NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

PAMELA ANNE PHILLIPS, Appellant.

No. 1 CA-CR 17-0285

Appeal from the Superior Court in Pima County

No. CR20084012

The Honorable Richard S. Fields, Judge (Retired)

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson

By Jonathan Bass

Counsel for Appellee

Bob Kerry Law, Tucson

By Robert A. Kerry

Counsel for Appellant

FILED 7-10-2018
STATE v. PHILLIPS

Decision of the Court

2

MEMORANDUM DECISION

Chief Judge Samuel A. Thumma delivered the decision of the Court, in 

which Presiding Judge Jon W. Thompson and Judge Peter B. Swann joined.

T H U M M A, Chief Judge:

¶1 Pamela Anne Phillips appeals her convictions for first degree 

murder and conspiracy to commit first degree murder and resulting 

sentences. Because she has shown no reversible error, her convictions and 

sentences are affirmed.

FACTS1 AND PROCEDURAL HISTORY

¶2 On November 1, 1996, Gary Triano was killed by a bomb 

placed on the passenger seat of his car in the parking lot of a Tucson country 

club. Although Phillips, Triano’s former wife, was a person of interest, the 

crime remained unsolved for nearly a decade.

¶3 Phillips and Triano divorced in late 1993 and continued to 

dispute custody, visitation and child support. After the divorce, Phillips 

remained the owner and beneficiary of a $2 million insurance policy on 

Triano’s life. Phillips collected the $2 million proceeds on the policy three 

months after Triano was killed.

¶4 In 1994, Phillips moved to Aspen, Colorado. There, Phillips 

began an intimate relationship with Ronald Young, a neighbor. Young also 

acted as Phillips’ business consultant and helped her develop a website.

¶5 In April 1996, two businessmen reported to the police that 

Young had defrauded them. Phillips’ attorney also reported Young to the 

police for fraud. A few weeks later, however, Phillips indicated she no 

longer wanted to participate in the investigation. An Aspen police detective 

 

1 This court views the facts in the light most favorable to sustaining the 

verdicts and resolves all reasonable inferences against the defendant. State 

v. Harm, 236 Ariz. 402, 404 n.2 (App. 2015) (citing State v. Valencia, 186 Ariz. 

493, 495 (App. 1996)). 
STATE v. PHILLIPS

Decision of the Court

3

sought to interview Young, but could not locate him. The Aspen police 

eventually obtained an arrest warrant for Young on fraud charges.

¶6 Around this same time, Young left Aspen in a rented van. In 

July 1996, using an assumed name, Young stayed at a Tucson area hotel 

near Triano’s home for several weeks. During this time, Triano told his 

girlfriend that he believed he was being followed. When Young’s rented 

van was not timely returned, the rental company reported it stolen.

¶7 In October 1996, a few weeks before Triano’s murder, Young’s 

rented van was located in California, where police impounded it and 

contacted the Aspen police. An Aspen police detective traveled to 

California and participated in a search of the van. Inside the van, police 

found a shotgun and ammunition; an Arizona license plate; a Tucson map; 

paperwork with Young’s name on it; and lists in Young’s handwriting of 

Triano’s friends and family, the cars they drove and where they worked.

The van also contained paperwork pertaining to Phillips’ divorce from 

Triano, correspondence from Phillips, documents showing Young’s May 

1996 purchase of an airplane ticket for Phillips to fly from Aspen to Denver

and back and bills for a stay in a Tucson hotel near Triano’s home in July 

1996. After learning of Triano’s murder, the Aspen police contacted the 

Pima County Sheriff’s Office, which was the lead agency investigating the 

crime, and turned over items found in the van.

¶8 In 2005, Young was arrested in Florida on the Colorado fraud 

warrant after being featured on the television show America’s Most Wanted.

Searches of his residence, hotel room, storage unit, vehicle and a laptop 

computer seized during his arrest revealed Young regularly had been 

receiving money from Phillips after Triano’s death. Among other things, 

Young maintained amortization schedules showing payments made on a 

$400,000 debt. A forensic accountant examined that evidence, as well as 

Young’s and Phillips’ bank statements and shipping records. The 

accountant found the loan schedules were consistent with payments 

Phillips had been making to Young beginning in early 1997, when Phillips 

first received proceeds of the life insurance policy on Triano’s life, until late 

2004 or early 2005. The accountant also concluded the two had attempted 

to conceal the transactions.

¶9 Young had recorded telephone calls with Phillips in which 

they discussed the payments. These recordings show that they referred to 

their financial dealings, explicitly and implicitly, as an illegal arrangement, 

and Phillips expressed concern about being detected. During one call, 

Young reminded Phillips that he had “helped” her “with something that 
STATE v. PHILLIPS

Decision of the Court

4

was beyond what anybody else in the world would probably do” and that 

she was “living off the benefits of it.” During another call, when they 

disagreed about how much Phillips owed Young, he warned her that she 

would “be in prison for murder.”

¶10 In October 2008, Phillips and Young were charged with first

degree murder and conspiracy to commit first degree murder. Phillips was 

in Europe at the time and remained there until being extradited to the 

United States in 2010. Young was tried and convicted in 2010, while Phillips 

was still in Europe. In 2012, Young’s convictions and natural life sentence 

were affirmed on appeal, although the court remanded for resentencing on 

his conspiracy to commit first degree murder conviction. See State v. Young, 

2012 WL 642852 (Ariz. App. Feb. 29, 2012) (mem. dec.)

¶11 Phillips was found incompetent but then restored to 

competency. After a jury trial in 2014, Phillips was convicted on both 

charges and sentenced to concurrent life prison terms, with the possibility 

of release after service of 25 calendar years for the conspiracy conviction.

This court has jurisdiction over Phillips’ timely appeal pursuant to Article 

6, Section 9, of the Arizona Constitution and Arizona Revised Statutes 

(A.R.S.) sections 12-120.21(A)(1), 13-4031 and 13-4033(A)(2018).

2

DISCUSSION

I. Phillips Was Not Improperly Denied Contact With Her Attorneys. 

¶12 After Phillips’ arraignment, the superior court granted a 

motion by her counsel for a competency evaluation. See Ariz. R. Crim. P. 11.

In December 2011, after considering expert reports, the court found Phillips 

incompetent but restorable and ordered restoration services. Phillips 

argues she is entitled to automatic reversal of her convictions and sentences 

for structural error because the court limited contact between her and her 

counsel for a time while she was in restoration. The order limiting contact 

was entered after the court received a status report from the treating 

psychologist criticizing defense counsel for interfering with restoration 

services. This court reviews de novo Phillips’ claim that she was denied her 

constitutional right to counsel. State v. Rasul, 216 Ariz. 491, 493 ¶ 4 (App. 

2007).

¶13 In February 2012, finding that defense counsel was engaging 

in “blatant and intentional interference with the effort to restore an 

 

2 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.
STATE v. PHILLIPS

Decision of the Court

5

incompetent defendant, as well as a direct attack on the entire restoration 

program,” the superior court restricted defense counsel’s visitation with 

Phillips while in restoration to one hour in-person contact every 30 days 

and one five-minute phone call per week. The court also prohibited counsel 

from responding to Phillips’ letters during this time. These restrictions were 

in place for 87 days, from February 9, 2012 to May 7, 2012. The restrictions 

were lifted after the attorney whose conduct had created the problem was 

removed from the defense team for reasons not relevant here. Phillips 

continued in restoration until late November 2012, when the court found 

she was restored to competency. Her trial started in mid-February 2014.

¶14 A criminal defendant has the right to the assistance of counsel 

under both the United States and Arizona Constitutions. U.S. Const. 

amend. VI; Ariz. Const. art. II, § 24; State v. Ruiz, 236 Ariz. 317, 325 ¶ 30 

(App. 2014). This right extends to “all critical stages of the criminal 

process.” Iowa v. Tovar, 541 U.S. 77, 80–81 (2004); State v. Moody, 208 Ariz. 

424, 445 ¶ 65 (2004). A critical stage is one where “substantial rights of . . . 

[the] accused may be affected.” Mempa v. Rhay, 389 U.S. 128, 134 (1967); see 

also Bell v. Cone, 535 U.S. 685, 696 (2002) (defining a critical stage as “a step 

of a criminal proceeding, such as arraignment, that h[o]ld[s] significant 

consequences for the accused”). Not every restriction on counsel’s time or 

opportunity to consult with a client, however, violates a defendant’s Sixth 

Amendment right to counsel. Morris v. Slappy, 461 U.S. 1, 11 (1983).

Furthermore, in most cases involving a claim of interference with the right 

to counsel, the defendant bears the burden of showing that the challenged 

conduct resulted in prejudice to be entitled to relief. United States v. Cronic, 

466 U.S. 648, 658 (1984).

¶15 Phillips acknowledges that any prejudice from the limitation 

on counsel’s contact with her during restoration services is speculative.

Relying on Geders v. United States, 425 U.S. 80 (1976), however, Phillips 

argues limiting counsel’s contact was structural error that requires reversal 

without a showing of prejudice. Structural errors are those that “affect the 

entire conduct of the trial from beginning to end, and thus taint the 

framework within which the trial proceeds.” State v. Henderson, 210 Ariz. 

561, 565 ¶ 12 (2005) (citations and internal quotations marks omitted). When 

structural error is shown, a guilty verdict is subject to automatic reversal 

without any showing of prejudice. State v. Ring, 204 Ariz. 534, 552 ¶ 45 

(2003). This is because structural errors “deprive defendants of ‘basic 

protections’ without which ‘a criminal trial cannot reliably serve its

function as a vehicle for determination of guilt or innocence . . . and no 

criminal punishment may be regarded as fundamentally fair.’” Id. (quoting

Neder v. United States, 527 U.S. 1, 8-9 (1999). There are relatively few 
STATE v. PHILLIPS

Decision of the Court

6

instances that qualify as structural error. Ring, 204 Ariz. at 552 ¶ 46. They 

include complete denial of criminal defense counsel and denial of access to 

criminal defense counsel during an overnight trial recess. Id.

¶16 Recognizing that the order did not result in a complete denial 

of contact with her counsel, Phillips seeks to equate the order limiting 

contact with counsel for a time when she was in restoration to the denial of 

access to defense counsel during a trial recess as in Geders. Geders, however, 

is distinguishable. The denial of contact with counsel in that case occurred 

during trial. Here, by contrast, the restriction on contact occurred during 

restoration nearly two years before trial. Unlike a defendant’s trial, 

restoration services do not deal with the merits of the criminal charge. State 

v. Superior Court (Gioranella), 113 Ariz. 432, 434 (1976). Thus, Phillips has not 

shown that participation in restoration should be viewed as a critical stage 

of the criminal proceedings under Geders. This is particularly true given that 

restoration services are provided when a defendant is legally incompetent, 

i.e., “unable to understand the nature and objective of the proceedings 

[against her] or to assist in [her] defense.” Ariz. R. Crim. P. 11.1(a)(2).

Accordingly, absent some impact of the challenged conduct on the 

reliability of the trial process, the Sixth Amendment guarantee is generally 

not implicated. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867-869 

(1982); United States v. Morrison, 449 U.S. 361, 364-365 (1981); Weatherford v. 

Bursey, 429 U.S. 545 (1977).

¶17 Moreover, unlike in Geders, there was no complete denial of 

counsel at a critical stage, only a limitation on the amount of contact counsel 

was permitted to have with Phillips during restoration. The court’s order 

permitted counsel to visit with Phillips, but limited contact consistent with 

the amount of visitation other defense counsel often had with clients in 

restoration to prevent interference with treatment. Given that Phillips 

concedes she is unable to show prejudice from the order limiting contact 

during restoration, that order does not provide any basis for reversal.

II. The Superior Court Properly Denied Phillips’ Motion To Dismiss

Or For A Continuance As A Sanction For Discovery Violations.

¶18 Multiple law enforcement agencies participated in the 

murder investigation, including the Tucson Police Department; the Arizona 

Department of Public Safety and various federal law enforcement agencies, 

all coordinated by the Pima County Sheriff’s Office. Initially, the State 

disclosed more than 300,000 pages (about 160 boxes) of documents to 

Phillips. Phillips sought and obtained, approximately a month before trial, 

about 2,000 pages of information (some of it apparently not previously 
STATE v. PHILLIPS

Decision of the Court

7

disclosed by the State) from federal agencies. See United States ex rel. Touhy 

v. Ragen, 340 U.S. 462 (1951). Claiming the State (not the federal agencies) 

should have disclosed these documents, Phillips moved to dismiss the 

charges as a discovery sanction under Ariz. R. Crim. P. 15, asserting a 

violation of her due process rights under Brady v. Maryland, 373 U.S. 83 

(1963) or, in the alternative, for a continuance.

¶19 The superior court denied the request for a continuance and 

deferred ruling on the motion to dismiss until after trial. At a post-trial 

hearing, Phillips argued the disclosure issue meant she was unable to fully 

investigate and present a third party-culpability defense (primarily, that 

Neil McNeice “had the motive, means, and opportunity to kill Triano”) and 

was unable to properly prepare witness Dr. Lawrence D’Antonio, 

McNeice’s personal physician, to testify at trial. After considering the 

arguments and the trial evidence, the court denied the motion to dismiss. 

Phillips argues the court erred in denying her motions, rulings this court 

reviews for an abuse of discretion. State v. Roque, 213 Ariz. 193, 205 ¶21 

(2006), overruled on other grounds by State v. Escalante–Orozco, 241 Ariz. 254 

¶¶ 13–14 (2017); State v. Medrano, 173 Ariz. 393, 399 (1992).

¶20 Phillips first argues the information she received from the 

federal agencies “was not outside of the state’s control.” But she does not 

factually support that argument. Nor does she show how, by receiving 

approximately one box of documents about a month before trial, the 

superior court was required to dismiss the charges against her or grant the 

requested continuance. Similarly, she has not shown dismissal or a 

continuance was mandated by her unsupported claim that, “[h]ad the 

federal reports been disclosed as required, Phillips would have been able to 

do a more thorough and focused independent investigation.” 

¶21 Phillips concedes that some of the information obtained from 

the federal agencies was (or contained) information she had independently 

discovered years earlier. That the information purportedly “connected” 

various individuals to other individuals and entities “that possibly also had 

motives to kill Triano,” and cars at the country club when Triano was killed,

does not mean the superior court erred in denying her requested relief. 

Similarly, Phillips has not shown that earlier disclosure of this information 

would have meant that Dr. D’Antonio would have fared better during 

cross-examination. 

¶22 Although claiming the source of the disclosed information 

should have been the State (not federal agencies), the fact remains that 

Phillips received the information before trial. Indeed, had she not received 
STATE v. PHILLIPS

Decision of the Court

8

such disclosure from the federal agencies, the factual predicate for her 

argument on appeal would appear to be lacking. Particularly given that she 

used the disclosed information at trial, Phillips has not shown how the 

source of the disclosed information would require dismissal of the charges 

with prejudice. Accord State v. Jessen, 130 Ariz. 1, 4 (1981) (“When previously

undisclosed exculpatory information is revealed at the trial and is

presented to the jury, there is no Brady violation”).3

¶23 Phillips also has not shown how Young seeking a rehearing 

in his pursuing post-conviction relief raises issues relevant in her direct 

appeal in this case, or that Young’s filings mean Phillips properly raised the 

issue with the superior court. Similarly, that four pages of Tim Alger’s 

phone bill that Phillips asserts Alger’s “ex-wife had faxed . . . to the secret 

service detectives in 1997” were missing would not require dismissal of the 

charges with prejudice or a continuance. Although Phillips speculates that 

the timing of the disclosure “resulted in an unprepared and ineffective 

presentation of Phillips’ third-party culpability defense,” generically 

referencing “testimony” of five trial witnesses (with no further specificity) 

does not prove the point. On this record, Phillips has shown no abuse of 

discretion (or fundamental error resulting in prejudice, to the extent a 

specific issue was not timely raised) in the denial of her motion to dismiss 

with prejudice or, alternatively, for a continuance as a discovery sanction. 

Roque, 213 Ariz. at 205 ¶21; Henderson, 210 Ariz. at 567 ¶ 19; Medrano, 173 

Ariz. at 399; State v. James, 231 Ariz. 490, 493 ¶ 11 (App. 2013). 

III. Phillips Has Not Shown The Superior Court’s Evidentiary Rulings

Denied Her The Right To Properly Present A Defense.

¶24 Phillips argues the superior court erroneously limited her 

presentation of (1) “third-party culpability evidence involving . . . McNeice”

and (2) evidence of “her legitimate financial relationship with Young.” In

exercising the right to a complete defense, “the accused, as is required of 

 

3 It does not appear that, in pressing this argument, Phillips claims evidence 

was never disclosed. To the extent she intends to do so, she has failed to 

show with specificity, or support, what such evidence would have shown 

and cannot, accordingly, show a Brady violation. See, e.g., Strickler v. Greene, 

527 U.S. 263, 281-82 (noting a Brady violation requires showing “[t]he 

evidence at issue must be favorable to the accused, either because it is 

exculpatory, or because it is impeaching”); State v. Montaño, 204 Ariz. 413,

424 ¶ 52 (2003) (“’The test for a Brady violation is whether the undisclosed 

material would have created a reasonable doubt had it been presented to 

the jury.’”) (citation omitted).
STATE v. PHILLIPS

Decision of the Court

9

the State, must comply with established rules of procedure and evidence 

designed to assure both fairness and reliability in the ascertainment of guilt 

and innocence.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973). “The 

admission of third-party culpability evidence is governed by the standards 

of Rules 401 through 403 of the Arizona Rules of Evidence, not by Rule 

404(b).” State v. Machado, 226 Ariz. 281, 284 ¶ 16 (2011). The admission or 

exclusion of evidence is reviewed for an abuse of discretion. See State v. 

Escalante–Orozco, 241 Ariz. 254, 274 ¶ 51 (2017).

¶25 As to the third-party culpability evidence, Phillips argues the 

superior court was required to admit evidence of purported affiliations or 

relationships McNeice had with others, including a bodyguard who 

previously worked for an individual who was allegedly “a member of the 

Armenian crime syndicate in” Los Angeles, and who knew others who 

were capable of building a bomb, and still others who could have 

“undertake[n] the bombing.” Phillips also asserts that the court erred in 

precluding “evidence that bore on the credibility of Dr. D’Antonio, who 

was the chief witness against McNeice,” “evidence of McNeice’s mob ties 

in Los Angeles,” evidence that McNeice “was a suspect in another bombing, 

that he kept a ‘hit list,’ and that other people who owed him money were 

on the list.”

¶26 To the extent Phillips challenges the admission of evidence 

regarding McNeice’s affiliations, she has failed to show reversible or 

fundamental error resulting in prejudice. To be admissible, third-party 

culpability evidence “must have an effect on the defendant’s culpability” 

for the charged crimes, tending “’to create a reasonable doubt as to the 

defendant’s guilt.’” Escalante-Orozco, 241 Ariz. at 276 ¶69 (citation omitted). 

The superior court properly could conclude that the evidence of McNeice’s 

purported affiliations “had scant probative weight and was substantially 

outweighed by the danger of confusing or misleading the jury,” and that 

such affiliations or relationships “did not tend to create a reasonable doubt 

about [Phillips’] guilt. The jury would have had to speculate to find 

otherwise.” Id. at 276-77 ¶ 69 (citations omitted). Similarly, Phillips has not 

shown error in the exclusion as hearsay evidence about McNeice’s 

purported “hit list.” See Ariz. R. Evid. 801(c), 802.

¶27 To the extent Phillips argues the superior court erroneously 

“precluded evidence that bore on the credibility of” Dr. D’Antonio, she has 

failed to show reversible or fundamental error resulting in prejudice. See, 

e.g., Ariz. R. Evid. 103(e), 401, 403, 611, 801, 802. The court was not required 

to admit hearsay or cumulative, irrelevant or unfairly prejudicial evidence 

in response to Phillips’ claim that such evidence bore on witness credibility.
STATE v. PHILLIPS

Decision of the Court

10

See, e.g., Ariz. R. Evid. 403, 802; United States v. Scheffer, 523 U.S. 303, 308 

(1998) (concluding a defendant’s right to present evidence is subject to 

compliance with reasonable evidentiary rules). Nor has she shown that 

precluded redirect testimony had to be admitted under the prior consistent 

statement exception to the rule against hearsay. See Ariz. R. Evid. 

801(d)(1)(B). Finally, to the extent she argues the court erroneously 

precluded evidence purportedly showing her financial involvement with 

Young “was legitimate,” Phillips has not shown the court reversibly or 

fundamentally erred in precluding some evidence as inadmissible hearsay 

and precluding other evidence as irrelevant. This includes what Phillips 

characterizes as a desire to have communications between them “analyzed 

to determine if they were about” a specified piece of property or a sustained 

objection, on redirect of one of her witnesses, about a check attached to a 

1994 letter that was used to refresh the witness’ recollection. Even if timely 

raised before the superior court and properly argued on appeal, Phillips has 

not shown the court erroneously excluded such evidence or that it 

improperly denied her the right to present a defense.

IV. The Superior Court Did Not Improperly Limit Phillips’

Presentation Of Other Purported Third-Party Culpability 

Evidence. 

¶28 The superior court allowed Phillips to present significant 

evidence to support her third-party culpability defense that McNeice killed 

Triano. On appeal, Phillips argues she “sought to introduce evidence that 

others also had the motive and means to murder Triano,” and that the court 

“erroneously precluded [her] from introducing any third-party culpability 

evidence that did not pertain to McNeice.” Phillips argues broadly that 

“[t]he pipe bomb execution created the real possibility that the perpetrator 

was anyone with the motive, means and opportunity to commit the crime.” 

She then asserts that “Triano had ties to criminal enterprises,” which she 

claims “creates a reasonable doubt about” her guilt. In pressing these 

arguments, Phillips paints with too broad a brush. 

¶29 Asserting a third-party culpability defense does not, as 

Phillips suggests, require a court to admit all evidence regarding every 

individual who may have had a motive, means or opportunity to commit a 

crime. “[V]ague grounds of suspicion” of another do not constitute 

admissible third-party culpability evidence. State v. Bigger, 227 Ariz. 196, 

209 ¶ 43 (App. 2011) (citation omitted). As pointedly noted by the Arizona 

Supreme Court more than once, a “’defendant may not, in the guise of a 

third-party culpability defense, simply throw strands of speculation on the 

wall and see if any of them stick.’” State v. Goudeau, 239 Ariz. 421, 460 ¶ 165 
STATE v. PHILLIPS

Decision of the Court

11

(2016) (quoting Machado, 226 Ariz. at 284 ¶ 16 n.2). Nor does Phillips cite 

any authority supporting her assertion that admitting at trial all evidence 

for every individual who may have had a motive, means or opportunity to 

commit a crime would not “have caused any confusion of the issues.” The 

record on appeal does not support Phillips’ further third-party culpability 

evidence arguments.

¶30 At trial, Phillips’ counsel was allowed to cross-examine 

Detective St. John, the lead detective from 1996 until 1998, to show that 

there were several potential suspects identified at the beginning of the 

investigation, and “there were a lot of people with a lot of motives to kill”

Triano. When Phillips’ attorney asked about a specific individual, outside 

of the presence of the jury, the State noted that “third party culpability case 

law indicates that . . . speculative potential people who might be responsible 

is not admissible,” adding that evidence of “potential suspects [other than 

McNeice] at that time is irrelevant and not probative, and it has 403 

problems in terms of confusion of the jury.” During a lengthy discussion, 

after listing various individuals or entities purportedly having a motive to 

kill Triano, Phillips’ attorney avowed “I’m not going to get into hearsay,”

adding “I’m not saying that they did it. I’m just saying that they were 

investigated because they had motive.” Given this avowal, the court 

allowed Phillips’ attorney to ask Detective St. John whether Phillips “was 

the only suspect investigated,” and whether he investigated various other 

individuals or entities and why. In the presence of the jury, Phillips’ counsel 

then asked those questions and the witness answered them. In doing so, the 

superior court allowed the type of questioning Phillips requested at trial.

¶31 To the extent Phillips’ appellate argument differs from what 

she requested at trial, review is limited to fundamental error. Henderson, 210 

Ariz. 561, 567 ¶ 19. Fundamental error is “error going to the foundation of 

the case, error that takes from the defendant a right essential to [her] 

defense, and error of such magnitude that the defendant could not possibly 

have received a fair trial.” Id. “Accordingly, [Phillips] bears the burden to 

establish that (1) error exists, (2) the error is fundamental, and (3) the error 

caused [her] prejudice.” James, 231 Ariz. at 493 ¶ 11 (citations and internal 

quotations omitted). Phillips has shown no fundamental error on the point, 

let alone fundamental error resulting in prejudice.

¶32 To the extent Phillips timely raised the issue at trial, she has 

not shown that the superior court, in the guise of third-party culpability 

evidence, was required to admit evidence that Triano “was involved with 

several Indian casino ventures” and “owed money to Las Vegas casinos” 

and filed bankruptcy when “he owed $26.8 million to creditors.” Nor has 
STATE v. PHILLIPS

Decision of the Court

12

she shown that the court was required to admit evidence of any planned 

civil action between Triano and Gary Fears involving a casino in China that 

failed to open. Similarly, she has not shown that evidence of Triano’s

helping to gather incriminating evidence against another arising out of a 

bankruptcy proceeding, or that an entity lost money in a deal with Triano, 

had to be admitted as third-party culpability evidence. Relatedly, Phillips 

has not shown what evidence she sought to offer of a purported death 

threat to Triano by “an entity with reputed connections to a Mexican cartel” 

that purportedly “lost $2 million in a deal with Triano.” Finally, her 

argument on appeal that “[t]he pipe bomb was a classic organized crime 

technique to kill” does not, somehow, demonstrate error by the superior 

court in determining the admissibility of third-party culpability evidence

based on the record and arguments presented at trial. 

V. Phillips Has Not Shown A Violation Of Her Due Process And Fair 

Trial Rights As A Result Of Prosecutorial Misconduct. 

¶33 Phillips argues prosecutorial misconduct based on (1) 

intentionally withholding evidence; (2) witness intimidation; and (3) a 

prosecutor starting an outside consulting business. Phillips argues there 

was a continuing pattern of misconduct that prejudiced her defense and 

that double jeopardy would bar a retrial. Both parties cite State v. Hughes as 

providing the applicable standard:

To prevail on a claim of prosecutorial 

misconduct, a defendant must demonstrate that 

the prosecutor’s misconduct “so infected the 

trial with unfairness as to make the resulting 

conviction a denial of due process.” “Reversal 

on the basis of prosecutorial misconduct 

requires that the conduct be ‘so pronounced and 

persistent that it permeates the entire 

atmosphere of the trial.’” To determine whether 

prosecutorial misconduct permeates the entire 

atmosphere of the trial, the court necessarily has 

to recognize the cumulative effect of the 

misconduct.

193 Ariz. 72, 79 ¶ 26 (1998) (citations omitted). A ruling on a motion to 

dismiss for prosecutorial misconduct is reviewed for an abuse of discretion. 

State v. Trani, 200 Ariz. 383 ¶5 (App. 2001); State v. Lee, 189 Ariz. 608, 616 

(1997).
STATE v. PHILLIPS

Decision of the Court

13

¶34 The purported withholding of evidence assertion appears to 

be based both on the timing and source of materials that were the subject of 

Phillips’ argument challenging the superior court’s denial of her motion to 

dismiss as a discovery sanction, see Section II, as well as other evidence. To 

the extent it is based on the materials that were the subject of her motion to 

dismiss, it fails for the grounds set forth above. To the extent it is based on 

other evidence, as the State suggests, the “gist” of the argument “is not so 

much that she was denied this material, but that it was disclosed by the 

prosecutors who tried the case, rather than by those who left the 

prosecutors’ office 3 years before trial began.” As noted by the United States 

Supreme Court, “the touchstone of due process analysis in cases of alleged 

prosecutorial misconduct is the fairness of the trial, not the culpability of 

the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). Accordingly, 

although Phillips raises concerns about disclosures made by prosecutors 

who left the prosecution team years before trial, she has not shown such 

conduct had any impact on the fairness of the trial or violated her due 

process rights.4

¶35 Phillips’ witness intimidation argument arises out of a claim 

that State investigators, contrary to a court order, told certain individuals 

that certain other individuals were connected to the bombing and were the 

source of related information. This, she argues, resulted in two witnesses 

recanting prior statements. Before trial, Phillips raised this issue with the 

superior court, which declined to hold the investigators in contempt, but 

allowed her counsel to use the pretrial interview, taken before any 

recantation, for one witness at trial. Although Phillips claims this was “an 

overt act of misconduct” because it was “a direct violation of a court order 

that was [put] in place to protect the identities of witnesses so that they 

would not be threatened or influenced before they testified,” the court that 

issued the order she claims was violated viewed it differently. That court 

declined to hold the investigators in contempt, instead issuing orders 

addressing the issue from an evidentiary perspective. Phillips has not 

shown how this conduct by investigators properly is attributable to the 

prosecutors; how it means the prosecutors actively discouraged witnesses 

from testifying or, given the remedial rulings, how it resulted in an unfair

trial. Smith, 455 U.S. at 219. Nor has she shown that the court abused its 

discretion in addressing the issue.

 

4 Phillips’ argument regarding the use of grand jury subpoenas by these 

same prosecutors who did not try the case is addressed, in substance, in 

Section VIII below, and she has not shown that any such misconduct had 

any impact in the fairness of the trial.
STATE v. PHILLIPS

Decision of the Court

14

¶36 The final basis for Phillips’ prosecutorial misconduct 

argument is that a prosecutor, while appearing as counsel on the case, 

started a consulting business, advertising involvement with the Triano 

homicide as bolstering his qualifications for solving older, unsolved crimes. 

Asserting this consultancy “was in direct conflict with a prosecutor’s duty 

to act as a minister of justice,” see Ariz. R. Sup. Ct. 42, ER 3.8 cmt. 1, Phillips 

claims that “[t]his intentional misconduct was so egregious that it raises 

concerns over the integrity and fundamental fairness of the trial itself.” 

Phillips, however, admits that this prosecutor was removed “from the case 

when defense counsel discovered the conflict” and acknowledges the 

superior court imposed no sanction because the individual “resigned from 

the county attorney’s office.” That resignation occurred approximately

three years before trial, and Phillips has not shown how any misconduct 

associated with this consultancy had any impact on the trial, let alone 

resulting in an unfair trial. Smith, 455 U.S. at 219. For these reasons, Phillips 

has not shown prosecutorial misconduct resulting in a denial of her due 

process and fair trial rights and has not shown the court abused its 

discretion in addressing the issue.

VI. The Superior Court Did Not Err In Denying Phillips’ Motion To 

Suppress Recordings Of Her Calls With Young.

¶37 Phillips argues the superior court erred in denying her motion 

to suppress recordings of her phone calls with Young, which Young

recorded and were seized in Florida after his arrest in 2005. At trial, the 

State introduced portions of the recordings where the two discussed 

payments Phillips was making to Young. Phillips argues the recordings 

should have been precluded under 18 U.S.C. §§ 2510, et seq., and Florida 

Statutes Annotated (F.S.A.) § 934.06. This court reviews the superior court’s 

ruling for an abuse of discretion, analyzing legal conclusions de novo.

Moody, 208 Ariz. at 445 ¶ 62.

¶38 As applicable here, federal law allows one participant to 

record a call even if the other does not consent. See 18 U.S.C. § 2511(2)(d). 

This statute, however, prohibits recording if it is “for the purpose of 

committing any criminal or tortious act in violation of the Constitution or 

laws of the United States or of any State.” Id. Phillips argues that 

suppression of recordings under federal statutory law is required where a 

defendant shows by a preponderance of the evidence that the recording 

was made for an unlawful purpose. See, e.g., United States v. McTiernan, 695 

F.3d 882, 888 (9th Cir. 2012) (citing cases); Wasserman v. Low, 143 Ariz. 4, 10 

(App. 1984) (citing cases). By denying her motion to suppress, the superior 
STATE v. PHILLIPS

Decision of the Court

15

court found that Phillips had not made that required showing, a conclusion 

Phillips has not shown was in error.

¶39 Although Phillips argued the recordings were “created by a 

‘confidence man’ for criminal and tortuous purposes (e.g., fraud, blackmail, 

and extortion),” she has not shown that the superior court was required to 

reach that conclusion. To the contrary, on the record presented, that court 

could have properly concluded that Young made the recordings “’out of a 

legitimate desire to protect himself and his own conversations from later 

distortion or other unlawful or injurious uses by the other party.’” 

Wasserman, 143 Ariz. at 10 (quoting Meredith v. Gavin, 446 F.2d 794, 798-99 

(8th Cir. 1971)). Accordingly, and applying the “case by case” analysis 

required for such analysis, Wasserman, 143 Ariz. at 10, Phillips has not 

shown that the court admitted the recordings contrary to federal statute.

¶40 Phillips argues, with significant force, that recordings were 

inconsistent with Florida law, where Young was located when he made the 

recordings. See F.S.A. § 934.03(2)(d) (allowing such recording, as applicable 

here, only “when all of the parties to the communication have given prior 

consent”). A related Florida statute provides that no recorded information 

“may be received in evidence in any trial, hearing, or other proceeding in 

or before any court, grand jury, department, officer, agency, regulatory 

body, legislative committee, or other authority of the state, or a political 

subdivision thereof, if the disclosure of that information would be in 

violation of this chapter.” F.S.A § 934.06. Accordingly, if this was an appeal 

from a trial in Florida state court, Phillips would have a strong argument 

that the recordings were inadmissible under this statute. This trial, 

however, did not occur in Florida state court.

¶41 From its text, it is uncertain whether the Florida statutory 

prohibition on admissibility where less than all parties consent to a 

recording was designed to apply to evidentiary decisions made by courts 

in other states. The text of the prohibition refers, in part, to “the state,”

suggesting it is limited to Florida. Although a phrase not used in the 

prohibition, the statute elsewhere defines “judge of competent jurisdiction” 

to mean judicial officers “of any court of record having felony jurisdiction 

of the State of Florida.” F.S.A § 934.02(8). Perhaps most significantly, 

although this prohibition has been in place since 1969, no case has found it 

applies anywhere other than Florida state court. Nor has Phillips shown 

how, by statute, Florida could direct that certain evidence was inadmissible 

in an Arizona court proceeding. Cf. State v. Willoughby, 181 Ariz. 530, 542

(1995) (in a criminal case, “[w]hen interpreting nonjurisdictional, 

substantive statutes . . . , we ordinarily assume the substantive reach of a 
STATE v. PHILLIPS

Decision of the Court

16

law is contained within the territorial borders of the enacting jurisdiction to 

avoid conflicts with other jurisdictions”). This is particularly true given that 

the governing rules of evidence are those in the forum state where the trial 

occurs. See Cordon v. Cotton Lane Holdings, Inc., 173 Ariz. 203, 206 (1992) 

(“Procedural matters are generally governed by the law of the forum 

state.”) (citing Restatement (Second) of Conflict of Laws § 122 (1971)); see 

also State v. Superior Court, 154 Ariz. 574, 576 (1987) (“[R]ules of evidence are 

procedural in nature.”).

¶42 The cases Phillips cites for arguing what state’s law should 

apply miss the mark. They involve one or more of the following (and, 

accordingly, are distinguishable): civil claims for money damages, state 

courts applying that same state’s law, personal jurisdiction issues and/or 

reject the type of relief Phillips seeks here.

5 None of the cases she cites show 

the superior court erred in admitting the recordings under Arizona

evidence law, notwithstanding the Florida statute, in this criminal case tried 

in Arizona state court. The fact that Young recording his calls with Phillips 

may have exposed him to criminal prosecution or civil liability under 

Florida law is not germane to whether the Arizona superior court in this 

case properly admitted portions of those recordings applying the Arizona 

Rules of Evidence.

¶43 The Supreme Courts of the United States and Arizona have 

declared that the issues involving the admissibility of evidence “’depend 

upon the law of the place where the suit is brought.’” Ross v. Ross, 96 Ariz. 

249, 251-52 (1964) (quoting Scudder v. United National Bank, 91 U.S. 406, 413 

(1875)). Phillips has not shown that the rule has changed or that a different 

rule applies to non-constitutional objections in criminal cases. Accordingly, 

Phillips has not shown that Florida law precluded the Arizona superior 

 

5 See Kadoranian by Peach v. Bellingham Police Dept., 829 P.2d 1061, 1062, 1068 

(Wash. 1992) (affirming summary judgment of dismissal in “a civil action 

seeking damages allegedly caused by constitutional and statutory 

violations of the right to privacy”); State v. Fleming, 755 P.2d 725, 727 (Or. 

Ct. App. 1988) (affirming murder and other convictions, noting “[t]he 

recording was made in Oregon lawfully, and Washington law simply does 

not apply.”); Stowe v. Devoy, 588 F.2d 336, 341 (2d Cir. 1978) (affirming 

denial of petition for writ of habeas corpus; finding 18 U.S.C. §§ 2515, et seq.

had no extraterritorial application in another country); France v. France, 90 

So.3d 860 (Fla. Dist. Ct. App. 2012) (reversing dismissal for lack of personal 

jurisdiction for claim by Florida resident that North Carolina resident 

violated Florida law).
STATE v. PHILLIPS

Decision of the Court

17

court from admitting the recordings. Nor has she shown that the recordings 

were not properly admitted under Arizona law. 

VII. The Trial Evidence Was Sufficient To Support The Verdicts. 

¶44 Phillips argues that insufficient evidence was presented to 

sustain her convictions generally, as opposed to any deficiency in a 

particular element of the charges. She asserts the evidence against her was 

speculative and the inferences to be drawn were ambiguous. In considering 

claims of insufficient evidence, this court’s review is limited to whether 

substantial evidence supports the verdicts. State v. Scott, 177 Ariz. 131, 138 

(1993); see also Ariz. R. Crim. P. 20(a). Substantial evidence is evidence, 

viewed in the light most favorable to sustaining the verdict, from which a 

reasonable person could find a defendant guilty beyond a reasonable 

doubt. State v. Roseberry, 210 Ariz. 360, 368-69 ¶ 45 (2005). If reasonable 

jurors could fairly disagree about whether evidence establishes a fact at 

issue, the evidence is substantial. State v. Rodriguez, 192 Ariz. 58, 60 ¶ 10 

(1998). This court reviews de novo claims of insufficient evidence. State v. 

West, 226 Ariz. 559, 562 ¶ 15 (2011).

¶45 Evidence of Phillips’ guilt was largely circumstantial. A

conviction, however, may be based solely on circumstantial evidence 

because “the probative value of direct and circumstantial evidence are 

intrinsically similar” and “the law makes no distinction” as to the weight 

assigned to each. State v. Harvill, 106 Ariz. 386, 391 (1970); see also State v. 

Anaya, 165 Ariz. 535, 543 (App. 1990) (“The substantial evidence required 

for conviction may be either circumstantial or direct, and the probative 

value of the evidence is not reduced simply because it is circumstantial.”).

Here, there was substantial evidence from which the jury could have found 

that Phillips conspired with Young to kill Triano and that Young undertook 

the job of carrying out the killing.

¶46 The jury heard evidence that, during their contested family 

court proceedings, Phillips spoke of hiring someone to kill Triano so she 

could collect on his $2 million life insurance policy. Besides saying she 

wanted Triano dead, Phillips also said it would be easy for someone to kill 

him, adding his habits were predictable and that he played golf every day.

Other trial evidence included the murder itself; Young’s travelling to 

Tucson in a van later found to contain a shotgun, a list of Triano’s 

acquaintances and family in his handwriting and paperwork from Phillips’ 

divorce; the fact that Young had no known connection to Triano before the 

murder; Phillips’ recovery of proceeds from a life insurance policy on 

Triano’s life and her sending money to Young and Young’s demand for 
STATE v. PHILLIPS

Decision of the Court

18

additional sums; their attempts to conceal and disguise payments and 

Phillips using false names in her dealings with Young. Further evidence 

included the relationship Phillips developed with Young in Aspen after the 

divorce, the disguised payments Phillips made to Young after the murder 

totaling twenty-percent of the $2 million life insurance proceeds she 

received following Triano’s death, and emails and recorded calls between 

Phillips and Young. Collectively, this evidence would permit a reasonable 

jury to conclude that Phillips conspired with Young to have Triano killed

and Young undertook the job of murdering him at her request. 

¶47 Phillips dismisses the evidence as speculative because there 

was no direct evidence that Young knew how to build a bomb or was the 

person who placed it in Triano’s car. She also argues that because there was 

no specific evidence that Young was in Tucson on the day of the bombing, 

the jury could only infer that he was somewhere else. The jury, however, 

was entitled to draw different inferences from the totality of the evidence, 

including inferences different than those suggested by Phillips. See State v. 

Arce, 107 Ariz. 156, 161 (1971) (“It [is] the function of the jury to decide what 

reasonable inferences could be drawn from the evidence.”). On this record, 

there was substantial evidence from which a reasonable jury could have 

found Phillips guilty beyond a reasonable doubt.

VIII. Phillips Has Not Shown The Superior Court Erred In Denying Her 

Motion To Suppress Evidence Obtained By Grand Jury 

Subpoenas.

¶48 Phillips argues the State obtained her banking records in 

Arizona, Colorado and elsewhere using invalid grand jury subpoena duces 

tecum, and the superior court erred in finding the subpoenas were not 

unlawful. The thrust of her argument is that the grand jury subpoenas were 

required to comply with A.R.S. § 13-4071, and because they did not, the 

superior court erred in denying her motion to suppress evidence obtained 

in response to the subpoenas. This court reviews the denial of such a motion 

to suppress for an abuse of discretion. See State v. Peterson, 228 Ariz. 405, 407 

¶ 6 (App. 2011).6

 

6 The briefs on appeal do not address whether the subpoenas are proper 

under A.R.S. § 13-1812. Phillips states, in her opening brief on appeal, that 

the State “should have properly sought search warrants based on probable 

cause through a magistrate.” Having cited no authority for this proposition, 

however, she has abandoned and waived any such argument. See, e.g., State 
STATE v. PHILLIPS

Decision of the Court

19

¶49 The record shows the State used grand jury subpoenas duces 

tecum to obtain copies of Phillips’ bank statements and other transactional 

records. Phillips’ motion to suppress, however, did not assert that the grand 

jury subpoenas failed to comply with A.R.S. § 13-4071. Phillips did, 

however, raise the issue in a supplement to the motion to suppress.

¶50 Under A.R.S. § 13-4071, which Phillips cites on appeal, a clerk 

on request of a county attorney or attorney general “shall” issue a grand 

jury subpoena “without prior authorization by a grand jury, if all of the 

following occur:” (1) a grand jury was empaneled at the time of issuance; 

(2) the county attorney designates the subpoena with the standard 

identifying grand jury number; (3) the county attorney reports to the grand 

jury foreperson that the subpoena issued within 10 days of issuance and (4) 

the county attorney reports to the presiding judge that the subpoena issued 

within 10 days of issuance. See A.R.S. § 13-4071(C)(1)-(4). Although it is 

undisputed that the first two requirements were met, the State concedes the 

last two were not. The question, then, is whether the failure to comply with 

these reporting obligations required the court grant her motion to suppress 

evidence obtained in response to the grand jury subpoenas duces tecum.

¶51 The out-of-state authority Phillips cites either supports the 

State’s position, see State v. Reid, 945 A.2d 26, 30, 35-37 (N.J. 2008) (noting 

“municipal court subpoena” was improper under New Jersey law, but 

grand jury subpoena without notice would be proper), or is distinguishable,

see People v. Natal, 553 N.E.2d 239, 242 (N.Y. 1990) (noting, under New York 

law, “[i]t is for the court, not the prosecutor, to determine where 

subpoenaed materials should be deposited”); People v. Doty, 929 N.Y.S.2d 

464, 468-71 (N.Y. 2011) (trial court granting motion challenging grand jury 

presentment where witness provided hearsay, which was inadequate 

under New York law; in alternative discussion, noting subpoena seeking 

bank records “was akin to an administrative subpoena” that did not comply 

with notice requirements under federal law). Phillips provides no Arizona 

authority showing the court was required to grant her motion to suppress.

¶52 The clerk of court, when issuing a subpoena, cannot know 

whether the reporting obligations, relating to “the fact of the issuance of the 

subpoena,” A.R.S. § 13-4071(C)(3), (4), will later be met, meaning there can 

be no claim that the subpoenas were improperly issued. As the State notes, 

A.R.S. § 13-4071 does not specify that grand jury subpoenas are invalid if 

these reporting obligations are not met, and the statute does not specify a 

 

v. Bolton, 182 Ariz. 290, 298 (1995); MacMillan v. Schwartz, 226 Ariz. 584, 591 

¶ 33 (App. 2011). 
STATE v. PHILLIPS

Decision of the Court

20

remedy if they are not. Similarly, “[t]he availability of the suppression 

remedy for . . . statutory, as opposed to constitutional, violations . . . turns 

on the provisions” of the statute involved, not the “exclusionary rule aimed 

at deterring violations of Fourth Amendment rights.” United States v. 

Donovan, 429 U.S. 413, 432 n.22 (1977). On this record, although it appears 

the superior court had the discretion to grant Phillips’ motion to suppress, 

it also had the discretion to deny that motion. Accordingly, Phillips has not 

shown the court erred in denying her motion to suppress evidence obtained 

by grand jury subpoenas.7

IX. Phillips Has Not Shown The Superior Court Erred In Admitting 

Young’s Recorded Statements Pursuant To The Co-Conspirator 

Exception To The Rule Against Hearsay.

¶53 Phillips contends the superior court erred in admitting 

Young’s recorded statements because they were inadmissible under the 

rule against hearsay. Phillips acknowledges that she failed to timely object 

or otherwise preserve this issue in the superior court. Accordingly, review 

is limited to fundamental error. Henderson, 210 Ariz. at 567 ¶ 19.

¶54 Statements that are not hearsay include those made by a 

defendant’s co-conspirator. See Ariz. R. Evid. 801(d)(2)(E). As applicable 

here, a statement offered against an opposing party is admissible as nonhearsay if it “was made by the party’s coconspirator during and in 

furtherance of the conspiracy.” Id. “The statement must be considered but 

does not by itself establish . . . the existence of the conspiracy or 

participation in it.” Id. “A coconspirator’s statements are admissible when 

it has been shown that a conspiracy exists and the defendant and the 

declarant are parties to the conspiracy.” State v. Dunlap, 187 Ariz. 441, 458 

(App. 1996) (citation and internal quotations omitted). The superior court 

has substantial discretion in determining whether this showing has been 

made; even when such evidence is received over a timely objection, this 

court “will only reverse if the trial court abused its discretion in 

determining that statements of a coconspirator met the rule’s requirements 

and were admissible.” Id.

¶55 Arguing “the only evidence that could arguably establish an 

agreement to commit a crime were the payments Phillips made to Young,” 

 

7 Given this conclusion, the court need not and expressly does not address 

the competing arguments about harmless error and whether the State’s 

conduct was objectively reasonable and in good faith under A.R.S. § 13-

3925.
STATE v. PHILLIPS

Decision of the Court

21

Phillips adds that “there is no independent evidence to indicate that the 

payments were made for a criminal purpose other than the fact that they 

discussed the payments in code.” This argument is premised on the thought 

that evidence of a conspiracy must be direct and irrefutable to comply with 

Ariz. R. Evid. 801(d)(2)(E). Phillips offers no authority supporting that 

position. To the contrary, direct and circumstantial evidence are treated the 

same under Arizona law, State v. Stuard, 176 Ariz. 589, 603 (1993), and a 

conspiracy may consist of, and be proven by, circumstantial evidence alone,

State v. Arredondo, 155 Ariz. 314, 317 (1987) (“Criminal conspiracy need not 

be, and usually cannot be, proved by direct evidence.”).

¶56 The record contains circumstantial evidence of the conspiracy 

above and beyond the payments Phillips made to Young. Along with the 

murder itself, such evidence included Phillips’ statements before the 

murder that she wanted Triano killed; Young’s travelling to Tucson in a van 

later found to contain a shotgun, a list of Triano’s acquaintances and family 

in his handwriting and paperwork from Phillips’ divorce; the fact that 

Young had no known connection to Triano before the murder; Phillips’ 

recovery of proceeds from a life insurance policy on Triano’s life and her 

sending money to Young and Young’s demand for additional sums; their 

attempts to conceal and disguise payments and Phillips using false names 

in her dealings with Young. On this record, Phillips has not shown the 

superior court erred in admitting Young’s recorded statements pursuant to 

the co-conspirator exception to the rule against hearsay, let alone 

fundamental error resulting in prejudice. See James, 231 Ariz. at 493 ¶ 11.

X. Phillips Has Shown No Abuse Of Discretion In The Superior 

Court Limiting Post-Trial Juror Contact Based On A Juror 

Complaint.

¶57 When thanking and discharging the jurors, the superior court 

told them they were free to discuss the case if they wished to do so, “but if 

you don’t, let people know that, and they will abide by your wishes.” The 

court’s staff later informed the court and counsel that the jury had decided

not to talk to counsel. The court then personally conveyed the jurors’ wishes 

to counsel. The next week, however, a juror reported to the court that a

defense investigator had called her and that when she told him that she did 

not want to talk to him, the investigator said he would call her back later 

that week. In response, the court directed counsel to cease having their 

investigators contact jurors and to seek a hearing with the court before any 

other juror interviews take place. Phillips argues the court erred in issuing 

this order, a ruling this court reviews for an abuse of discretion. State v. 

Paxton, 145 Ariz. 396, 397 (App. 1985).
STATE v. PHILLIPS

Decision of the Court

22

¶58 Phillips argues there was no “indication that the jurors were 

being harassed or interviewed without their consent.” The record before the 

superior court, however, is to the contrary. The record includes a text

exchange between a juror and the court’s bailiff, where the juror wrote she 

had been contacted by a defense investigator who also had been a trial 

witness. The juror recounted telling the investigator that “I didn’t want to 

talk with anyone” and, when told the court ordered no additional juror 

contact, the juror responded “Wow, thanks. [The defense investigator] said 

he would be calling me back this week cuz I wouldn’t talk to him today. 

That feels good. It’s a relief for me. No pressure from him.” This record 

properly supports a finding of unwanted contact.

¶59 Phillips also argues she had an implied right to interview 

jurors pursuant to Ariz. R. Crim. P. 24.1(c)(3). That rule provides various 

ways juror misconduct may provide a basis for a motion for new trial. It 

does not, however, provide an unlimited right for post-verdict juror 

contact. Moreover, case law authorizes the superior court, given the juror’s 

complaint, prohibiting counsel “from contacting jurors without a prior 

showing of ‘good cause’ and approval from the court.” State v. Olague, 240 

Ariz. 475, 482 ¶ 23 (App. 2016) (citing Paxton, 145 Ariz. at 397). On this 

record, Phillips has shown no error in the superior court limiting postverdict juror contact.

8

XI. Phillips Has Shown No Abuse Of Discretion In Prohibiting 

Questions About Whether Witnesses Had Testified At Young’s 

Trial.

¶60 At Phillips’ request, during jury selection, the superior court 

read the following statement to the prospective jurors:

You will hear that the co-defendant in this case, 

Ronald Young, has been previously convicted 

of the crimes charged. You must not consider 

this information as evidence of Ms. Phillips’

guilt. Ms. Phillips is being tried separately with 

the evidence the State has determined pertains 

 

8 Phillips also states, with no further elaboration, that the decision on jury 

contact “was error that violates Phillips’ rights to due process, a fair trial, 

and her right to counsel under the U.S. Const., Amendments 5, 6, and 14 

and the Arizona Const., art. 2 §§4 and 24.” “Merely mentioning an 

argument in an appellate opening brief is insufficient” to preserve or raise 

the issue. MacMillan, 226 Ariz. at 591 ¶ 33. 
STATE v. PHILLIPS

Decision of the Court

23

to her. This evidence may differ from that 

presented at the co-defendant’s trial. You are 

not to speculate about the co-defendant’s guilt 

or how the evidence may have been presented 

differently. You must base Ms. Phillips’ guilt or 

innocence of the evidence presented in this case 

only.

The court included a similar statement in the final jury instructions. On 

appeal, Phillips argues the court erred in informing the jury about Young’s 

convictions.

¶61 Arizona “has long held that a defendant who invited error at 

trial may not then assign the same as error on appeal.” Moody, 208 Ariz. at 

453 ¶ 111. Because Phillips specifically requested that the jury be informed 

of the fact of Young’s convictions and did not object to the statement 

provided to the jury, the invited error doctrine precludes granting relief on 

this claim. See State v. Fulminante, 161 Ariz. 237, 248–49 (1988) (finding no 

error where defense counsel strategically stipulated to admission of 

defendant’s prior convictions), aff’d, 499 U.S. 279 (1991).

¶62 Phillips also contends the superior court deprived her of the 

right to present her third-party culpability defense by precluding her from 

asking any of the defense witnesses about Young’s trial and whether they

had testified in his defense. She argues this evidence was necessary to show 

the jury she was presenting a completely different defense than the one 

presented by Young. In substance, Phillips wanted to present evidence so 

“her jurors felt that Young had been wrongly convicted.” As set forth in the 

instructions Phillips requested, the jury was instructed by the court not to 

consider the fact that Young had been convicted in determining her guilt.

Further, the jury was specifically instructed that the trial evidence 

presented may differ from that presented at Young’s trial and that the jury 

was not to speculate about Young’s guilt or how the evidence may have 

been presented differently. Jurors are presumed to follow the court’s 

instructions. See State v. Newell, 212 Ariz. 389, 403 ¶ 68 (2006). Accordingly, 

the superior court properly precluded the presentation of any evidence 

regarding Young’s trial. 
STATE v. PHILLIPS

Decision of the Court

24

XII. Phillips Has Not Shown The Superior Court Abused Its Discretion 

In Denying Her Motion For Mistrial. 

¶63 Phillips argues the superior court erred in denying her motion 

for a mistrial or alternatively to strike testimony and provide a limiting 

instruction after defense counsel’s questioning resulted in a witness making 

a reference to Young’s conviction. The exchange during cross-examination 

was as follows, with the statement challenged by Phillips highlighted:

[Phillips’ Counsel] Q. Okay. All right. Well, let 

me -- let me -- let’s start a little list here. Given 

that we are trying to find a suspect, okay, or a

person of interest with regard to this -- you 

know, this investigation?

A. Okay. We are trying to find -- we are trying 

to find a bomber?

Q. Right.

A. I thought that had already been settled, but--

Q. In 2004, it had already been settled?

A. No. I thought that case had already been 

settled in 2009.

Q. Okay. Well, this is another trial.

A. Oh. I realize that, but now you are talking 

about a bomber.

Q. Okay. I am talking about a bomber that you 

were trying, in 2004, to locate when you made 

that device.

A. Okay. I’m not quite following your 

questioning, but proceed.

Q. In 2004, when you made that device, did you 

know who did this?
STATE v. PHILLIPS

Decision of the Court

25

A. No, I did not.

9

(Emphasis added.) Phillips argues the statement “that case had already 

been settled in 2009” is a “highly prejudicial statement” “referring to 

Young’s conviction,” meaning the court erred in denying her motion for 

mistrial or, alternatively, to strike and provide a curative instruction.

¶64 The State contends Phillips’ argument should be rejected 

under the invited error doctrine because the testimony was elicited by 

defense counsel. A review of the record finds no indication that defense 

counsel sought to develop the answer provided. Instead, it appears the 

testimony was unexpectedly volunteered by the witness due to confusion 

about the question. Under these circumstances, the invited error doctrine

does not apply. See State v. Lucero, 223 Ariz. 129, 135 ¶ 18 (App. 2009) 

(cautioning against apply the invited error doctrine “unless the facts clearly 

show that the error was actually invited by the appellant”). 

¶65 Declaring a mistrial is “the most dramatic remedy for trial 

error and should be granted only when it appears that justice will be

thwarted unless the jury is discharged and a new trial granted.” State v. 

Dann, 205 Ariz. 557, 570 ¶ 43 (2003). In determining whether to grant a 

mistrial, the court should consider whether the testimony called the jurors’

attention to matters that they would not be justified in considering in 

reaching a verdict and the probability under the circumstances that the 

testimony influenced the jurors. State v. Bailey, 160 Ariz. 277, 279 (1989).

Review for a trial court’s denial of mistrial is for abuse of discretion. State v. 

Jones, 197 Ariz. 290, 304 ¶ 32 (2000).

¶66 As applied, the superior court could reasonably conclude the 

brief statement would not influence the jury. As noted above, see Section XI, 

at Phillips’ request, the superior court told prospective jurors that Young 

“has been previously convicted of the crimes charged,” that jurors “must 

not consider this information as evidence of Ms. Phillips guilt,” must “not 

speculate about the co-defendant’s guilt or how the evidence may have 

been presented differently” and must determine her “guilt or innocence on

the evidence presented in this case only.” The court also gave a similar 

 

9 In her reply brief on appeal, Phillips seeks to rely on an additional 

statement by this same witness that she alleges was “a non-responsive 

answer.” By failing to press that issue in her opening brief, it is too late for 

Phillips to do so in her reply. See State v. Guytan, 192 Ariz. 514, 520 ¶ 15 

(App. 1998); see also Moody, 208 Ariz. at 452 ¶ 101 n.9. Even considering that 

additional statement, however, would not alter the analysis here.
STATE v. PHILLIPS

Decision of the Court

26

statement to the jury in final instructions. Jurors are presumed to follow the 

court’s instructions. See Newell, 212 Ariz. at 403 ¶ 68. Accordingly, Phillips 

has shown no abuse of discretion in the denial of her motion for mistrial or 

her motion to strike and give a curative instruction.

XIII. Phillips Has Shown No Error Regarding The Assessment Of 

Attorneys’ Fees.

¶67 At sentencing, the superior court ordered Phillips to pay 

$35,000 in attorneys’ fees pursuant to A.R.S. § 11-584. Phillips argues this 

assessment must be vacated because the court failed to make specific factual 

findings, including that she has the financial resources to make the payment 

and that she is able to pay the amount ordered without incurring 

substantial hardship. See State v. Taylor, 216 Ariz. 327, 334 ¶ 25 (App. 2007).

Because Phillips did not object to the assessment of attorney fees in the 

superior court, review is limited to fundamental error. Henderson, 210 Ariz. 

561, 567 ¶ 19.

¶68 By statute, a superior court may order a defendant to “repay 

to the county a reasonable amount to reimburse the county for the cost of 

the defendant’s legal defense.” A.R.S. § 11–584(C)(3). When “determining 

the amount and method of payment the court shall take into account the 

financial resources of the defendant and the nature of the burden that the 

payment will impose.” A.R.S. § 11–584(D). The failure of the court to make 

specific findings or to consider defendant’s ability to pay does not rise to 

the level of fundamental error. State v. Moreno-Medrano, 218 Ariz. 349, 353 

¶ 14 (App. 2008); see also Trantor v. Fredrikson, 179 Ariz. 299, 300-01 (1994)

(“Although findings of fact and conclusions of law are certainly helpful on 

appellate review, they do not go to the foundation of the case or deprive a 

party of a fair hearing.”). Nor has Phillips shown the court could not have 

assessed the fees imposed pursuant to A.R.S. § 11-584. Thus, Phillips has 

failed to show fundamental error resulting in prejudice regarding the 

award of attorneys’ fees.

XIV. Phillips Has Shown No Error In The Superior Court Partially 

Precluding Testimony Of Kelly Goldsmith. 

¶69 Phillips argues the court erred in precluding Kelly Goldsmith 

from testifying to statements she made to the prosecutor regarding her

opinions after reviewing Young’s financial records. This court reviews a 

ruling on the admissibility of evidence for an abuse of discretion. Escalante–

Orozco, 241 Ariz. at 274 ¶ 51.
STATE v. PHILLIPS

Decision of the Court

27

¶70 In 2007, Goldsmith, a certified fraud examiner, was asked to 

review Young’s ledgers and bank records as part of the murder 

investigation. After doing so, Goldsmith met with the prosecutor and 

expressed certain opinions. The prosecutor ultimately decided not to call 

her as a trial witness, instead using a different financial analyst at trial.

During trial, Phillips informed the court that she intended to call Goldsmith 

to testify regarding her conversations with the prosecutor. Phillips asserted

she was entitled to show the jury that Goldsmith’s inability to opine that 

she paid Young for killing Triano was the reason the prosecutor elected to 

use a different financial analyst at trial. The State objected, arguing 

Goldsmith’s conversations with the prosecutor were hearsay and work 

product. The court sustained the objection, ruling Phillips could question 

Goldsmith about her opinions regarding the financial records and payment, 

but could not ask about her conversations with the prosecutor.

¶71 Although the superior court based its ruling on the work 

product doctrine, this court need not reach that issue because the proposed 

testimony is inadmissible hearsay. State v. Carlson, 237 Ariz. 381, 387 ¶ 7 

(2015) (noting this court will uphold a ruling if it is correct for any reason).

Goldsmith’s out of court statements to the prosecutor, offered for the truth 

of the matter asserted, were hearsay. Ariz. R. Evid. 801(c). Unless 

admissible pursuant to an exception to the rule against hearsay, hearsay is 

inadmissible to prove the truth of the matter asserted. Ariz. R. Evid. 801(c), 

802. Here, Phillips sought to introduce Goldsmith’s out-of-court statements 

to the prosecutor to show “Goldsmith agreed with the defense theory that 

Young’s ledgers were as likely proof of a fraud by him than they were 

evidence of a payment scheme in a murder for hire.” Thus, the proposed 

testimony was hearsay, and no exception to the rule against hearsay is 

argued by Phillips to support its admission.

¶72 Contrary to Phillips’ contention, the superior court did not 

impermissibly prevent her from presenting any admissible evidence 

relevant to her defense. As the court made clear, Phillips was not precluded 

from eliciting from Goldsmith whatever opinions she may have formed 

regarding her review of Young’s financial records; it was only her hearsay 

statements to the prosecutor that were inadmissible. Indeed, Phillips had 

Goldsmith testify that based on her review of the records and she could not 

make any conclusion as to why those transactions were going back and 

forth between Young and Phillips. On this record, Phillips has shown no 

reversible error by precluding the admission of Goldsmith’s hearsay 

statements.
STATE v. PHILLIPS

Decision of the Court

28

XV. Phillips Has Not Shown The Superior Court Erred In Denying Her 

Motions To Dismiss Or Vacate Judgment Based On Her 

Arguments That The State Rendered Her Indigent.

¶73 Phillips argues the superior court erred in denying her motion 

to vacate judgment. The motion raised a variety of claims for relief, but 

Phillips limits her argument on appeal to a claim of a denial of her Sixth 

Amendment right to counsel of choice. Relying on the plurality in Luis v. 

United States, 136 S. Ct. 1083 (2016), Phillips argues “the State deliberately 

delayed extraditing [her] until after a civil suit had been filed against her, a 

TRO based on A.R.S. § 13-2314.04(B) freezing her assets had been entered, 

a $10,000,000 judgment had been entered in the civil suit and she lost her 

$4,000,000 home to foreclosure,” thereby denying “her Sixth Amendment 

right to counsel of her choice.” 

¶74 The Luis plurality held the government’s pretrial seizure of 

legitimate, untainted assets to secure a potential forfeiture violates the Sixth 

Amendment where those assets are needed to retain counsel of choice. See 

136 S. Ct. at 1088. The Luis plurality made plain that its analysis was what 

“the Government” could, and could not, do in seizing assets of a criminal 

defendant in a way that the defendant claimed “prevents her from paying 

her lawyer” of choice. Id. at 1087. Unlike Luis, however, in this case, the 

government did not seize Phillips’ assets. Instead, plaintiffs in a civil 

wrongful death suit arising out of Triano’s murder obtained the assets, 

making Luis inapplicable. See Estate of Lott v. O’Neill, 165 A.3d 1099 (Vt. 

2017) (limiting Luis to government seizure of defendant’s assets). Phillips 

cites no authority applying the Luis plurality in a context similar to this case.

¶75 To the extent Phillips argues a delay in her prosecution from 

filing to her extradition resulted in her indigency, that claim overlooks the 

fact that Phillips was not prohibited from voluntarily returning to face the 

charges. Phillips’ own conduct –- in deciding to remain in Europe and 

return only after being extradited –- not the State’s conduct, resulted in the 

delay. As a result, Phillips has failed to show the State improperly rendered 

her indigent.
STATE v. PHILLIPS

Decision of the Court

29

CONCLUSION

¶76 For the foregoing reasons, Phillips’ convictions and resulting 

sentences are affirmed.