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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              QUEINTEN DAVON MCDOWELL, Appellant.

                             No. 1 CA-CR 15-0669
                               FILED 10-13-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-005754-002
                 The Honorable Danielle J. Viola, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

The Law Office of Kyle T. Green, Tempe
By Kyle Green
Counsel for Appellant
                         STATE v. MCDOWELL
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco joined.


G O U L D, Judge:

¶1            Queinten Davon McDowell appeals his convictions and
sentences for first-degree murder and armed robbery. For the reasons that
follow, we affirm.

                            BACKGROUND1

¶2           In autumn 2011, Lee Shine and William McIntyre shared an
apartment. Unemployed, the young men spent most of their time using
drugs and playing video games. Sometime in late September or early
October 2011, McDowell and Joe Jasso approached McIntyre outside his
apartment complex and inquired where they could buy marijuana.
McIntyre invited McDowell and Jasso up to his apartment, and they
essentially moved in, spending their days playing video games and using
drugs with Shine and McIntyre.

¶3            Eventually, the young men ran out of money and drugs, and
Shine offered to sell his laptop to acquire both. Jasso volunteered that he
knew someone who would buy it and contacted the victim. Jasso and
McDowell then met with the victim and traded the laptop for marijuana.
When Jasso and McDowell returned with the drugs, Shine was upset that
he did not receive any money in the exchange. He also believed the value
of the marijuana received was far less than the value of the laptop.
Believing he had been cheated, Shine suggested robbing the victim.

¶4            A conversation followed in which the four men discussed
various ways to rob the victim. Initially, the men were “kidding,” but as
they revisited the matter over the next few days, the tone turned serious,
and Shine offered to kill the victim with a knife. Jasso rejected that idea,
believing the victim, who did not know Shine, would be suspicious if Shine


1      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).



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                           STATE v. MCDOWELL
                            Decision of the Court

approached him and would never allow Shine within stabbing distance.
After further discussion, Jasso and McDowell decided they would attack
the victim and “make it right.”

¶5            As the plans finalized, McIntyre gave Jasso and McDowell a
gun, and McDowell volunteered to kill the victim. On October 22, 2011,
Jasso contacted the victim and arranged a meeting under the pretense of
purchasing marijuana. Shine left to visit his grandparents and McIntyre
waited at the apartment while Jasso and McDowell met with the victim.

¶6             When Jasso and McDowell returned a short time later, Jasso
was covered in blood. “[E]xcited,” Jasso and McDowell told McIntyre that
they initially met with the victim inside the victim’s car, but McDowell then
exited the backseat on the driver’s side and shot the victim through the
open driver’s side window. Jasso, still inside the vehicle at the time of the
shooting, grabbed all the drugs he could find before jumping out of the
rolling car. After relaying the events of the murder, McDowell returned the
gun to McIntyre, but asked to keep the expended shell casing as a “trophy.”

¶7             Later that evening, police were conducting a routine patrol
when they received a call from dispatch regarding a report of a suspicious
vehicle. As the officers responded to the scene, they saw the reported
vehicle in the front yard of a private residence, positioned next to a tree with
its lights on and the engine running. One officer looked through the open
driver’s side window and observed the victim seated in the driver’s seat,
but “slumped over,” with his head resting on the passenger front seat. The
victim’s eyes were open and he was “slightly convulsing.” From his
position on the passenger’s side, another officer saw that the victim had
sustained a gunshot wound to his head. The officers immediately
requested emergency assistance. Notwithstanding the efforts of medical
personnel, however, the victim died from the gunshot wound.

¶8             After medical personnel transported the victim, additional
officers arrived at the crime scene. They obtained a search warrant for the
vehicle and seized the victim’s cellular phone, which had fallen off his
person when medical personnel extracted him from the car.

¶9           A detective later analyzed the cellular phone’s call and
message history and noted numerous contacts from a single number during
the hours preceding the homicide. All contact from that number stopped,
however, after the shooting. The detective traced the phone number to
Jasso’s mother and then traveled to Colorado to interview Jasso. During
the interview, Jasso inculpated himself, McDowell, McIntyre, and Shine in



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                          STATE v. MCDOWELL
                           Decision of the Court

the victim’s murder. The detective subsequently interviewed McDowell,
who initially denied any involvement, but later admitted his participation
when confronted with Jasso’s statements.

¶10           When police questioned Shine, he admitted that the men had
planned to kill the victim before he left for his grandparents’ home. Shine
explained that Jasso and McDowell offered to rob and “kill” the victim as
retribution for the laptop exchange, and he accepted their offer.

¶11          McDowell was charged with one count of first-degree murder
and one count of armed robbery. The State also alleged numerous
aggravating circumstances.

¶12            At trial, McIntyre testified that he, Shine, Jasso, and McDowell
conspired to commit robbery, but also discussed killing the victim. Indeed,
just before leaving the apartment to meet the victim, McDowell said “Why
don’t we just kill him.” Jasso testified that he and McDowell discussed
killing the victim to avoid any possible retaliation, and McDowell agreed to
act as the shooter.

¶13          McDowell confessed to shooting the victim, but claimed it
was a “snap” decision with no premeditation.           Nonetheless, he
acknowledged that he told the other men “we need to kill this dude”
because he feared the victim may retaliate for the robbery, and further
admitted that he volunteered to kill the victim.

¶14            The jury convicted McDowell as charged, concluding he
committed both premediated and felony murder as well as armed robbery.
The jury also found two aggravating factors: (1) the offense involved the
presence of an accomplice, and (2) the offense was committed for pecuniary
gain. The trial court sentenced McDowell to natural life without the
possibility of release for first-degree murder and a concurrent, presumptive
term of ten and one-half years’ imprisonment for armed robbery.
McDowell timely appealed.

                               DISCUSSION

¶15            At trial, Jasso testified that he, McDowell, Shine, and McIntyre
discussed murdering the victim as a means of avoiding any possible
retaliation for the robbery. He also testified that he and McDowell privately
discussed who would act as the shooter and McDowell volunteered.

¶16         Following the State’s direct examination of Jasso, defense
counsel moved for a mistrial, arguing Jasso’s trial testimony was contrary


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                           STATE v. MCDOWELL
                            Decision of the Court

to statements he had made during police and defense interviews, and the
State had failed to timely disclose this change in story/impeachment
material after the prosecutor learned the details of Jasso’s account during a
pretrial interview. The trial court denied the motion to dismiss, but granted
defense counsel additional time to interview Jasso before conducting cross-
examination.

¶17          Later, the trial court denied defense counsel’s renewed
motion for mistrial and motion to strike Jasso’s testimony, concluding “that
the evidence does not call the government’s case into doubt; that there was
no willful—or direct or indirect failure of the state—to fail to disclose
evidence.” Specifically, the court found that the factual basis for Jasso’s plea
agreement provided defense counsel with sufficient notice of his
subsequent trial testimony. The court also concluded that McDowell had
not been prejudiced by any alleged lack of disclosure because defense
counsel was provided additional time to interview Jasso before conducting
cross-examination. The court also found that defense counsel’s claim that
McDowell would have entered a plea agreement had Jasso’s intended trial
testimony been disclosed was entirely speculative because the State had
never extended McDowell a plea offer.

   I.      Brady Violation

¶18            McDowell argues the trial court erred by denying his motion
for mistrial predicated on a Brady violation.

¶19             We review the denial of a motion for mistrial for an abuse of
discretion. State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000). Because a
“declaration of a mistrial is the most dramatic remedy for trial error,” it
should be granted “only when it appears that justice will be thwarted unless
the jury is discharged and a new trial granted.” State v. Adamson, 136 Ariz.
250, 262 (1983).

¶20           Under Brady v. Maryland, 373 U.S. 83 (1963), the government
is required to disclose all “evidence in its possession that is both favorable
to the accused and material to guilt or punishment.” Pennsylvania v. Ritchie,
480 U.S. 39, 57 (1987). Because “the reliability of a given witness may well
be determinative of guilt or innocence,” the government must disclose all
evidence affecting the witness’s credibility. Giglio v. United States, 405 U.S.
150, 154 (1972) (internal quotation omitted).

¶21         “The test for a Brady violation is whether the undisclosed
material would have created a reasonable doubt had it been presented to
the jury.” State v. Jessen, 130 Ariz. 1, 4 (1981). “When previously


                                       5
                          STATE v. MCDOWELL
                           Decision of the Court

undisclosed exculpatory information is revealed at the trial and is
presented to the jury, there is no Brady violation.” Id.

¶22           Applying these principles here, there was no Brady violation.
Even assuming that the State failed to timely disclose impeachment
material regarding Jasso, it is undisputed that the information was
presented to the jury. Indeed, after the prosecutor directly examined Jasso,
and defense counsel raised his objection, the trial court afforded defense
counsel additional time to interview Jasso before recalling him for cross-
examination. During the subsequent cross-examination, defense counsel2
thoroughly impeached Jasso with his prior statements, eliciting admissions
that Jasso lied to police, lied to defense counsel, lied to his mother, and
simply lied “incessantly” when he previously claimed that the men had
only planned a robbery and McDowell, unexpectedly, “got mad and just
shot” the victim. Indeed, Jasso acknowledged that he had “hustled” the
police and defense counsel throughout the case. Therefore, the trial court
did not abuse its discretion by denying McDowell’s motion for mistrial
predicated on a Brady violation.

    II.    Rule 15 Disclosure Violation

¶23           McDowell contends the trial court erred by denying his
motion to strike Jasso’s testimony as a sanction. Specifically, McDowell
argues the prosecutor was required to disclose that Jasso intended to testify
that the men conspired to kill the victim. According to McDowell, this
testimony was contrary to Jasso’s police and defense interview statements,
and therefore constituted “new or different” information that the State was
required to supplement pursuant to Rule 15.

¶24             On November 21, 2013, Jasso participated in a free talk with
police. Jasso initially explained that the men only planned a “grab and run”
to steal drugs from the victim, but later acknowledged the men had also
discussed the possibility of killing the victim. When pressed on that point,
Jasso claimed there was no definite plan to kill the victim, it was simply a
possibility if the robbery did not go well. He acknowledged, however, that
McDowell stated they “should kill [the victim] anyway,” even if the robbery
was successful.




2     Shine and McDowell were tried together. Shine’s attorney cross-
examined McDowell first and elicited most of the admissions.


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                           STATE v. MCDOWELL
                            Decision of the Court

¶25           On June 19, 2014, Jasso entered a plea agreement, pleading
guilty to second-degree murder. The factual basis supporting the plea
states:

       On or before October 22, 2011, Defendants Joe Anthony Jasso,
       Queinten McDowell, William McIntyre, and Lee Shine
       conspired together to lure [the victim] to a meeting, at which
       he would be shot and most likely killed. The four of them
       conspired in the planning. Defendant McIntyre provided the
       handgun. Defendant Jasso called the victim and arranged a
       meeting. On October 22, 2011, Defendants Jasso and
       McDowell met with the victim . . ., and Defendant McDowell
       shot the victim, causing his death. Defendants Jasso and
       McDowell met back up with Defendants Shine and McIntyre
       after the murder. Defendant McDowell returned the gun to
       Defendant McIntyre.

¶26             The purpose of the disclosure rules is “to give full notification
of each side’s case-in-chief so as to avoid unnecessary delay and surprise at
trial.” State v. Roque, 213 Ariz. 193, 207, ¶ 32 (2006). We review a trial court’s
“assessment of the adequacy of disclosure for an abuse of discretion.” Id.
at 205, ¶ 21. We likewise review a trial court’s ruling on sanctions for
untimely disclosure for an abuse of discretion. Id.

¶27           As set forth in Rule 15.1(b)(1), the State is required to disclose
any witnesses the prosecutor intends to call during the State’s case-in-chief,
“together with their relevant written or recorded statements.”
Additionally, pursuant to Rule 15.1(b)(8), the State is required to disclose
all information within its possession “which tends to mitigate or negate the
defendant’s guilt as to the offense charged, or which would tend to reduce
the defendant’s punishment.” After providing its initial disclosure to the
defense, the State bears a continuing duty to disclose “whenever new or
different information subject to disclosure is discovered.” Ariz. R. Crim. P.
15.6.

¶28             In presenting the motion to strike Jasso’s testimony, defense
counsel argued “[n]owhere in any of the interviews nor in the factual basis
does [Jasso] ever give such exacting details about a plan to commit murder
as opposed to robbery.” The trial court acknowledged that Jasso’s trial
testimony contained some “details not previously stated” in his factual
basis or police and defense counsel interviews, but found the substance of
Jasso’s trial testimony was consistent with the written statement he adopted




                                        7
                          STATE v. MCDOWELL
                           Decision of the Court

as part of his plea agreement, which had been timely disclosed to defense
counsel.

¶29           Consistent with the trial court’s finding, the record reflects
that the material substance of Jasso’s trial testimony was timely disclosed.
The factual basis for Jasso’s plea stated that the men “conspired to lure” the
victim to a meeting where he “would be shot and most likely killed.” Jasso
also told police that the men had discussed killing the victim, as a
contingency for a failed robbery, and McDowell stated that they should kill
the victim even if the robbery went well. Therefore, because the State timely
disclosed these statements encompassing the substance of Jasso’s trial
testimony, the trial court did not abuse its discretion by finding the State
complied with the disclosure rules. See State v. Guerrero, 119 Ariz. 273, 276
(App. 1978) (“The criminal discovery rules do not require the state to
provide a word-by-word preview to defense counsel of the testimony of the
state’s witnesses.”) (internal quotation omitted).

¶30           Moreover, even assuming that the State failed to comply with
Rule 15.6’s mandate to supplement disclosure with new or different
information, the trial court acted well within its discretion by denying
defense counsel’s motion to strike. Pursuant to Rule 15.7, the trial court
“shall impose any sanction it finds appropriate” when a party fails to
comply with the disclosure rules, “unless the court finds that the failure to
comply was harmless.” Here, the trial court granted defense counsel
additional time to interview Jasso and prepare for cross-examination. The
court could have reasonably concluded that allowing defense counsel
additional time to interview and prepare ameliorated any possible
prejudice from an untimely disclosure.

¶31            The trial court also could have reasonably concluded that any
untimely disclosure was harmless. At trial, the State introduced Shine’s
police statement acknowledging that Jasso and McDowell offered to kill the
victim and he accepted their offer. In addition, McIntyre testified that the
men discussed killing the victim and McDowell advocated for that plan.
Equally important, McDowell admitted that he told the others “we need to
kill this dude” and then volunteered to shoot the victim. Given this
overwhelming evidence that the men in general, and McDowell in
particular, planned to kill the victim, any untimely disclosure was harmless
and the trial court did not abuse its discretion by denying McDowell’s
motion to strike.




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                          STATE v. MCDOWELL
                           Decision of the Court

   III.    Prosecutorial Misconduct

¶32            McDowell argues the trial court erred by denying his motion
for mistrial predicated on a claim of prosecutorial misconduct. Specifically,
McDowell contends the prosecutor engaged in misconduct by failing to
disclose “impeachment evidence” and impugning defense counsel.

¶33            During closing argument, the prosecutor stated: “Now, we
have in trials what people refer to as smoke and mirrors or red herrings,
but basically things that are thrown into a trial to distract the jury and make
them focus on—.” At that point, defense counsel asked to approach and
argued that the prosecutor had committed an ethical violation by “talking
about red herrings and whatnot.” The trial court overruled the objection.
Later, the prosecutor again referenced “smoke and mirrors . . . distracting
the jurors.” Defense counsel again objected and the trial court overruled
the objection. At the close of the prosecutor’s argument, defense counsel
moved for a mistrial, claiming the prosecutor implied that defense counsel
had been deceitful. The trial court denied the motion.

¶34            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.” Roque, 213 Ariz. at 228, ¶ 152. “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.” Id.

¶35           Although prosecutors have wide latitude in closing
argument, “[j]ury argument that impugns the integrity or honesty of
opposing counsel is [] improper.” State v. Hughes, 193 Ariz. 72, 86, ¶ 59
(1998); see State v. Hill, 174 Ariz. 313, 322 (1993). Criticism of defense
theories and tactics, on the other hand, “is a proper subject of closing
argument.” State v. Ramos, 235 Ariz. 230, 238, ¶ 25 (App. 2014) (internal
quotations omitted).

¶36           With respect to McDowell’s first claim, the prosecutor did not
engage in misconduct by failing to supplement the State’s disclosures
regarding Jasso. Supra, ¶¶ 23-29. As to McDowell’s second claim that the
prosecutor’s comments suggested defense counsel was deceitful and
attempting to mislead the jury, we conclude the comments were not
personal attacks on defense counsel’s integrity, but permissible critiques of
defense tactics. Therefore, the trial court did not abuse its discretion by
denying McDowell’s motion for mistrial.




                                      9
                 STATE v. MCDOWELL
                  Decision of the Court

                     CONCLUSION

¶37   McDowell’s convictions and sentences are affirmed.




                 AMY M. WOOD • Clerk of the Court
                 FILED: AA




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