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State v. Jones6/15/2000
a mistrial for prosecutorial misconduct only for an abuse of discretion. See State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997). Jones cites to United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998), for the proposition that a prosecutor's threat of a perjury prosecution to a defense witness constitutes witness intimidation and is improper. The facts of the present case, however, are distinguishable. In Vavages, the court agreed that "there . . . no question that the prosecutor was justified in contacting . . . [the defense witness's] counsel, cautioning him against his client's testifying falsely, and informing him of the possible consequences of perjurious testimony." Id. at 1190. The court was concerned, however, with three aspects of the prosecutor's behavior: (1) his articulation to the witness of his belief that the testimony would be false, (2) his threat to withdraw the witness's plea agreement in an unrelated case, and (3) the use of the absence of the testimony to refute the defense's alibi during closing argument. See id. at 1190-91; see also Webb v. Texas, 409 U.S. 95, 97-98, 93 S. Ct. 351, 353 (1972) (finding that the judge's threatening remarks to the sole defense witness drove him off the stand).
Here, however, the prosecution's statements did not constitute a threat. In fact, according to the record, as relied upon in Jones's own brief, the prosecutor's remarks were made to the court to explain Zachary's somewhat confusing decision to invoke the Fifth Amendment. Nothing in the record indicates that the prosecutor contacted Zachary directly, or made any personal threats to Zachary concerning his testimony. Nor did the prosecutor ever actually say that he would pursue a conviction, regardless of how Zachary testified. He simply stated his understanding of the reasons Zachary might refuse to testify. There is no per se prosecutorial misconduct when the prosecutor merely informs the witness of the possible effects of his testimony. See State v. Dumaine, 162 Ariz. 392, 400, 783 P.2d 1184, 1192 (1989). In addition, counsel represented Zachary and advised him as to whether he should testify. Thus, Zachary's decision followed consultation with and advice from his own attorney. Absent some substantial governmental action preventing the witness from testifying, a witness's decision to invoke the Fifth Amendment does not suggest prosecutorial misconduct.
Finally, Jones argues that the trial court erred by failing to sua sponte grant immunity to Zachary in exchange for his testimony. Jones failed, however, to make any objection or motion to this effect at trial. No court has held that the constitutional burden to meet the Sixth Amendment's Confrontation Clause shifts to the trial court in the absence of the defense counsel's motion or request to grant such immunity. At the very least, Jones waived the argument that the court should have granted him immunity by failing to pursue the remedy at trial. For these reasons, we reject the defendant's second point of error.
C.
Jones's third point of error concerns the life-and death-qualification of the jury. Jones argues that once the trial court denied his motion to prohibit death-qualification, the only standard that could be applied was that defined in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770 (1968). He further argues that when the court allowed the prosecution the opportunity to death-qualify, the defendant should have been entitled to life-qualify under Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222 (1992). Although the court denied the defendant's request to apply Witherspoon and Morgan on improper grounds, the court effectively met the constraints of both tests during its voir dire que
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