                        SUPREME COURT OF ARIZONA
                                 En Banc


STATE OF ARIZONA,                  )          Arizona Supreme Court
                                   )          No. CR-01-0270-AP
               Appellee,           )
                                   )
    v                              )          Maricopa County Superior
                                   )          Court
CHRISTOPHER GEORGE THEODORE        )          No. CR1996-011714
LAMAR,                             )
                                   )
               Appellant.          )          O P I N I O N
                                   )
__________________________________ )

        Appeal from the Superior Court of Maricopa County
                         No. CR1996-011714
              The Honorable Stephen A. Gerst, Judge

                          CONVICTIONS AFFIRMED

_________________________________________________________________


Janet Napolitano, Former Arizona Attorney General                 Phoenix
Terry Goddard, Arizona Attorney General
   by     Kent E. Cattani, Chief Counsel Capital
          Litigation Section
   and    Robert L. Ellman, Assistant Attorney General
Attorneys for the State of Arizona

Susan M. Sherwin, Maricopa County                                 Phoenix
Office of the Legal Advocate
   by     Brent E. Graham
Attorneys for Christopher George Theodore Lamar

_________________________________________________________________

M c G r e g o r, Vice Chief Justice

¶1            A jury convicted Christopher George Theodore Lamar of the

first degree murder and kidnapping of Ronald Jones.           Following a

sentencing hearing, the trial judge sentenced Lamar to death for

the   first    degree   murder   conviction   and   to   twenty-one   years
imprisonment for the kidnapping conviction.            Appeal to this court

is automatic and direct for capital cases.                Ariz. Rev. Stat.

(A.R.S.) § 13-703.04 (Supp. 2002); Ariz. R. Crim. P. 31.2.b.              We

exercise jurisdiction pursuant to Article VI, Section 5.3 of the

Arizona Constitution and A.R.S. section 13-4031 (2001).

                                      I.

¶2             This court views the evidence in the light most favorable

to sustaining the verdict.         State v. Moore, 111 Ariz. 496, 497, 533

P.2d 663, 664 (1975).

¶3             In April 1996, Lamar met and became involved with Myla

Hogan.       While the two were dating, Hogan lived in a house on 81st

Avenue in Peoria, Arizona, with several other people, including

Mary       Keovorabouth,   Ouday   “Tim”   Panmany,   Vincent   Macchirella,

Richard Valdez, and Abraham Hermosillo.1

¶4             On May 11, 1996, Ronald Jones left his house around 1:00

p.m., telling Alicia Sosa, his live-in girlfriend, that he planned

to deliver documents to a loan company.               At some point, Hogan

called Jones’s pager to invite him to lunch.           Hogan and Jones knew

one another through Keovorabouth.           Jones picked Hogan up at the

house on 81st Avenue, and the two ate lunch together.


       1
          Vincent Macchirella and Abraham Hermosillo accepted plea
agreements in exchange for their testimony in any trial related to
the murder and kidnapping of Ronald Jones. Macchirella pled guilty
to second degree murder and received a thirteen-year sentence.
Hermosillo pled guilty to second degree murder and received a ten-
year sentence.

                                       2
¶5         When Hogan and Jones returned to the house on 81st

Avenue, Keovorabouth, Hermosillo, Macchirella, Valdez, Panmany, and

Lamar were all present.     Prior to May 11, the group had devised a

plan to kidnap and rob Jones.   The purpose of the plan was twofold:

to steal Jones’s money and possessions so they could pay rent and

to “rough him up a little bit” so he would stop spending time with

Hogan.

¶6         Lamar and the others were waiting for Jones when Hogan

and Jones returned to the house. When Lamar confronted Jones about

his relationship with Hogan, Jones responded that he did not know

of Hogan’s involvement with Lamar.       Lamar then punched Jones.

After Jones fell to the floor, Macchirella pointed a gun at him.

At Lamar’s direction, Hermosillo retrieved duct tape and bound

Jones’s hands and ankles.

¶7         Lamar and Macchirella then moved Jones into a bedroom and

took his possessions, including his shoes, jewelry, fifty dollars,

and some crack cocaine.      Jones cried and pleaded for his life,

offering to write a check if they released him.   Lamar demanded the

gun from Macchirella, explaining that he had “done this before.”

The group then led Jones upstairs and held him captive while

everyone watched television and took turns guarding Jones with the

gun.   Jones begged to be let go several times.

¶8         When it became dark, Lamar and the others led Jones

downstairs and forced him into the front passenger seat of Jones’s


                                   3
car.    Lamar    directed   Macchirella   to   drive   to   Lamar’s   and

Hermosillo’s old neighborhood near 35th Avenue and Broadway Road.

Hermosillo, Panmany, and Valdez followed in a stolen truck but made

a stop along the way.    Lamar sat behind Jones in the car.       At one

point, Lamar held the gun to Jones’s head and pulled the trigger,

but the gun did not fire.      Jones cried and pleaded for his life

when he heard the click of the gun.

¶9         Eventually, Lamar directed Macchirella to stop the car.

Macchirella pulled the car to the side of the road near a vacant

lot.   The three men exited the vehicle and walked to the back of

the car.    At Lamar’s direction, Macchirella opened the trunk.

Lamar then shot Jones.      At trial, the medical examiner testified

that Jones suffered two gunshot wounds to the head.          Macchirella

testified that as he and Lamar picked Jones up and placed him in

the trunk, Jones made “gurgling” sounds, as if he were choking on

his own blood.

¶10        Hermosillo, Panmany, and Valdez were at Hermosillo’s

grandmother’s nearby house when they heard gunshots.          When they

arrived at the scene and asked what had happened, Lamar responded

by opening the trunk and patting Jones’s back.

¶11        The group decided to move Jones’s car and bury his body.

The car would not start, so they pushed it to a parking lot.

Someone retrieved a shovel, and, at Lamar’s direction, Macchirella

dug a grave.     Lamar, Hermosillo, Panmany, and Valdez then dragged


                                   4
Jones’s body to the grave, pushed him into the hole, and covered it

with dirt and brush.      Some or all of the group removed a cellular

telephone, a radio, a CD player, a toolbox, and a tool belt from

Jones’s car.      They then set Jones’s car on fire.

¶12           At some time during the night, Macchirella called the

house    in    Peoria   from   Jones’s   cellular   telephone,   telling

Keovorabouth they had made a mistake.         Lamar chastised him for

using the phone, which could connect them to Jones.

¶13           Everyone then went to a party in Lamar’s and Hermosillo’s

old neighborhood.       At the party, Lamar saw his cousin Frances

Lamar.    Frances later testified that she noticed some blood on

Lamar’s shoes.      Lamar asked Frances for a ride to Mesa, and while

they were driving she saw him throw a shoe out the window.        Lamar

returned to the party and he, Macchirella, Hermosillo, Panmany, and

Valdez drove back to Peoria in the stolen truck.         They abandoned

the truck in a nearby parking lot and walked back to the house on

81st Avenue.

¶14           Hogan testified that after the group returned to the

house she asked Lamar where they had been and he responded, “Don’t

ask.”    Hogan described Lamar as looking very white, as if he had

seen a ghost.

¶15           According to Hermosillo, when they returned to the house,

both Lamar and Macchirella accused the other of shooting Jones, but

both eventually claimed to have shot Jones.         Hermosillo testified


                                    5
that Lamar also described the size of the holes that the bullets

made in Jones’s head.

¶16        In    September    1996,   Silent   Witness      received   a    tip,

apparently from Lamar’s cousin Frances, that the police could find

a body buried in a vacant lot near 43rd Avenue and Weir.               Later,

Hogan, Frances, and Frances’s sister Marie spoke with Maricopa

County Sheriff Detective John Strang.              After interviewing the

women, the police searched a gravel pit near 43rd Avenue and Weir

and located a body, later identified through dental x-rays as

Ronald Jones.

¶17        The    police   then   executed     a   search    warrant   at    the

apartment of Debra Lamar, Lamar’s aunt, where Lamar and Hogan

sometimes stayed.     In a trash dumpster behind the apartment, the

police discovered a tool belt, wrapped in a diaper. Debra admitted

that she found the tool belt in the pantry, where Lamar kept his

belongings, and that she threw the belt into the dumpster.                   The

police also found a toolbox on a shelf located in the rear of the

kitchen.

¶18        The police did not test the toolbox or the tools found in

it for fingerprints.         Alicia Sosa testified, however, that she

recognized some of the tools as belonging to Jones.                Sosa also

identified handwriting on a note found in the toolbox as her own.

¶19        In February 1997, a grand jury indicted Lamar for the

first degree murder and kidnapping of Ronald Jones.                The court


                                      6
appointed Mr. Steinle and Mr. Dupont from the Office of the Legal

Defender to represent Lamar. In May 1999, Lamar moved to discharge

Mr. Steinle but consented to his continued representation by Mr.

Dupont.   At that time, Mr. Steinle and Mr. Dupont told the trial

judge that Lamar’s case was prepared for trial, and that they had

provided Lamar the materials related to his case.       The trial court

granted Lamar’s request and dismissed Mr. Steinle.             In October

1999, Lamar moved to represent himself but withdrew his motion when

the trial judge denied his request for a continuance.

¶20       On   December   10,   1999,   a   jury   convicted    Lamar   of

kidnapping and first degree murder on both premeditated and felony

murder theories.   After considering the aggravating and mitigating

circumstances, the trial court sentenced Lamar to death.

                                 II.

¶21       Lamar argues that the trial court abused its discretion

in denying his motion to continue and that the denial effectively

prevented him from representing himself, thereby violating rights

secured by the Sixth Amendment and Article II, Section 24 of the

Arizona Constitution.2    The State contends the court acted within

its discretion and did not infringe upon Lamar’s Sixth Amendment


      2
          Lamar does not assert that Article II, Section 24 of the
Arizona   Constitution   provides   a  broader   right   to   self-
representation than does the Sixth Amendment.       Nor does Lamar
separately analyze his argument under the Arizona Constitution. We
therefore analyze his argument in accordance with Sixth Amendment
jurisprudence. See State v. Nunez, 167 Ariz. 272, 274 n.2, 806
P.2d 861, 863 n.2 (1991).

                                   7
right because it did not deny Lamar’s motion to represent himself.3

                                     A.

¶22        The right to counsel under both the United States and

Arizona   Constitutions   includes       an   accused’s   right    to   proceed

without counsel and represent himself.          Faretta v. California, 422

U.S. 806, 836, 95 S. Ct. 2525, 2541 (1975); State v. De Nistor, 143

Ariz. 407, 412, 694 P.2d 237, 242 (1985).          To exercise this right,

a defendant must voluntarily and knowingly waive his right to

counsel and make an unequivocal and timely request to proceed pro

se.   De Nistor, 143 Ariz. at 412, 694 P.2d at 242.               Generally, a

request is considered timely if it is made “before meaningful trial

proceedings have commenced,”4 which courts have interpreted to mean

before the jury is empaneled.   Armant v. Marquez, 772 F.2d 552, 555

(9th Cir. 1985); De Nistor, 143 Ariz. at 412, 694 P.2d at 242.               If

a defendant complies with these requirements, the trial court



      3
          The State also argues that Lamar did not actually move to
continue the trial date, noting that he failed to file a written
motion in compliance with Rule 8.5 of the Arizona Rules of Criminal
Procedure. We reject this assertion. First, both the State and
defense counsel previously made oral requests for continuances,
which the trial court granted. Although it is preferable that a
party file a written motion for continuance, given the trial
court’s previous rulings, we do not find that Lamar failed to
request a continuance simply because he did not file a written
motion.    Moreover, the record indicates that the trial court
treated arguments on October 25 and 26, 1999, regarding whether
Lamar desired to represent himself, as involving a motion to
continue.
      4
           Chapman v. United States, 553 F.2d 886, 895 (5th Cir.
1977).

                                     8
should grant the defendant’s request to represent himself. Armant,

772 F.2d at 555.

¶23         Lamar first expressed his desire to represent himself on

October 21, 1999, when he filed a motion for change of counsel by

requesting that the Office of the Legal Defender be withdrawn and

that he be substituted as replacement counsel.             Lamar asked for an

extension of the trial date until at least January to prepare his

defense.    Because the trial, scheduled to begin on November 18,

1999, had not yet commenced, Lamar’s request was timely.

¶24         At a hearing on the motion on October 25, the court

stated it would consider the request on the following day.               At that

hearing, the trial judge asked Lamar a series of questions to

ensure that Lamar was voluntarily and knowingly relinquishing his

right to counsel.         Lamar unequivocally asserted his right to

represent himself and signed a waiver of counsel form.             The record

clearly shows that the trial court intended to grant Lamar’s

request for self-representation.               When the trial judge explained

that he did not intend to continue the trial and asked whether,

given that knowledge, Lamar still wished to represent himself,

Lamar responded, “No.” He thus effectively withdrew his request.

                                          B.

¶25         Lamar argues that the trial court abused its discretion

in    denying   his   request   for   a    continuance   because   the   denial

resulted in a de facto denial of his constitutional right to self-


                                          9
representation.   We disagree.

¶26       Although a defendant enjoys a constitutional right to

represent himself, Faretta, 422 U.S. at 836, 95 S. Ct. at 2541, the

Constitution does not also require that a trial court grant a

defendant a continuance regardless of the circumstances.   A trial

court maintains discretion in determining whether to grant a

continuance made in conjunction with a motion to proceed pro se.

See Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 849 (1964)

(reviewing a denial of a continuance that the defendant claimed

deprived him of his right to counsel for an abuse of discretion);

Sampley v. Attorney Gen., 786 F.2d 610, 613 (4th Cir. 1986)

(“[T]rial courts must be accorded wide discretion in deciding

whether to grant continuances, notwithstanding that constitutional

rights may be implicated.”); State v. LeVar, 98 Ariz. 217, 220-21,

403 P.2d 532, 535 (1965) (explaining that although the right to

counsel includes the right to adequate time to prepare, a trial

court maintains discretion in determining whether to grant a

continuance).

¶27       A trial court maintains discretion because a defendant’s

right to represent himself does not exist in a vacuum.   De Nistor,

143 Ariz. at 412, 694 P.2d at 242.    The court must consider the

defendant’s right in conjunction with a victim’s constitutional




                                 10
right to a speedy trial5 and the trial court’s prerogative to

control its own docket.    Scheduling a trial presents the practical

challenge of “assembling the witnesses, lawyers, and jurors at the

same place at the same time.”     Morris v. Slappy, 461 U.S. 1, 11,

103 S. Ct. 1610, 1616 (1983).          Consequently, when a defendant

asserts his right to self-representation and the trial court is

prepared to grant the defendant’s motion to proceed pro se but not

his request for a continuance, “only an unreasoning and arbitrary

‘insistence upon expeditiousness in the face of a justifiable

request for delay’ violates” the defendant’s constitutional right

to self-representation.    Id. at 11-12, 103 S. Ct. at 1616   (quoting

Ungar, 376 U.S. at 589, 84 S. Ct. at 849).

¶28       Whether denying a continuance violates a defendant’s

constitutional rights depends on the facts and circumstances of a

particular case.   State v. Hein, 138 Ariz. 360, 369, 674 P.2d 1358,

1367 (1983).   We therefore view the trial court’s denial of a

continuance in the context of a case’s history.

¶29       In De Nistor, which involved facts similar to those in

this case, we discussed the factors a court should consider in

deciding a motion to continue made in conjunction with a request

for self-representation.    There, after the jury had been empaneled



      5
          The Arizona Constitution protects a victim’s right “[t]o
a speedy trial or disposition and prompt and final conclusion of
the case after the conviction and sentence.” Ariz. Const. art. II,
§ 2.1(A)10.

                                  11
and   several   witnesses   had   testified,    the   defendant   asked    to

discharge her attorney so that she could represent herself.               143

Ariz. at 412, 694 P.2d at 242.           The defendant also requested a

continuance to prepare her defense.       Id.   The trial court stated it

would permit the defendant to proceed pro se but that it would not

grant a continuance.    Id.    We upheld the trial court’s decision and

explained   that   a   trial   court,    in   evaluating   a   request    for

continuance, coupled with a request for self-representation, should

consider factors such as “the reasons for the defendant’s request,

the quality of counsel, the defendant’s proclivity to substitute

counsel and the disruption and delay expected in the proceedings if

the request were to be granted.”          Id. at 413, 694 P.2d at 243.

Three of the four De Nistor factors are relevant in evaluating

Lamar’s case:    the reasons for the continuance, Lamar’s proclivity

to substitute counsel, and the expected disruption if the trial

court granted the continuance.6         We conclude the trial court did

not abuse its discretion in denying Lamar’s motion to continue.

¶30         Although Lamar discharged one of his attorneys in May



      6
          The De Nistor facts differ from Lamar’s facts in one
significant aspect: De Nistor did not timely assert her right to
self-representation whereas Lamar did.    Although a court should
grant a timely, unequivocal motion to proceed pro se, the court
maintains discretion in deciding whether to grant an untimely
motion for self-representation.    If a defendant makes a timely
request, therefore, the quality of counsel should have little
impact on the trial court’s decision. If the trial court exercises
its discretion over an untimely request, the quality of counsel
factor could more directly affect the court’s decision.

                                    12
1999,   he   had    not     demonstrated       a    proclivity   for   substituting

counsel.     That factor supports granting a continuance.                  The other

factors, however, weigh against granting the request.

¶31          The explanation a defendant provides to the trial court

to justify a request for a continuance constitutes a critical

factor in determining whether the trial court abused its discretion

in denying the request.            See Ungar, 376 U.S. at 589, 84 S. Ct. at

850; United States v. Garmany, 762 F.2d 929, 936 (11th Cir. 1985);

United States v. Uptain, 531 F.2d 1281, 1285-86 (5th Cir. 1976).

Without knowing the reasons justifying a continuance, we are left

to speculate whether the trial court acted arbitrarily in balancing

the defendant’s needs against the victim’s rights and the orderly

administration of justice.

¶32          At    trial,    and    now   on       appeal,   Lamar   has   failed   to

articulate any specific reasons that necessitated a continuance.

He points to nothing in the record, and we have found nothing on

review, that explains what he would have done had the trial been

continued that he could not have accomplished before the November

trial date. Indeed, when Lamar first asserted his right to proceed

pro se, he indicated that although he desired more time, he could

be prepared for the November trial. Moreover, according to Lamar’s

counsel, his case had been ready for trial for almost five months.

Although Lamar asserts that he had not received all the information

he needed to prepare, he has not identified any materials to which


                                          13
he lacked access. His lawyers’ statements to the court further

undermine his position; they told the trial judge that Lamar had

received the evidence against him long before he requested the

continuance.7      Lamar also indicated that he had received relevant

material. At the October 26 hearing, the judge asked Lamar whether

he    understood   the    complexity      of     his    case    and     the   risks     of

proceeding pro se.       Lamar responded:        “Yes, sir.          I’ve gone over my

case many times, my police reports, and what I have.” Furthermore,

if Lamar had represented himself, the court indicated it would

appoint his lawyers, who were familiar with his case, as his

advisory counsel.        Finally, the State’s evidence implicating Lamar

was not technical and consisted mostly of circumstantial evidence

and the testimony of co-defendants Macchirella and Hermosillo.

Accordingly,    the     record    provides      no     basis    for    this    court    to

conclude   that    the    time    available      to     Lamar    before       trial    was

insufficient    to      allow   Lamar    to     exercise       his    right    to   self-

representation.

¶33         The trial court also had substantial reason to conclude

that continuing the trial would have caused considerable disruption

and    delay.      By    the    time    Lamar    requested       a    continuance       in



       7
          At the October 26, 1999 hearing, Lamar indicated he
needed more time because he was “just barely getting some of the
stuff from [his] case.” On May 24, 1999, however, Lamar’s lawyers
stated: “We, for the record, categorically deny the fact that he
has not been provided discovery or the opportunity to review the
videotapes, audiotapes or anything else that he wanted.”

                                          14
conjunction with his motion to proceed pro se, the trial court had

granted fifteen motions to continue.            Coordinating the lawyers’

busy schedules had presented a challenge:              the court had granted

continuances    on    five   occasions    due     to    schedule    conflicts.

Attempting to reschedule a trial that the court anticipated would

last for three to four weeks undoubtedly would have caused further

disruption and delay.

¶34        In addition, the court’s decision could not have come as

a surprise to Lamar.    A grand jury indicted Lamar in February 1997.

After setting a firm trial date for November 18, 1999, the trial

court informed counsel and Lamar during a hearing in August 1999,

that the court did not anticipate granting any more continuances.

Given those circumstances, Lamar should have anticipated that any

request for a continuance would be denied. Accordingly, applying

the factors identified in De Nistor, we hold the trial court did

not abuse its discretion in denying Lamar’s continuance.

¶35        Lamar argues that, rather than rely on our decision in De

Nistor, we should apply the standards articulated by the Ninth

Circuit Court of Appeals in Armant v. Marquez, 772 F.2d 555 (9th

Cir.   1985),   for   considering   a    motion    to    continue     filed   in

conjunction with a request for self-representation.                Although our

conclusion rests upon the test this court adopted in De Nistor, we

would reach the same result under Armant.

¶36        In Armant, the Ninth Circuit considered four factors to


                                    15
determine whether a trial court abused its discretion in denying a

motion to continue:         (1) the degree of diligence by the defendant

before the date beyond which a continuance is sought; (2) whether

the continuance would have served a useful purpose if granted; (3)

the inconvenience that granting the continuance would have caused

the court or government; and (4) the amount of prejudice suffered

by the defendant.      Armant, 772 F.2d at 556-57.

¶37         By waiting until October 21, 1999, to unequivocally

assert his right to represent himself, Lamar exercised little

diligence. His request came more than two and one-half years after

he    entered   his   not    guilty   plea.    Although   Lamar   expressed

dissatisfaction with one of his attorneys in May 1999, he did not

at that time ask to represent himself.           Instead, he consented to

representation by Mr. Dupont and the Office of the Legal Defender.

Second, as previously discussed, Lamar has not explained how the

continuance would have been useful because he has not told us what

he could have accomplished during the two-month extension that he

could not accomplish before the November trial date. Third, unlike

the situation in Armant, which involved a one-day trial, re-

calendaring     Lamar’s       case    would   have   caused   considerable

inconvenience, for the reasons explained above.               Finally, the

record does not indicate the denial of the continuance prejudiced

Lamar.    Lamar had twenty-three days to prepare for trial with the

assistance of advisory counsel familiar with his case.              He has


                                       16
failed to explain why he could not meaningfully exercise his right

to self-representation without a continuance.      Accordingly, we

conclude the trial court did not abuse its discretion under the

Armant standard.

                                III.

¶38       Prior to trial, the trial court granted Lamar’s motion in

limine to preclude the State from introducing evidence that Richard

Valdez, speaking in Lamar’s presence, allegedly threatened Hogan by

asking her if she would like to be buried next to her friend,

referring to Ronald Jones.    During the State’s direct examination

of Hogan, she testified about a time Macchirella threatened her

when Lamar was not present. The State inquired whether anyone made

threats in Lamar’s presence.    Hogan responded, “When Richard said

they was [sic] going to bury me next to ---.”      Lamar’s counsel

immediately interrupted Hogan, objected on hearsay as well as

foundational grounds, and later moved for a mistrial or dismissal.

¶39        Lamar raises three arguments related to this statement:

(1) the trial court abused its discretion in denying his motion for

a mistrial; (2) the prosecutor’s conduct in eliciting the statement

warranted a dismissal; and (3) Hogan’s hearsay statement violated

his constitutional right to confrontation.   U.S. Const. amend. VI;

Ariz. Const. art. II, § 24.    We reject all three arguments.

                                 A.

¶40       We conclude that the trial court did not abuse its


                                 17
discretion    in   denying    Lamar’s    motion   for   a   mistrial.    “A

declaration of mistrial is the most dramatic remedy for trial error

and is appropriate only when justice will be thwarted if the

current jury is allowed to consider the case.” State v. Nordstrom,

200 Ariz. 229, 250 ¶ 68, 25 P.3d 717, 738 (2001).           The trial court

must consider two factors in determining whether to grant a motion

for a mistrial based on a witness’s testimony:              (1) whether the

testimony called to the jurors’ attention matters that they would

not be justified in considering in reaching their verdict and (2)

the probability under the circumstances of the case that the

testimony influenced the jurors.         State v. Bailey, 160 Ariz. 277,

279, 772 P.2d 1130, 1132 (1989).        This court gives great deference

to a trial court’s decision because the trial court “is in the best

position to determine whether the evidence will actually affect the

outcome of the trial.”       State v. Jones, 197 Ariz. 290, 304 ¶ 32, 4

P.3d 345, 359 (2000).

¶41         The trial court determined that Hogan’s testimony that

Valdez threatened her constituted hearsay. Therefore, arguably her

testimony called the jurors’ attention to a matter inappropriate

for them to consider.    The trial court did not abuse its discretion

in denying the motion for a mistrial, however, because several

factors make it highly improbable that Hogan’s statement influenced

the jury.

¶42         First, Lamar’s counsel immediately objected, preventing



                                    18
Hogan from completing the statement and mentioning that burying her

next to her friend meant next to Jones.        Second, even if Hogan had

completed   the   statement,   the   statement    does   not    necessarily

implicate Lamar in the murder and kidnapping of Jones.            By using

the pronoun “they,” Valdez could have been referring to several

different people.    Even if the jury inferred that Valdez included

Lamar in his reference to “they,” the inference does not prejudice

Lamar unless the jury also believed Lamar adopted or joined in

Valdez’s threat.      The extremely tenuous link between Hogan’s

incomplete statement and Lamar make any inference by the jury that

Lamar adopted the statement highly improbable.

¶43         Furthermore, to avoid any prejudice to Lamar, the trial

court   instructed   the   jury   to      disregard   Hogan’s   statement,

explaining that there was no indication that Lamar heard the

threat, acknowledged it, or was in anyway involved with Valdez’s

threat. The court’s curative instruction sufficiently overcame any

probability that the jury would conclude that Lamar had joined in

the threat.    See State v. Ramirez, 116 Ariz. 259, 265, 569 P.2d

201, 207 (1977) (concluding admission of victim’s hearsay statement

did not require reversal, in part, because the court instructed the

jury to disregard the statement). Accordingly, the trial court did

not abuse its discretion in denying Lamar’s motion for a mistrial.

                                     B.

¶44         Lamar next asserts that the prosecutor’s conduct in



                                     19
eliciting Hogan’s statement warrants a dismissal. Specifically, he

argues that the misconduct denied him a fair trial and violated his

due process and double jeopardy rights, relying upon the Fifth and

Fourteenth Amendments and Article II, Sections 4, 10, and 24 of the

Arizona Constitution. Lamar also relies on Pool v. Superior Court,

139 Ariz. 98, 677 P.2d 261 (1984).

¶45         We reject Lamar’s arguments and find his reliance on Pool

misplaced.       Lamar’s        characterization    of   the   prosecutor’s

questioning of Hogan as misconduct conflicts with the trial court’s

finding that, although the prosecutor’s question was “inartfully

framed,” the prosecutor did not intentionally evade the trial

court’s order.    This finding of fact is not clearly erroneous.         See

State v. Cuffle, 171 Ariz. 49, 51, 828 P.2d 773, 775 (1992)

(“Appellate review of a trial court’s findings of fact is limited

to    a   determination    of    whether    those   findings   are   clearly

erroneous.”).    Importantly, a prosecutor’s misconduct implicates a

defendant’s double jeopardy rights under Pool only when:

      1. Mistrial is granted because of improper conduct or
      actions by the prosecutor; and
      2. such conduct is not merely the result of legal error,
      negligence, mistake or insignificant impropriety, but,
      taken as a whole, amounts to intentional conduct which
      the prosecutor knows to be improper and prejudicial, and
      which he pursues for any improper purpose with
      indifference to a significant resulting danger of
      mistrial or reversal; and
      3. the conduct causes prejudice to the defendant which
      cannot be cured by means short of a mistrial.

Pool, 139 Ariz. at 108-09, 677 P.2d 271-72 (footnote omitted). Not

only did the trial court find that the prosecutor’s conduct was not

                                       20
intentional, but, in addition, nothing in the record suggests that

the prosecutor asked the question with an improper purpose or

indifference to a significant resulting danger of mistrial or

reversal.    Lamar’s argument that his double jeopardy rights were

violated lacks merit.

                                 C.

¶46         Lamar finally asserts that Hogan’s hearsay statement

violated his constitutional right to confrontation.    U.S. Const.

amend. VI; Ariz. Const. art. II, § 24.       Harmless error review

applies to a confrontation violation.     Schneble v. Florida, 405

U.S. 427, 430, 92 S. Ct. 1056, 1059 (1972); State v. Corrales, 138

Ariz. 583, 595, 676 P.2d 615, 627 (1983).       Given that Hogan’s

statement did not necessarily implicate Lamar and that the judge

gave a curative instruction, we can conclude beyond a reasonable

doubt that the statement did not impact the jury’s verdict.    Thus,

any confrontation violation was harmless error.

                                 IV.

¶47         Lamar presents several other arguments related to the

guilt phase of his trial.   We conclude that none has merit.

                                 A.

¶48         Lamar contends the trial court’s instruction explaining

the State’s burden of proof beyond a reasonable doubt, which

tracked the language we approved of in State v. Portillo, 182 Ariz.




                                 21
592, 596, 898 P.2d 970, 974 (1995), is constitutionally deficient.8

Specifically, Lamar asserts that the Portillo instruction, by using

the phrase “firmly convinced,” equates the beyond a reasonable

doubt standard with a clear and convincing evidence standard,

thereby lessening the State’s burden.         Lamar further argues that

explaining to the jury that “[t]here are very few things in this

world that we know with absolute certainty” reduces the State’s

burden as well.    Finally, Lamar contends that the last sentence,

which refers to a “real possibility” the defendant is not guilty,

impermissibly shifts the burden to the defendant.

¶49        We   have   rejected   the    proposition   that   the   Portillo

instruction lessens the state’s burden on several occasions. State

v. Hall, __ Ariz. __, __ ¶ 56, 65 P.3d 90, 103 (2003); State v.

Prince, __ Ariz. __, __ ¶ 25, 61 P.3d 450, 455 (2003); State v.

Cañez, 202 Ariz. 133, 156 ¶ 76, 42 P.3d 564, 587 (2002); State v.

Van Adams, 194 Ariz. 408, 418 ¶ 30, 984 P.2d 16, 26 (1999).              We

also have rejected the assertion that the Portillo instruction

      8
           The judge instructed the jury as follows:

      Proof beyond a reasonable doubt is proof that leaves you
      firmly convinced of the defendant’s guilt.      There are
      very few things in this world that we know with absolute
      certainty, and in criminal cases the law does not require
      proof that overcomes every doubt.     If, based on your
      consideration of the evidence, you are firmly convinced
      that the defendant is guilty of the crime or crimes
      charged, you must find him guilty.     If, on the other
      hand, you think there is a real possibility that he is
      not guilty of a crime or crimes charged, you must give
      him the benefit of the doubt and find him not guilty.


                                    22
impermissibly shifts the burden to the defendant.           State v. Finch,

202 Ariz. 410, 415 ¶ 18, 46 P.3d 421, 426 (2002).           We again reject

these challenges and reaffirm the constitutionality of the Portillo

instruction.     We find no error.

                                    B.

¶50        Lamar contends that the prosecutor engaged in misconduct

by vouching for the credibility of two of the State’s witnesses by

(1)   commenting    that    a   condition    of   both   Macchirella’s   and

Hermosillo’s plea agreement required them to testify truthfully and

(2) remarking upon the veracity of Macchirella’s statement that he

felt stupid when Lamar chastised him for using Jones’s cellular

telephone after the murder.        Lamar did not raise either of these

objections at trial.       Thus, absent a finding of fundamental error,

Lamar has waived the right to challenge the prosecutor’s conduct on

appeal.   State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627

(1991).   To rise to the level of fundamental error, an “error must

be clear, egregious, and curable only via a new trial.”              Id. at

155, 812 P.2d at 628.

¶51        A prosecutor impermissibly vouches for a witness by

placing the prestige of the government behind its witnesses or

suggesting that information not presented to the jury supports a

witness’s testimony.        State v. Dumaine, 162 Ariz. 392, 401, 783

P.2d 1184, 1193 (1989).         Lamar argues that the prosecutor placed

the   prestige     of   the     government    behind     Macchirella’s   and



                                     23
Hermosillo’s testimony by highlighting that a condition of their

plea agreements required them to testify truthfully.

¶52        We consistently have held that a prosecutor does not

engage in misconduct merely by introducing evidence of a witness’s

agreement to testify truthfully in exchange for a plea agreement.

State v. James, 141 Ariz. 141, 146, 685 P.2d 1293, 1298 (1984);

State v. McCall, 139 Ariz. 147, 159, 677 P.2d 920, 932 (1983).

Because Lamar cannot even establish misconduct, we reject his claim

that the prosecutor’s comments constitute fundamental error.

¶53        Additionally, Lamar argues that the prosecutor vouched

for Macchirella by expressing his opinion regarding Macchirella’s

statement that he felt low when Lamar yelled at him for using

Jones’s   cellular   telephone.      During    closing   arguments,   the

prosecutor stated:

      [B]oth witnesses said that when Macchirella used the
      phone [Lamar] told him that he was stupid, and
      Macchirella’s statement to that was, it made me feel
      smaller than I already feel. Well, that sounds like a
      truthful statement, and it kind of just tells you what
      kind of a person that Macchirella is.    He’s not the
      leader type. He sort of has an inferiority complex.

(Emphasis added.)

¶54        A prosecutor must not convey his personal belief about

the credibility of a witness.     See, e.g., State v. White, 115 Ariz.

199, 204, 564 P.2d 888, 893 (1977).           Although the prosecutor’s

italicized statement was inappropriate, its presence does not rise

to the level of fundamental error.      The comment does not say that



                                   24
Macchirella is generally a credible person whose entire testimony

should be accepted.         Rather, when considered in context, the

prosecutor’s comment states only that Macchirella’s description of

his reaction to Lamar’s belittling comments “sounds like a truthful

statement.” Moreover, the trial court instructed the jury that the

lawyers’ closing arguments were not evidence.              Arizona courts have

held that an instruction explaining to the jury that lawyers’

arguments     are   not     evidence    has        ameliorated    instances     of

prosecutorial vouching more egregious than occurred here.                       See

State v. King, 110 Ariz. 36, 43, 514 P.2d 1032, 1039 (1973)

(holding     prosecutor’s    expression       of    personal     opinion   as   to

defendant’s guilt and at least two avowals as to a witness’s

credibility did not prejudice the defendant, in part, because court

instructed jury that closing argument was not evidence); State v.

Taylor, 109 Ariz. 267, 274, 508 P.2d 731, 738 (1973) (holding

instruction that counsel’s argument was not evidence corrected any

prejudice due to prosecutor’s opinion as to credibility of a state

witness and defendant’s guilt); State v. Dillon, 26 Ariz. App. 220,

223, 547 P.2d 491, 494 (1976) (acknowledging prosecutor’s personal

opinion regarding a witness’s veracity improper but finding no

prejudice because of instruction that closing argument was not

evidence).     Given both the limited context of the prosecutor’s

remarks and the court’s instruction, we conclude the prosecutor’s

comment does not constitute fundamental error.



                                       25
                                      V.

¶55          In Ring v. Arizona, 536 U.S. 584, ___, 122 S. Ct. 2428,

2443   (2002)   (Ring   II),   the    United    States   Supreme   Court    held

unconstitutional that portion of A.R.S. section 13-703 (2001) that

allowed judges to find facts that led to the aggravation of a

defendant’s     sentence.       The    Court    declared    that   “[c]apital

defendants, no less than non-capital defendants . . . are entitled

to a jury determination of any fact on which the legislature

conditions an increase in their maximum punishment.”               Id. at ___,

122 S. Ct. at 2432.      The Court reversed our decision in State v.

Ring, 200 Ariz. 267, 25 P.3d 1139 (2001) (Ring I), and remanded for

further proceedings consistent with its decision.              Ring II, 536

U.S. at ___, 122 S. Ct. at 2443.            Following the Ring II decision,

we consolidated all death penalty cases in which this court had not

yet issued a direct appeal mandate, including Lamar’s, and stated

that we would order supplemental briefing on sentencing issues

affected by Ring II after issuance of our decision in State v.

Ring, __ Ariz. __, 65 P.3d 915 (2003) (Ring III).           We have directed

the parties to submit supplemental briefing in accordance with the

Ring   III    opinion   and    will   address    sentencing    issues      in   a

supplemental opinion.

                                      VI.

¶56          For the foregoing reasons, we affirm Lamar’s convictions




                                       26
for first degree murder and kidnapping.



                             ____________________________________
                             Ruth V. McGregor, Vice Chief Justice



CONCURRING:




____________________________________
Charles E. Jones, Chief Justice


____________________________________
Rebecca White Berch, Justice


____________________________________
Michael D. Ryan, Justice


____________________________________
William F. Garbarino, Judge*




     *
          The Honorable Andrew D. Hurwitz          recused himself.
Pursuant to Article VI, Section 3 of the Arizona   Constitution, the
Honorable William F. Garbarino, Judge of the       Arizona Court of
Appeals, Division One, was designated to sit in    Justice Hurwitz’s
place.

                                27
