariz. at 8, 396 P.2d at 245-46. In Taylor v. State, 55 Ariz. 29, 97 P.2d
927 (1940), serious prosecutorial misconduct may or may not have required
reversal but, when coupled with the audience's applause after the
prosecutor's closing argument, reversal was required. Id. at 40, 97 P.2d at
932. In this case, we are presented with a serious but isolated incident by
a murder victim's father.
 The court did not exclude the victim's father before the outburst, and
the record suggests that some outburst may have been anticipated.
Defendant, however, did not object to the presence of the victim's father
during trial. Indeed, in a pretrial discussion addressing the issue, trial
counsel noted that the victim's father had "become a little unglued" in
pretrial proceedings but that he had "no problem" with the victim's father
remaining in the courtroom after he testified.
So far as this record shows, the victim's father had taken no action at
trial warranting reprimand or comment prior to his outburst. The substance
of his comment and its context make clear that strong emotion prompted the
outburst. No information was conveyed other than the father's animosity
toward Defendant, a feeling that could hardly have surprised the jurors. In
light of the nature of the outburst, the prompt instruction given the jury,
and the exclusion of the victim's father from the remainder of trial, we do
not believe that the trial court abused its discretion in denying the motion
for mistrial. See Messer v. Kemp, 760 F.2d 1080, 1086-88 (11th Cir.1985)
(affirming denial of mistrial after victim's father lunged at and threatened
defendant, when jury admonished, jurors polled as to impact of incident, and
outburst not calculated to influence jury), cert. denied, 474 U.S. 1088, 106
S.Ct. 864, 88 L.Ed.2d 902 (1986); see generally Jay M. Zitter, Annotation,
Emotional Manifestations by Victim or Family of Victim During Criminal Trial
as Ground for Reversal, New Trial, or Mistrial, 31 A.L.R.4th 229 (1984);
Jay M. Zitter, Annotation, Disruptive Conduct of Spectators in Presence of
Jury During Criminal Trial as Basis For Reversal, New Trial, or Mistrial, 29
A.L.R.4th 659 (1984).
M. Fundamental error claims
Defendant claims that the trial court committed several fundamental
errors. As noted more fully above, see supra § A(3)(e), fundamental error
is error that deprived a defendant of a fair trial. Hunter, 142 Ariz. at
90, 688 P.2d at 982. The doctrine applies in "extremely limited
circumstances" where the error was "clear, egregious, and curable only via a
new trial." Gendron, 168 Ariz. at 155, 812 P.2d at 628.
1. Evidence obtained from the seizure of Defendant's clothing
Defendant argues that it was fundamental error to admit evidence obtained
from **1202 *599 clothing taken from him when arrested. Defendant does not
argue that he was improperly arrested or that the State could not take his
clothes during his incarceration. Rather, Defendant argues that the State
improperly tested his clothes without a warrant in violation of his Fourth
 Generally, a warrant is required before a valid search or
seizure can occur. See Katz v. United States, 389 U.S. 347, 356-57, 88 S.Ct.
507, 514, 19 L.Ed.2d 576 (1967); see also Ariz. Const. art. II, § 8. There
are, of course, various exceptions to this rule. One exception is a search
incident to a valid arrest. See generally United States v. Edwards, 415
U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). In this case, the clothing
was not seized as evidence of the crime for which Defendant was first
jailed, and the testing was performed without probable cause days after
seizure of the items. Thus, Edwards is at least factually distinguishable.
Arizona, however, is among the majority of courts finding that this type of
warrantless seizure does not violate a defendant's Fourth Amendment rights.
See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 5.3(b), at 494 n. 79 (2d ed. 1987 & 1993 Supp.) (citing cases).
In the present case, the authorities merely tested that which had properly
come into their possession. See, e.g., United States v. Johnson, 820 F.2d
1065, 1067-68, 1071-72 (9th Cir.1987) (currency properly admitted in bank
robbery prosecution when defendant already in police custody on unrelated
charge before becoming a suspect in bank robbery); State v. Carriger, 123
Ariz. 335, 338, 599 P.2d 788, 791 (1979) (keys properly admitted in robbery
and murder case when removed from police property locker for testing,
without a warrant, three months after arrest), cert. denied, 444 U.S. 1049,
100 S.Ct. 741, 62 L.Ed.2d 736 (1980); State v. Gonzales, 111 Ariz. 38, 44,
523 P.2d 66, 72 (1974) (clothing properly admitted in murder and rape case
when defendant already in police custody on unrelated charge). There was no
error in admitting the evidence and its fruits, and thus there can be no
2. Blood stain evidence
Defendant argues that it was fundamental error to admit testimony about
human blood stains found on his pants and boots. Specifically, Defendant
claims that he was not linked to these stains on the day of the victim's
abduction. In making his argument, Defendant relies on distinguishable
 In State v. Routhier, 137 Ariz. 90, 98-99, 669 P.2d 68, 76-77
(1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 985, 79 L.Ed.2d 221 (1984),
for example, it was error to admit a bloody shirt found near the victim's
body. No testimony linked that defendant to the shirt and, accordingly,
lack of relevancy precluded admission. Id. at 99, 669 P.2d at 77. In this
case, however, Defendant was wearing the pants and boots when apprehended
hours after the victim's abduction. Similarly, the closeness in time
between the abduction and Defendant's arrest raises an inference that he
wore this clothing at the time the victim was killed. Thus, the evidence
was relevant and admissible; there was no error and can be no fundamental
error. For similar reasons, we also reject Defendant's argument that the
court erred in admitting evidence of blood stains in and under the GMC
because they could not be positively identified as human blood. See
Carriger, 123 Ariz. at 339, 599 P.2d at 792.
3. Child molestation jury instruction
 The instruction given on the child molestation count reads as follows:
The crime of molestation of a child requires proof that the defendant
knowingly touched directly or indirectly the private parts of a child under
the age of 15 years, or caused a child under the age of 15 years to touch
directly or indirectly the private parts of the defendant.
Defendant claims that this instruction erroneously omitted a requirement
that the act be motivated by an unnatural or abnormal sexual interest or
intent. Defendant argues *600 **1203 that this is a necessary element of the
offense. Without again addressing the issue, we will assume that it is.
See In re Pima County Juvenile Appeal No. 74802-2, 164 Ariz. 25, 33, 790
P.2d 723, 731 (1990). But cf. In re Maricopa County Juvenile Action No. JV-
121430, 172 Ariz. 604, 606-07, 838 P.2d 1365, 1367-68 (Ct.App.1992).
Because Defendant did not object at trial, we must decide whether this
omission was fundamental error.
"The failure to instruct on a necessary element of an offense is not
fundamental error where there is no issue as to that element." State v.
Avila, 147 Ariz. 330, 338, 710 P.2d 440, 448 (1985). Initially, we note
that the asserted trial defense in this case did not raise the motivation
issue. Although Defendant pleaded not guilty--thus requiring the State to
prove every element of the charge--his defense at trial was that he did not
commit the physical act charged. Defendant did not assert that his
motivation for committing the act was natural and normal or that the act was
The facts of this case--both those found by the jury and those undisputed
in the record--show that Defendant's motivation was not in question. The
guilty verdict on the kidnapping charge necessarily means that the jury
found beyond a reasonable doubt that Defendant knowingly restrained the
victim. The undisputed facts show that she was restrained by force--her
hands were bound. As to the molestation charge, considering the instruction
given, the guilty verdict necessarily means that the jury found beyond a
reasonable doubt that Defendant knowingly had sexual contact with the
nine-year-old victim. Defendant was approximately twenty-six years old at
the time. The age difference, the bound hands, the panties hung on a tree
limb, and the nude body belie any suggestion that Defendant was motivated by
anything other than an unnatural or abnormal sexual interest with respect to
children. Cases with facts less compelling support this conclusion.
In State v. Roberts, 126 Ariz. 92, 612 P.2d 1055 (1980), the defendant
challenged the sufficiency of the evidence for his child molestation
conviction. Testimony in that case showed that the defendant moved his
hands inside the diaper of a seven-year-old emotionally and physically
retarded girl. Id. at 93, 612 P.2d at 1056. We affirmed the conviction,
stating that "[t]hese acts, by their very nature, manifest that defendant
was motivated by an unnatural or abnormal sexual interest or intent with
respect to children." Id. at 95, 612 P.2d at 1058 (emphasis added); see
also State v. Brooks, 120 Ariz. 458, 461, 586 P.2d 1270, 1273 (1978)
(finding acts "by their very nature manifest" the required motivation);
State v. Johnson, 120 Ariz. 21, 22, 583 P.2d 1341, 1342 (1978) (same). In
light of Defendant's trial strategy, the facts necessarily found by the
jury, and the undisputed facts of record, this case law amply demonstrates
that the omission in the jury instruction was not fundamental error in this
case. See Cook, 170 Ariz. at 50, 821 P.2d at 741.
N. Prosecutorial misconduct
 Defendant claims that prosecutorial misconduct deprived him of his
due process rights. Prosecutorial misconduct does not require reversal
"unless the defendant has been denied a fair trial as a result of the
actions of counsel." State v. Dumaine, 162 Ariz. 392, 400, 783 P.2d 1184,
1192 (1989) (citing State v. Hallman, 137 Ariz. 31, 37, 668 P.2d 874, 880
(1983)); accord Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464,
2471, 91 L.Ed.2d 144 (1986).
[The prosecutor] is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is
as compelling as its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it shall win a case, but
that justice shall be done.... [W]hile he may strike hard blows, he is not
at liberty to strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to use
every legitimate means to bring about a just one.
**1204 *601 Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79
L.Ed. 1314 (1935); accord Pool v. Superior Court, 139 Ariz. 98, 103, 677
P.2d 261, 266 (1984). With this standard in mind, because no objection was
made, we again review for fundamental error.
1. Comments about the jury questionnaire
 During voir dire, the prosecutor stated that some of the questions in
the questionnaire "may seem a little silly to you, and some of them are
silly, as a matter of fact, but please be very honest when you fill out this
form." Defense counsel told the venire that he wrote the questionnaire and
took exception to its characterization as silly. While the prosecutor's
comment was inappropriate, we believe that it falls far short of actionable
misconduct. Furthermore, the trial court told the venire:
I have gone through all of these proposed questions and approved them, so
they are approved questions by the Court. Don't worry about what the
attorneys think about them. I have approved them and they should all be
answered by you truthfully.
We find no error and, accordingly, no fundamental error.
2. Vouching for witnesses
 It is black letter law that it is improper for a prosecutor
to vouch for a witness. Dumaine, 162 Ariz. at 401, 783 P.2d at 1193.
Two forms of impermissible prosecutorial vouching exist: (1) when the
prosecutor places the prestige of the government behind its witness, and (2)
where the prosecutor suggests that information not presented to the jury
supports the witness's testimony. In addition, a lawyer is prohibited from
asserting personal knowledge of facts in issue before the tribunal unless he
testifies as a witness.
Id. (citation omitted). The prosecutor in this case made the following
declaration in opening statement:
I promise you that I'm gonna be honest with you, that the witnesses that I
call, there is a reason for them to be here. They have something important
to tell you. I'm not gonna waste your time. If there is [sic] two or three
people that did the same thing in this case, you will probably only hear
from one of them. It's gonna be a straightforward, no nonsense case.
But as you know, we wouldn't be here unless what I'm about to tell you
This statement clearly includes both forms of improper vouching. Dumaine,
162 Ariz. at 401, 783 P.2d at 1193. If Defendant had objected, the court
should have sustained the objection and instructed the jury to disregard the
remark. Such judicial action would have been appropriate even absent an
objection. Cf. Johnson, 333 U.S. at 54, 68 S.Ct. at 395. There was no
objection, however, and we again review for fundamental error.
 In determining whether a prosecutor's improper statement
constitutes fundamental error, we examine, under the circumstances, whether
the jurors were probably influenced and whether the statement probably
denied Defendant a fair trial. See, e.g., Atwood, 171 Ariz. at 611, 832
P.2d at 628; Dumaine, 162 Ariz. at 401, 783 P.2d at 1193; Valdez, 160
Ariz. at 15, 770 P.2d at 319. The focus is on the fairness of the trial,
not the culpability of the prosecutor. Atwood, 171 Ariz. at 608, 832 P.2d
at 625; Valdez, 160 Ariz. at 15, 770 P.2d at 319. Given the entire record,
we do not believe that the statement tipped the scales of justice and denied
Defendant a fair trial. Thus, the prosecutor's statement, although highly
improper, did not constitute fundamental error in this case.
3. Speculation that the victim was tortured
In opening statement, the prosecutor suggested that the victim was "perhaps
tortured." In closing argument, the prosecutor stated that, after the
victim's hands were tied, she may have been "forced into some sort of
torment." Defendant claims **1205 *602 that these statements were
unsupported by evidence and thus improper.
 The comment during opening statement that the victim was
"perhaps tortured" was improper. Opening statement is counsel's opportunity
to tell the jury what evidence they intend to introduce. See Charles M.
Smith, Arizona Practice--Civil Trial Practice § 455, at 395 (1986). Opening
statement is not a time to argue the inferences and conclusions that may be
drawn from evidence not yet admitted. Id. § 455, at 395; § 457, at 396.
There was no direct evidence that the victim was tortured, and the record
does not indicate that any such evidence was anticipated when opening
statements were made. Accordingly, the reference to "torture" during opening
statement was improper.
 The comment during closing argument that the victim may have
been tormented was proper. Unlike opening statements, during closing
arguments counsel may summarize the evidence, make submittals to the jury,
urge the jury to draw reasonable inferences from the evidence, and suggest
ultimate conclusions. Id. § 527, at 455-56; see also State v. Runningeagle,
176 Ariz. 59, 64, 859 P.2d 169, 174 (1993); Amaya-Ruiz, 166 Ariz. at 171,
800 P.2d at 1279. Given the evidence presented at trial, we find no
impropriety in the prosecutor suggesting--during closing argument --that the
victim had been tormented. The nine-year-old victim was abducted, taken to
a remote area, her clothes removed and scattered, her hands tied, and her
head beaten. Such evidence would permit a jury to infer that she had been
subject to both physical and emotional torment.
 Thus, we hold that the comment during opening statement was improper
but find no reason to reverse. While, the comment during opening statement
was improper at that point, it was a reasonable inference from evidence
later introduced and would have been proper during closing argument.
Therefore, under the facts of this case, the improper comment did not
deprive Defendant of a fair trial. We find no fundamental error.
4. Reference to the victim's rights
In opening statement, after mentioning that Defendant deserved a fair
trial, the prosecutor added that your goal is not necessarily just to give
Ricky Bible a fair trial. Your goal in this case is going to be justice.
And justice doesn't mean just giving Ricky Bible a fair trial. It means
looking at the rights of other people, too, like [the victim], and those
rights include those that are enumerated in the Declaration of Independence,
life, liberty and the pursuit of happiness. And there won't be any of that
for [the victim].
Remarkably, during closing argument, the prosecutor made a more detailed
reference to the victim's rights:
[T]he defendant and all defendants have rights and a right to a fair trial.
There has been a fair trial.
But there are other rights. All of us have rights, including [the victim].
Perhaps the most succinct rights, the most succinct discussion of the sort
of rights that we all, including [the victim], have, were described in the
Declaration of Independence in 1776.
[The victim's] rights were terminated on June 6 of 1988. She has no right
to life. That was terminated with blows to her head. There is no liberty
for a nine-year-old girl who is taken off of her bike, tied up and taken
away from her family. And there certainly is no pursuit of happiness from
Your duty is to protect the defendant's rights and also [the victim's]
Defendant challenges these statements.
 It cannot be doubted that victims of crime, and their
families, have certain rights. See Ariz. Const. art. II, § 2.1; A.R.S. §§
13-4401 to 13-4437. It is equally clear, however, that these rights do not,
and cannot, conflict with a defendant's right to a fair trial. U.S. Const.
amend. VI, **1206 *603 XIV; Ariz. Const. art. II, § 4; see generally State
ex rel. Romley v. Superior Court, 172 Ariz. 232, 836 P.2d 445
(Ct.App.1992). The jury finds facts and applies the law through the judge's
instructions. A trial is "fair" when, according to legal principles and
requirements, a jury's determination is based on the evidence admitted and
the instructions given.
Appeals to the jury's innate sense of fairness between a defendant and the
victim may have surface appeal but cannot prevail. A jury in a criminal
trial is not expected to strike some sort of balance between the victim's
and the defendant's rights. The judge, not the jury, balances conflicting
rights; the jury must find the facts and apply the judge's instructions.
Accordingly, the clear weight of authority shows the impropriety of the
prosecutor's statements. See, e.g., McNair v. State, 1992 WL 172200, at
*17-*19, --- So.2d ----, ---- - ---- (Ala.Cr.App.Ct. July 24, 1992);
Jennings v. State, 453 So.2d 1109, 1113-14 (Fla.1984), vacated on other
grounds, 470 U.S. 1002, 105 S.Ct. 1351, 84 L.Ed.2d 374 (1985); People v.
Henderson, 142 Ill.2d 258, 154 Ill.Dec. 785, 815-16, 568 N.E.2d 1234,
1264-65 (1990), cert. denied, 502 U.S. 882, 112 S.Ct. 233, 116 L.Ed.2d 189
(1991); State v. Marshall, 123 N.J. 1, 586 A.2d 85, 171 (1991), cert.
denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed.2d 694 (1993); Bell v.
State, 724 S.W.2d 780, 802-03 (Tex.Cr.App.1986), cert. denied, 479 U.S.
1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987). The statements encouraged the
jury to decide the case on emotion and ignore the court's instructions. The
statements should have been stricken and followed with corrective jury
instructions. Because there were no objections, however, we again look for
 The cases cited above, under their facts, found that improper
references to victim's rights did not result in reversible error. See
McNair, 1992 WL 172200, at *19, --- So.2d at ----; Jennings, 453 So.2d at
1113-14; Henderson, 154 Ill.Dec. at 815-16, 568 N.E.2d at 1264-65;
Marshall, 586 A.2d at 171; Bell, 724 S.W.2d at 803. In this case, the
preliminary and final jury instructions focused the relevant inquiry and
helped ensure that Defendant received a fair trial. These instructions,
coupled with the strength of the evidence against Defendant, show that
Defendant was not denied a fair trial. See State v. Slemmer, 170 Ariz. 174,
178, 823 P.2d 41, 45 (1991); Cook, 170 Ariz. at 50, 821 P.2d at 741. Thus,
the victim's rights statements did not constitute fundamental error in this
O. Death sentence issues
In sentencing Defendant on the murder conviction, the trial court found
three aggravating circumstances: 1) that Defendant previously had been
convicted of felonies involving the use or threat of violence; 2) that he
committed the murder in an especially cruel manner; and 3) that he was an
adult and the victim was less than fifteen years of age. Finding that no
mitigating circumstances outweighed these aggravating circumstances, the
court sentenced Defendant to death. Defendant makes several challenges to
the imposition of the death penalty.
 "[W]e must review carefully and with consistency death penalty cases
and not engage in a 'cursory' or 'rubber stamp' type of review." State v.
Watson, 129 Ariz. 60, 63, 628 P.2d 943, 946 (1981). We independently search
the record to determine whether the death sentence is appropriate. See
State v. Lopez, 174 Ariz. 131, 153, 847 P.2d 1078, 1090 (1992). In making
our independent review, we obey the principle that the Eighth Amendment
requires the State to " 'channel the sentencer's discretion by clear and
objective standards that provide specific and detailed guidance, and that
make rationally reviewable the process for imposing a sentence of death.' "
Arave v. Creech, 507 U.S. 463, ----, 113 S.Ct. 1534, 1540, 123 L.Ed.2d 188
(1993) (quoting Lewis v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092, 3099,
111 L.Ed.2d 606 (1990)). We also bear in mind that Arizona's system of
capital sentencing must perform a genuine, narrowing function. It is not
enough that an aggravating circumstance is determinate; the sentencing
**1207 *604 scheme must " 'genuinely narrow the class of persons eligible
for the death penalty.' " Creech, 507 U.S. at ----, 113 S.Ct. at 1542
(quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77
L.Ed.2d 235 (1983)). Thus, aggravating circumstances must enable our trial
judges "to distinguish those who deserve capital punishment from those who
do not ... [and] must provide a principled basis for doing so." Creech, 507
U.S. at ----, 113 S.Ct. at 1542.
1. Aggravating circumstances
a. Prior violent felonies
Defendant claims the court erred in finding that his 1981 convictions for
kidnapping and sexual assault were felonies involving the use or threat of
violence on another person. See A.R.S. § 13-703(F)(2). "If, under the
statutory definition of the crime, the defendant could commit or be
convicted of the crime without the use or threat of violence, the prior
conviction cannot qualify as a statutory aggravating circumstance." State
v. Fierro, 166 Ariz. 539, 549, 804 P.2d 72, 82 (1990); accord Schaaf, 169
Ariz. at 333, 819 P.2d at 919.
 The State initially asks that we overrule Fierro and Schaaf. We
decline to do so and reaffirm their rule. See Schaaf, 169 Ariz. at 333, 819
P.2d at 919 (refusing similar request to overrule State v. Gillies, 135
Ariz. 500, 662 P.2d 1007 (1983), cert. denied, 470 U.S. 1059, 105 S.Ct.
1775, 84 L.Ed.2d 834 (1985)). The State concedes, and we find, that
kidnapping under A.R.S. § 13-1304(A) may be committed without the use or
threat of violence. See A.R.S. § 13-1301(2). Thus, we turn to the sexual
 In 1981, sexual assault was defined as "intentionally or knowingly
engaging in sexual intercourse or oral sexual contact with any person not
his or her spouse without consent of such person." A.R.S. § 13-1406(A).
Although "without consent" included use or threats of force, A.R.S. § 13-
1401(5)(a), it also included intentionally deceiving a victim, A.R.S. §§ 13-
1401(5)(c), (d). Furthermore, a victim was incapable of valid consent "by
reason of mental disorder, drugs, alcohol, sleep or any other similar
impairment." A.R.S. § 13-1401(5)(b). Thus, neither the use nor the threat
of violence was a necessary element for sexual assault. As a result, the
trial court erred by relying on the 1981 kidnapping and sexual assault
convictions in finding an aggravating circumstance under A.R.S. §
b. Especially Cruel
 Defendant argues that the prosecutor did not show that the
murder was especially cruel. See A.R.S. § 13-703(F)(6). [FN41] To properly
find cruelty, the State "must prove beyond a reasonable doubt that the
victim was conscious and suffered pain or distress at the time of the
offense." State v. Jimenez, 165 Ariz. 444, 453, 799 P.2d 785, 794 (1990).
The pain or distress may be mental or physical. See State v. Hinchey, 165
Ariz. 432, 438, 799 P.2d 352, 358 (1990), cert. denied, 499 U.S. 963, 111
S.Ct. 1589, 113 L.Ed.2d 653 (1991); State v. Libberton, 141 Ariz. 132, 139,
685 P.2d 1284, 1291 (1984). If the evidence of consciousness is
inconclusive, no cruelty has been shown. See State v. Medrano, 173 Ariz.
393, 397, 844 P.2d 560, 564 (1992).
FN41. The trial court found that the murder was heinous and depraved but
that, when "compared to other murder cases, the murder was not especially
heinous and depraved within the legal meaning." But see Roscoe, 145 Ariz.
at 226-27, 700 P.2d at 1326-27. Heinous conduct and depraved conduct are
not before us. See State v. Richmond, 136 Ariz. 312, 320, 666 P.2d 57, 65,
cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983).
 The trial court found that the victim suffered both physical and
mental pain prior to death. The State's medical expert could not say that
the victim was conscious during or after any of the blows to her head.
Thus, this evidence cannot support a cruelty finding. See Jimenez, 165
Ariz. at 454, 799 P.2d at 795.
Other facts do support the finding. The victim's clothes were removed
intact, without being torn or cut, thus indicating her hands were tied after
she was naked. The fact that her hands were bound indicates **1208 *605
that she was conscious and tied-up to prevent struggling. There would be no
need to bind an unconscious victim. Her hands were bound tightly, leaving
indentations on her wrists observable more than three weeks later.
Reasonable inferences from this evidence are that the victim was alive,
conscious, and stripped before she was bound and that she was conscious when
This evidence strongly supports a finding that a conscious nine-year-old
victim suffered physical and, even more, mental anguish before being killed.
Obviously, the victim would have been terrified. Nor can it be argued that
the mental and physical pain inflicted was unforeseen or fortuitous. Thus,
we find that the killing was especially cruel. See Roscoe, 145 Ariz. at
226, 700 P.2d at 1326; cf. State v. Poland, 132 Ariz. 269, 285, 645 P.2d
784, 800 (1982) ("There was no evidence of suffering by the guards. The
autopsy revealed no evidence that they had been bound or injured prior to
being placed in the water.").
c. Adult defendant and child victim
There is no question about the third aggravating circumstance. When the
victim was killed, she was less than fifteen years old and Defendant was an
adult. Thus, the A.R.S. § 13-703(F)(9) aggravating circumstance was
present. See State v. Stanley, 167 Ariz. 519, 528, 809 P.2d 944, 953, cert.
denied, 502 U.S. 1014, 112 S.Ct. 660, 116 L.Ed.2d 751 (1991).
2. Mitigating circumstances
Defendant argues that the trial court erred in considering mitigating
evidence. Specifically, Defendant claims that the court improperly rejected
four mitigating circumstances:
1. Defendant's ability to appreciate the wrongfulness of his conduct or
conform his conduct to the requirements of law was substantially impaired;
2. Defendant was intoxicated and suffering from withdrawal symptoms at the
time of the offense;
3. Defendant's difficult family history; and
4. Defendant's substantial family support.
We consider Defendant's claims in turn.
 The trial court must consider the factors in A.R.S. § 13- 703(G)
as well as "any aspect of the defendant's character or record and any
circumstance of the offense relevant to determining whether a sentence less
severe than death is appropriate." State v. Greenway, 170 Ariz. 155, 169,
823 P.2d 22, 36 (1992) (citing cases). Defendant must prove factors
supporting mitigation by a preponderance of the evidence. State v. Brewer,
170 Ariz. 486, 504, 826 P.2d 783, 801, cert. denied, 506 U.S. 872, 113 S.Ct.
206, 121 L.Ed.2d 147 (1992). We independently examine the mitigating
evidence to determine whether the death sentence is justified. Fierro, 166
Ariz. at 551-52, 804 P.2d at 84-85.
 The one statutory mitigating factor argued by Defendant is that his
"capacity to appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law was significantly impaired, but not so
impaired as to constitute a defense." A.R.S. § 13-703(G)(1). Defendant
argues that his substance abuse contributed to the offense and is a
mitigating circumstance. Defendant's medical expert indicated that absent
drug consumption and withdrawal symptoms, it was less likely that Defendant
would have killed and that addiction and withdrawal made it more difficult
for him to conform to the requirements of law. Other testimony indicated
that Defendant had a history of drug use and that, absent drug use, he is a
Defendant's expert admitted that the drug history he relied on came largely
from Defendant. This expert had reservations about Defendant's truthfulness
regarding his criminal activities and admitted that nothing indicated
Defendant was unable to appreciate the wrongfulness of his actions. Although
Defendant claimed to have been deprived of alcohol and drugs for several
days before the murder, his expert admitted that Defendant had been drinking
during *606 **1209 that time period. Furthermore, when arrested, the GMC
Defendant was driving contained eighteen full mini-bottles of vodka. There
was no evidence Defendant was "suffering" from alcohol deprivation. Nor
does the record support a claim that Defendant was intoxicated when the
offense was committed; testimony indicated that he acted normally both
before and after his arrest. There is no evidence that Defendant used drugs
or, absent the two empty 50-milliliter vodka bottles, consumed alcohol the
day of the murder.
In sum, there is little evidence supporting Defendant's mitigation claim
under A.R.S. § 13-703(G)(1). On this record we find no substantial
impairment of Defendant's capacity to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of the law. See,
e.g., Stanley, 167 Ariz. at 528-31, 809 P.2d at 953-56; State v. Wallace,
160 Ariz. 424, 426, 773 P.2d 983, 985 (1989), cert. denied, 494 U.S. 1047,
110 S.Ct. 1513, 108 L.Ed.2d 649 (1990); Greenawalt, 128 Ariz. at 172-73,
624 P.2d at 850-51. Thus, Defendant did not establish the A.R.S. §
13-703(G)(1) mitigating factor. We must now determine whether there is
other mitigating evidence to weigh, even though it may not constitute an
enumerated statutory mitigating factor. See State v. McMurtrey, 136 Ariz.
93, 101-02, 664 P.2d 637, 645-46, cert. denied, 464 U.S. 858, 104 S.Ct. 180,
78 L.Ed.2d 161 (1983).
 As noted, there was no real evidence that Defendant was intoxicated
at the time of the offense. The evidence addressing historical familial
abuse was marginal and equivocal as to its causal connection with the
murder. Defendant's mother did not indicate that Defendant was abused or
neglected when he was growing up, and Defendant made no showing that any
difficult family history had anything to do with the murder, see Wallace,
160 Ariz. at 427, 773 P.2d at 986. Although Defendant's support and love
for and by family and friends might have some mitigating force, it does not
require a finding of mitigation sufficient to call for leniency. See State
v. Carriger, 143 Ariz. 142, 162, 692 P.2d 991, 1011 (1984), cert. denied,
471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985). In sum, our
independent review of the record shows no significant mitigating evidence.
Cf. State v. Herrera, Jr. I, 176 Ariz. 21, 35, 859 P.2d 131, 145 (1993);
Cook, 170 Ariz. at 64, 821 P.2d at 755. [FN42]
FN42. Defendant argues that we should conduct an independent proportionality
review of his death sentence. A majority of the court rejected this
procedural mechanism to review the propriety of the death penalty. Salazar,
173 Ariz. at 416-17, 844 P.2d at 583-84.
P. Should this court reweigh or remand for resentencing?
Having independently determined that one of the three aggravating
circumstances found by the trial court does not exist, and that the trial
court correctly characterized the lack of mitigating evidence, we must
decide whether this court should reweigh to either affirm or reduce the
death sentence or whether the case should be remanded to the trial court for
resentencing. Our obligation is to independently decide whether the death
sentence is appropriate. See Lopez, 174 Ariz. at 153, 847 P.2d at 1090;
Watson, 129 Ariz. at 62-63, 628 P.2d at 945-46. We do so to ensure that the
death penalty will not be imposed arbitrarily or on an aberrant basis and is
reserved for truly exceptional cases, setting the defendant apart from
others guilty of first degree murder and making death the appropriate
sanction. See Creech, 507 U.S. at ----, 113 S.Ct. at 1542; Stephens, 462
U.S. at 877, 103 S.Ct. at 2742; State v. Richmond, 114 Ariz. 186, 195-96,
560 P.2d 41, 50-51 (1976).
In some cases, and this is one, we have found that the trial court erred in
its conclusions regarding aggravating circumstances. See, e.g., Hinchey,
165 Ariz. at 440, 799 P.2d at 360; State v. Lopez, 163 Ariz. 108, 116, 786
P.2d 959, 967 (1990); State v. Wallace, 151 Ariz. 362, 369, 728 P.2d 232,
239 (1986), cert. denied, 483 U.S. 1011, 107 S.Ct. 3243, 97 L.Ed.2d 748
(1987). In other cases, we have found that the trial court incorrectly
evaluated or failed to recognize important mitigating evidence. See, **1210
*607 e.g., State v. Marlow, 163 Ariz. 65, 71-72, 786 P.2d 395, 401-02
(1989); State v. Rockwell, 161 Ariz. 5, 15-16, 775 P.2d 1069, 1079-80
(1989); State v. Stevens, 158 Ariz. 595, 599, 764 P.2d 724, 728 (1988). In
such cases, our response has been more consistent in theory than in
practice. See Karen L. Hinse, Note, Appellate Review of Death Sentences:
An Analysis of the Impact of Clemons v. Mississippi in Arizona, 34
Ariz.L.Rev. 141, 157 (1992) ("Hinse, 34 Ariz.L.Rev.").
 In Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d
725 (1990), the United States Supreme Court held that the Eighth and
Fourteenth Amendments of the United States Constitution do not prevent a
state supreme court, engaged in appellate review of a death sentence, from
reweighing the evidence and affirming even though the court finds that the
trial judge erred in the sentencing process. Clemons, 494 U.S. at 748-49,
110 S.Ct. at 1448-49. Indeed, the United States Constitution allows state
courts to weigh the aggravating and mitigating evidence at any stage of the
proceeding. See Richmond v. Lewis, 506 U.S. 40, 113 S.Ct. 528, 121 L.Ed.2d
411 (1992). Although Clemons and Richmond state that the United States
Constitution allows us to reweigh at the appellate level, they do not compel
us to do so. See Clemons, 494 U.S. at 754, 110 S.Ct. at 1451.
Both before and after Clemons, some states adopted a procedure of appellate
reweighing for altered aggravation or mitigation findings. Compare Sellers
v. Oklahoma, 809 P.2d 676, 691 (Okla.Crim.Ct.App.) (post-Clemons reweighing
on appeal), cert. denied, 502 U.S. 912, 112 S.Ct. 310, 116 L.Ed.2d 252
(1991) with Stouffer v. State, 742 P.2d 562, 564 (Okla.Crim.Ct.App.1987)
(pre-Clemons reweighing on appeal), cert. denied, 484 U.S. 1036, 108 S.Ct.
763, 98 L.Ed.2d 779 (1988); State v. Otey, 236 Neb. 915, 464 N.W.2d 352,
361 (post-Clemons reweighing on appeal in post- conviction relief case),
cert. denied, 501 U.S. 1201, 111 S.Ct. 2279, 115 L.Ed.2d 965 (1991) with
State v. Peery, 199 Neb. 656, 261 N.W.2d 95, 102 (1977) (pre-Clemons
reweighing on appeal), cert. denied, 439 U.S. 882, 99 S.Ct. 220, 58 L.Ed.2d
194 (1978). In Arizona, however, even after Clemons, we have continued to
focus on whether the record compels a particular finding in light of the
correct assessment of mitigating and aggravating factors. Compare Medrano,
173 Ariz. at 398, 844 P.2d at 565 ("Because one of the two statutory
aggravating circumstances found by the trial court must be set aside, and we
can only speculate whether the court would have found mitigation sufficient
to overcome the single remaining aggravating circumstance, we remand for
another hearing and resentencing.") with Robinson, 165 Ariz. at 60, 796 P.2d
at 862 ("[T]he elimination of one aggravating factor does not mandate a
remand to the trial court for resentencing when the record compels a finding
on the issue as a matter of law.").
The State has urged this court to eliminate remands for resentencing and
reweigh all cases as part of the review process. From an efficiency
standpoint, this would be useful by saving time and expediting the process.
Of more weight, perhaps, is the argument that remand for resentencing
exposes survivors and members of the victim's family to additional emotional
trauma. The State has argued that, if we find the trial court erred in
sentencing, it would be better in some cases to reduce the sentence to life
rather than remand for a new sentencing hearing. This may well be so, and
we urge the State to be candid with this court when such issues arise in the
 Matters as important as life or death, however, cannot be decided by
using efficiency and convenience as the best and only tests. Painstaking
care and pursuit of accuracy and justice are much more desirable.
Notwithstanding the trauma to surviving family members, there are cases in
which remand is unavoidable. When additional evidence is available or
required, that evidence must be presented to the trial court. This court
has neither facilities for, nor any custom of, taking evidence, and we
cannot decide questions of fact affecting the imposition of sentence by
means of **1211 *608 evidentiaryaffidavits. Cf. State v. Rumsey, 136 Ariz.
166, 168-75, 665 P.2d 48, 50-57 (1983) (discussing similarity between
capital sentencing hearing and trial and finding that double jeopardy clause
applies to sentencing), aff'd,Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct.
2305, 81 L.Ed.2d 164 (1984). In any capital case where additional evidence
is to be received, remand is required. "[W]e perform as an appellate court,
not as a trial court,"Rumsey, 136 Ariz. at 173, 665 P.2d at 55, and we have
repeatedly rejected the State's arguments to the contrary, see, e.g., Fierro,
166 Ariz. at 555, 804 P.2d at 88; Hinchey, 165 Ariz. at 440, 799 P.2d at
360; Gillies, 135 Ariz. at 516, 662 P.2d at 1023.
 Some cases will not require the submission of additional evidence but
only the reweighing and balancing of the evidence. Many of these cases will
involve situations in which the trial judge erred with respect to
aggravating or mitigating circumstances and in which there is mitigating
evidence of some weight. In these cases, too, remand for resentencing is
the better rule. As the United States Supreme Court noted, we have an
appellate task in reviewing death sentences and we have placed the
sentencing authority in all criminal cases, and especially capital cases,
with the trial judge. Rumsey, 467 U.S. at 209-10, 104 S.Ct. at 2309. "Law
and policy would indicate that the trial judge should again make the
[sentencing] determination." Gillies, 135 Ariz. at 516, 662 P.2d at 1023.
There are important reasons for this procedural rule.
First, this court's jurisdiction is appellate. Rumsey, 136 Ariz. at 173,
665 P.2d at 55. We have very limited original jurisdiction. See Ariz.
Const. art. VI, § 5, cls. 1-4. In capital cases on direct appeal, we review
for error and to determine whether the penalty is appropriate. Even in
those cases in which this court is the ultimate finder of fact, we proceed
through a master, committee, or commission. See La Paz County v. Yuma
County, 153 Ariz. 162, 163-64, 735 P.2d 772, 773-74 (1987); Ariz.R.Civ.P.
53; Ariz.R.Sup.Ct. 47, 48; Ariz.R.P.Comm.Jud.Conduct 11, 12.
On appeal, in many cases it is simply impossible to determine how the trial
judge--who heard the evidence and saw the witnesses--evaluated and weighed
that evidence and testimony. Without these imperative determinations, the
aggravating and mitigating factors cannot be balanced. See, e.g., Lopez,
174 Ariz. at 155-56, 847 P.2d at 1092-93 (Feldman, C.J., specially
concurring). This is especially true because the trial judge is required by
statute to consider at sentencing all evidence admitted at trial. A.R.S. §
13-703(C). Furthermore, the process of weighing is not scientific but,
rather, inherently subjective. There is no mathematical formula to apply
and none is required. Cf. Creech, 507 U.S. at ----, 113 S.Ct. at 1544. The
weighing process conducted in sentencing contains no linear equation
allowing us to determine, with much certainty, the effect an error may have
had on the outcome.
The sentencing statute provides that, following a first degree murder
conviction, "the judge who presided at the trial or before whom the guilty
plea was entered ... shall conduct [the] sentencing hearing." A.R.S. § 13-
703(B) (emphasis added). The only exception to this mandate is when the
trial judge dies, resigns, or is incapacitated or disqualified. Id. This
directive certainly reflects a legislative desire that, when possible, the
same judge who personally saw and heard all of the evidence must evaluate
and weigh that evidence for sentencing.
Even if this court could somehow recreate the many valuable intangibles
accompanying live testimony, the practicalities of our docket do not allow
us to do so. Although capital cases have a priority, the sheer volume of
cases we must process each week, month, and year curtails our review
process. The volume of other judicial work, as well as the voluminous
nature of the record in capital cases (in this case more than 120 volumes of
testimony and numerous exhibits and filings easily exceeding 15,000 pages)
simply prevents each Justice of this court from making a personal,
intensive, complete, and time- consuming study of the entire record of each
This is not to imply that the record goes unreviewed. The court and its
staff review **1212 *609 and read every word of the record in each capital
case. The evaluation of the facts of a case, however, is in part based on
staff review of the record. Thus, in a practical sense, the trial judge is
by far the best person to bear the responsibility for sentence imposition.
Other than the defendant and the attorneys, the trial judge--the one
individual who received every single exhibit and heard every word uttered in
court--is by far a better tool of justice to determine the appropriate
In addition, part of the rationale on which Clemons relied was the fact
that "reviewing courts" usually conduct proportionality reviews and are
therefore capable of providing "individualized and reliable sentences."
Clemons, 494 U.S. at 748-50, 110 S.Ct. at 1449; see also Hinse, 34
Ariz.L.Rev. at 152. This court, however, has concluded that proportionality
reviews no longer should be a part of appellate review in capital cases.
See Salazar, 173 Ariz. at 416-17, 844 P.2d at 583-84.
Finally, as is often said, the death sentence is different from any other
criminal penalty. Solem v. Helm, 463 U.S. 277, 294, 103 S.Ct. 3001, 3012,
77 L.Ed.2d 637 (1983). No system based on human judgment is infallible.
Thus, with the death penalty, we have taken, and should continue to take,
the extra step--indeed walk the extra mile--to ensure fairness and accuracy
in criminal cases. In light of the trial judge's unique familiarity with
the facts of the case, remand is an extra step that should be taken in all
but the rarest cases.
In sum, we conclude that when new evidence must be received or reweighing
and balancing of aggravating and mitigating factors and evidence are
required, the best approach is our traditional method. The trial judge is
in the best position to evaluate credibility and accuracy, as well as draw
inferences, weigh, and balance. This, after all, is the careful method that
we follow in civil appeals and, we believe, is even more appropriate in
capital cases. Therefore, in those cases in which the trial judge has erred
in the sentencing process and there is mitigating evidence of more than de
minimis weight, we will remand unless the State concedes that sentence
reduction is preferable to remand. With these principles in mind, we turn
to the facts of the present case.
 The trial judge found three aggravating circumstances. We conclude
that one of those was improperly found. Two aggravating circumstances,
however, were correctly found. Furthermore, the trial judge properly found
nothing of value by way of mitigation. Although Defendant's two previous
convictions do not qualify as an aggravating circumstance, they certainly do
not constitute mitigating evidence. From our review of the record, nothing
submitted to the trial court qualifies as more than de minimis evidence of
mitigation. We do not believe that Defendant's habitual drug use is of any
value as mitigation in this case, given the fact that there was no evidence it
significantly impaired his capacity to control his conduct on the day in
question. There is simply nothing to weigh or balance in this case. Thus, in
light of the unusual facts of this case, we are able to affirm the imposition
of the death sentence even though we have found that one of the three
aggravating circumstances was inapplicable.
Q. Other issues
Defendant raises a number of other issues, all of which we have considered.
The analysis applicable to these issues does not merit express discussion in
this long opinion. Thus, we reject these claims without express discussion.
See State v. Gillies, 142 Ariz. 564, 573, 691 P.2d 655, 664 (1984), cert.
denied, 470 U.S. 1059, 105 S.Ct. 1775, 84 L.Ed.2d 834 (1985).
We have examined the record for fundamental error pursuant to A.R.S. § 13-
4035 and have found none. Accordingly, we affirm Defendant's convictions and
MOELLER, Vice C.J., and CORCORAN, ZLAKET and MARTONE, JJ., concur.
END OF DOCUMENT