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State v. Jones6/15/2000
9:30 she's at the hospital with her husband and he's dead. I can guarantee you that her life is totally destroyed. She had nothing to look forward to, nothing.
You may think sympathy for someone else but in terms of that woman, she wants justice and that's your duty to as jurors. Id.
Yet, even in light of these emotional remarks, we found any error was cured because the trial judge admonished the jury to ignore statements invoking sympathy. In contrast, the prosecutor in this case made a single remark: "I ask that you find him guilty on behalf of those people and their families and the people of the State of Arizona." (R.T. 6/25/98, at 194.) The prosecutor did not attempt to inflame the jury or make an emotional plea to ease the suffering of the poor families. Those statements do not rise to the level of misconduct. Thus, the trial court properly denied the motion for a mistrial. See also State v. Bible, 175 Ariz. 549, 603, 858 P.2d 1152, 1206 (1993) (rejecting the defendant's claim that statements concerning victim's rights in the prosecutor's closing arguments did not constitute fundamental error because, coupled with the weight of the evidence against the defendant, he was not denied a fair trial). For these reasons, we reject Jones's fifth point of error.
F.
Jones next asserts that the trial court erred when it failed to grant his motion to transfer venue because of pretrial publicity. For venue issues, we are concerned with the prejudicial effect of pretrial publicity, rather than merely the amount of publicity. See State v. Greenawalt, 128 Ariz. 150, 162, 624 P.2d 828, 840 (1981). We have adopted a two-step inquiry to determine the effect of pretrial publicity: (1) did the publicity create a presumption of prejudice, and (2) has the defendant shown actual prejudice? See State v. Murray, 184 Ariz. 9, 26, 906 P.2d 542, 559 (1995). If "a defendant can show pretrial publicity so outrageous that it promises to turn the trial into a mockery of justice or a mere formality, prejudice will be presumed without examining the publicity's actual influence on the jury." State v. Bible, 175 Ariz. 549, 563, 858 P.2d 1152, 1166 (1993). The defendant's burden of proof is "extremely heavy," and juror exposure to information concerning the trial does not raise a presumption that the defendant was denied a fair trial. See id. at 564, 858 P.2d at 1167; see also Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554, 96 S. Ct. 2791, 2800 (1976) (stating that courts rarely presume prejudice due to outrageous pretrial publicity). We evaluate the totality of the circumstances from the entire record to determine if the publicity was so great as to result in an unfair trial. See Bible, 175 Ariz. at 565, 858 P.2d at 1168. Here, the facts do not require reversal.
By the time Jones presented his motion to change venue, more than 850 print or television articles addressed the murders and subsequent investigation. Although the trial court recognized the large amount of coverage, it noted that that fact alone was insufficient to require a venue change. Only a few of the articles mentioned Jones directly. Furthermore, the majority of the statements concerned largely factual contentions. See Bible, 175 Ariz. at 564, 858 P.2d at 1167 ("'Although the news coverage was extensive, it largely was factual in nature, summarizing the charges against the defendants and the alleged conduct that underlay the indictment.'" (quoting United States v. Anguilo, 897 F.2d 1169, 1181 (1st Cir. 1990))). The trial judge also took the precautionary steps necessary to choose an impartial jury. Thus, no presumption of prejudice arose.
Additionally, Jones has failed to prove any actual prejudice
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