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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 DERRICK SHAWN BARNETT, Appellant.

                             No. 1 CA-CR 18-0763
                               FILED 3-19-2020


           Appeal from the Superior Court in Coconino County
                         No. S0300CR201700678
                  The Honorable Dan R. Slayton, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
                            STATE v. BARNETT
                            Decision of the Court



                      MEMORANDUM DECISION

Acting Presiding Judge David D. Weinzweig delivered the decision of the
Court, in which Chief Judge Peter B. Swann and Judge David B. Gass joined.


W E I N Z W E I G, Judge:

¶1             Derrick Shawn Barnett appeals his convictions and sentences
for two counts of first-degree murder, three counts of misconduct involving
weapons, one count of first-degree burglary, one count of theft, one count
of cruelty to animals and one count of theft of means of transportation. We
affirm on all counts.

             FACTS AND PROCEDURAL BACKGROUND1

¶2            Barnett moved to Arizona from Colorado in April 2017 to live
with his father in a camper trailer outside of Williams. He was on felony
probation in Colorado where he had an outstanding warrant for his arrest.
Just weeks later, Barnett left the trailer after a physical confrontation with
his father and moved into the woods.

       A.     The Murders

¶3            Barnett built a campfire near the home of a married couple,
Michael and Nora. On the evening of May 1, Barnett stormed the couple’s
house. Michael was home alone; Nora was at work. Barnett seized
Michael’s handgun and rifle. He then killed Michael, firing three gunshots
into his head and neck. When Nora returned home, Barnett chased her
down, cornered her in the bathroom and killed her. He fired a gunshot into
her head at close range. He also shot and killed the couple’s dog.

¶4           The next morning, police discovered the lifeless bodies of
Nora and Michael in different spots, surrounded by empty shell casings.
Nora was found inside the house. Michael was found outside behind a
woodpile. Several guns were missing. Police later found Barnett’s
campsite, plus Nora’s abandoned cell phone.



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


                                      2
                           STATE v. BARNETT
                           Decision of the Court

      B.     Flight, Arrest and Recorded Jail Call

¶5            Barnett stole the couple’s white Jeep and fled back to his
Colorado hometown, living at his friend’s house for a few days. He arrived
in the white Jeep, but quickly abandoned the vehicle at a campsite near his
friend’s house. He bought a used car for $2,000 in cash and more
ammunition.

¶6           Barnett left his friend’s house without warning, leaving two
backpacks behind, which contained Nora’s electronic cigarette and
Michael’s handgun. The handgun had been used at the murder scene.

¶7            Meanwhile, two campers discovered the white Jeep, which
had no license plate, and called police. Barnett’s DNA was found on the
Jeep’s steering wheel and gear shift. A water bottle inside the vehicle also
contained his DNA.

¶8            Barnett encountered his uncle and half-brother on May 5. He
said he was in trouble and would be living in the woods “for a while.” He
also mentioned he had lots of cash and “was probably going to go to jail for
a long time.” The half-brother noticed a handgun and rifle in Barnett’s
possession, and he quickly informed Barnett’s father that Barnett had
returned. The father then contacted the Coconino County Sheriff’s Office
to report Barnett’s potential connection to the murders and current
whereabouts.

¶9            Later that day, Colorado police spotted Barnett’s used car. A
high-speed chase ensued, which ended when Barnett rolled the car. Police
found Michael’s rifle and handgun inside the car with Barnett’s
fingerprints. The State’s firearm expert testified that both weapons were
fired at the murder scene.

¶10          Barnett was arrested. He called his mother from jail. The call
was recorded. Barnett’s mother asked about the murders and said Barnett
was a suspect in the investigation. Barnett expressed no surprise, stating
that he was a “goner” and would “never get out.” When his mother said
that Arizona is “a capital murder state,” Barnett said, “I’m ready to accept
my responsibility [and] ready to die.”

      C.     Trial and Conviction

¶11          A grand jury indicted Barnett for two counts of first-degree
murder, three counts of misconduct involving weapons, and one count each



                                     3
                            STATE v. BARNETT
                            Decision of the Court

of first-degree burglary, theft, cruelty to animals and theft of means of
transportation.

¶12          Following a ten-day trial, the jury convicted Barnett on all
charges. The superior court imposed two consecutive natural-life sentences
for the murders, plus several consecutive terms totaling 87 years for
burglary, theft, weapons misconduct and theft of transportation. Barnett
timely appealed.

                               DISCUSSION

       A.     Barnett’s Motion to Continue

¶13           Barnett first argues the superior court erred by denying his
motion to continue the trial. Barnett moved for a continuance on July 13,
2018, around five weeks before trial was set to begin on August 21, claiming
a continuance was required for two reasons: his criminal defense
investigator had “recently left” that position and he had not hired a
replacement; and his ballistics expert needed more time to review the
State’s recently-disclosed crime scene reports and raw data. The State
opposed any continuance, arguing that Barnett’s investigator had been
gone for months and the State had disclosed all scientific reports in January
2018, including reports on DNA, latent prints, firearms and autopsies. The
State further explained that its most recent disclosure was limited to a
“handful of pages” that measured the distance between items of evidence
at the crime scene, the locations of which had been disclosed to defense
counsel “for several months.”

¶14           We review the denial of a continuance for an abuse of
discretion and only disturb the trial court’s decision if the defendant
demonstrates prejudice from the denial. State v. Forde, 233 Ariz. 543, 555, ¶
18 (2014). A trial may be continued “only on a showing that extraordinary
circumstances exist and that delay is indispensable to the interests of
justice.” Ariz. R. Crim. P. 8.5(b).

¶15            We find no abuse of discretion on this record for several
reasons. First, the superior court announced the August 2018 trial date in
November 2017, and Barnett confirmed the date on several occasions in
court filings and hearings. Second, Barnett’s criminal investigator left his
position several months before the July 13 motion to continue. Moreover,
Barnett still had five weeks before trial began. Third, the State disclosed its
substantive expert reports in January 2018, over seven months before trial,
and its recent supplement was insubstantial.



                                      4
                             STATE v. BARNETT
                             Decision of the Court

       B.     Barnett’s Motion for Mistrial

¶16            Barnett next argues the superior court improperly denied his
motion for mistrial after the jury heard inadmissible testimony about his
possible drug use and past violence. Before trial, Barnett moved to preclude
the introduction of evidence that he had “a recipe or list of ingredients
purportedly to make methamphetamine” in his backpack, and any
“statements of witnesses speculating that defendant was ‘high’ or using
illicit drugs.” The State did not object and the court granted the motion.

¶17           Barnett claims the State twice violated the superior court’s
order. First, a detective was asked to describe the father’s trailer and
answered that it was “fairly messy and kind of disarray” and “[t]here were
some chemicals and other items inside.” A juror later asked, “what kind of
chemicals [were] inside the trailer?” The court and parties agreed not to
respond. The court offered to strike the initial reference to “chemicals,”
despite ruling the detective had not violated its prior order. Barnett
declined the offer.

¶18            Second, the prosecutor asked Barnett’s father about a
conversation he had with Barnett over the “probation issue.” Father
responded that Barnett “was just trying to get away from the life he had
[and] the escalation of violence with his girlfriend,” adding that he
suspected “they were both shooting up drugs.” Barnett objected. The
superior court held a conference in chambers and offered to provide a
curative instruction. Barnett declined. With the court’s consent, however,
father testified on cross-examination that he never witnessed Barnett using
drugs at the trailer.

¶19            Barnett moved for a mistrial based on the references to
chemicals, violence and drug use. The superior court denied the motion.
We review for an abuse of discretion, recognizing that the superior 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 (2000).

¶20           A mistrial may be declared if the court determines that a
witness’s remarks “call[ed] attention to information that the jurors would
not be justified in considering for their verdict” and the jurors “were
influenced by the remarks.” Id. And because 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. Dann, 205 Ariz. 557, 570, ¶ 43 (2003).




                                        5
                             STATE v. BARNETT
                             Decision of the Court

¶21            We find no abuse of discretion. The detective’s ambiguous
and passing reference to “chemicals” did not improperly convey
information to the jury about Barnett’s methamphetamine use or
possession. See State v. Lamar, 205 Ariz. 431, 439, ¶ 40 (2003). Barnett’s
counsel also declined a curative instruction. See State v. Herrera, 203 Ariz.
131, 134, ¶ 6 (App. 2002) (holding that trial court did not abuse its discretion
by denying a mistrial based in part on defendant’s declination of a curative
instruction). Similarly, father’s reference to possible drug use and violence
was vague and unlikely to improperly influence the jury. And here again,
Barnett’s counsel declined a curative instruction. Moreover, father
confirmed on cross-examination that he never saw Barnett using drugs
during his visit to Arizona, which ameliorated any potential prejudice. The
superior court acted reasonably. Id.

       C.     DNA Evidence

¶22          Barnett contends the superior court erred by allowing the
State’s DNA expert to present inconclusive DNA evidence found on bolt
cutters and candy wrappers inside the victim’s home. Barnett argues the
evidence was unduly prejudicial under Rule 403 because the DNA results
did not conclusively “match” Barnett’s profile. Unfair prejudice is an
“undue tendency to suggest decision on an improper basis, such as
emotion, sympathy[] or horror.” State v. Mott, 187 Ariz. 536, 545 (1997).

¶23            We review the admission of evidence for an abuse of
discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006). We find none.
The DNA evidence was relevant here because the analyst could not exclude
Barnett as a contributor, which increased the likelihood of his presence at
the victims’ house. Beyond that, the DNA expert qualified and limited the
value of the evidence as “inconclusive,” recognizing the “low level” of
DNA, and never implied an exact “match.” See State v. Escalante-Orozco, 241
Ariz. 254, 274, ¶¶ 49-50 (2017), abrogated on other grounds by State v. Escalante,
245 Ariz. 135 (2018).

       D.     Barnett’s Hearsay Objections

¶24           Barnett next argues the superior court erred by allowing a
detective to provide hearsay evidence about the alibis of two witnesses,
including Barnett’s friend and a carpenter who visited the victim’s home.

¶25           We review for abuse of discretion and find none. Forde, 233
Ariz. at 564, ¶ 77. The testimony was not hearsay because the statements
were not offered for the truth of the matter asserted—that these men were
at work or celebrating when Nora and Michael were murdered. The


                                        6
                           STATE v. BARNETT
                           Decision of the Court

statements were instead elicited and offered to explain the detective’s
investigative decisions and conduct, responding to Barnett’s argument that
law enforcement rushed to a flawed conclusion and never explored
alternative theories and suspects. See State v. Dunlap, 187 Ariz. 441, 457
(1996) (“[B]ecause the defendant elicited [a statement] to show the
inadequacy of the investigation, and did not offer it for the truth of the
matter asserted, it was not hearsay.”).

       E.    Juror Contact and Misconduct

¶26           And last, Barnett challenges the court’s requirement that
defense counsel provide good cause in an affidavit before communicating
with jurors, which Barnett claims was unconstitutional as a prior restraint
on the jury’s free speech. But the court did not restrict the jurors from
communicating with anyone; it lifted the admonishment and explained that
“[j]urors remain free to speak with whomever they wish.” The ruling was
permissible under State v. Paxton, 145 Ariz. 396 (App. 1985).

¶27           Barnett argues the court erred by refusing to investigate juror
misconduct after Barnett’s mother claimed to overhear jurors talking about
Barnett’s mental state, yet admitted she was unsure “who said what.” The
court rejected the claim as speculative and unpersuasive. The record shows
no abuse of discretion.

                              CONCLUSION

¶28          We affirm Barnett’s convictions and sentences.




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




                                        7
