third-party culpability defense in Arizona

2017State v. Prion, 203 Ariz. 157, 161, ¶ 21 (2002). ¶26 The Graan and Hopper incidents were irrelevant to the third- party culpability defense because they occurred after the charged incidents. 8 STATE v. SMITH Decision of the Court See Bigger, 227 Ariz. at 209, ¶ 44 (reasoning that an incident implicating a third party that could not be connected temporally to the charged offense was properly excluded as “only a possible ground of suspicion against another”) (citation omitted).

2016We disagree. “[A] defendant may not, in the guise of a third-party culpability defense, simply throw strands of speculation on the wall and see if any of them will stick.” Machado, 226 Ariz. at 284 ¶ 16 n.2, 246 P.3d at 635 n.2 (internal quotation marks and citation omitted); accord Prion, 203 Ariz. at 161 ¶ 21, 52 P.3d at 193 (noting the trial court’s discretion to exclude such evidence if it offers “only a possible ground of suspicion against another”). *461 ¶ 166 Unlike Machado and Prion , where considerable evidence suggested that a third party committed the crimes for which the defendant

2021As the Arizona Supreme Court has noted, “[n]o Arizona case has required a third-party culpability instruction” because the “substance of the instruction [is] adequately covered” by the instructions “on the presumption of innocence and the State’s burden of proving beyond a reasonable doubt all elements of the crimes charged.” State v. Parker, 231 Ariz. 391 , 405 ¶¶ 55–56 (2013). ¶32 Because the court properly instructed the jury on the State’s burden of proof and the presumption of innocence, it did not have to give the third-party culpability instruction.

2018In concluding the trial court erred in refusing the request for an alibi defense instruction, our supreme court held “the standard burden of proof instructions do not redress the risk of burden shifting engendered by alibi evidence.” Id. at 63, ¶ 26 . ¶29 In contrast with Rodriguez, our supreme court expressly held in Parker that the standard presumption of innocence and burden of proof instructions adequately cover the substance of a third-party culpability instruction, noting “[n]o Arizona case has required a third-party culpability instruction.” 231 Ariz. at 405, ¶¶ 55-56 .

2018As pointedly noted by the Arizona Supreme Court more than once, a “’defendant may not, in the guise of a third-party culpability defense, simply throw strands of speculation on the wall and see if any of them stick.’” State v. Goudeau, 239 Ariz. 421 , 460 ¶ 165 10 STATE v. PHILLIPS Decision of the Court (2016) (quoting Machado, 226 Ariz. at 284 ¶ 16 n.2).

2016We disagree. “[A] defendant may not, in the guise of a third-party culpability defense, simply throw strands of speculation on the wall and see if any of them will stick.” Machado, 226 Ariz. at 284 ¶ 16 n.2, 246 P.3d at 635 n.2 (internal quotation marks and citation omitted); accord Prion, 203 Ariz. at 161 ¶ 21, 52 P.3d at 193 (noting the trial court’s discretion to exclude such evidence if it offers “only a possible ground of suspicion against another”). *461 ¶ 166 Unlike Machado and Prion , where considerable evidence suggested that a third party committed the crimes for which the defendant

2021Had the jurors accepted Voge’s defense that Robinson and Davis acted without his involvement, they would have found Voge not guilty because the charged offenses required proof that Voge participated in committing the crimes. ¶33 Despite Parker, Voge cites State v. Rodriguez, 192 Ariz. 58 (1998), and State v. Gibson, 202 Ariz. 321 (2002), for the proposition that the third-party culpability instruction was required.

2016And, as our supreme court has expressly recognized, “[n]o Arizona case has required a third-party culpability instruction.” Id. ¶33 Second, the trial court’s instructions to the jury regarding the presumption of innocence and the State’s burden to prove guilt beyond a reasonable doubt adequately reflected the substance of the proposed instruction.

2022See State v. Parker, 231 Ariz. 391, 405, ¶ 54 (2013) ("A trial judge must instruct the jury 'on any theory reasonably supported by the evidence.'" (quoting State v. Moody, 208 Ariz. 424, 467, ¶ 197 (2004))).

2014He claims that without the instruction, his “due process rights to a fair trial ... were violated.” ¶ 29 A trial court must instruct the jury “on any theory reasonably supported by the evidence.” State v. Moody, 208 Ariz. 424, ¶ 197 , 94 P.3d 1119, 1162 (2004).

2021Had the jurors accepted Voge’s defense that Robinson and Davis acted without his involvement, they would have found Voge not guilty because the charged offenses required proof that Voge participated in committing the crimes. ¶33 Despite Parker, Voge cites State v. Rodriguez, 192 Ariz. 58 (1998), and State v. Gibson, 202 Ariz. 321 (2002), for the proposition that the third-party culpability instruction was required.

2018Rodriguez is readily distinguishable as it involved a request for an alibi defense instruction, not a third-party culpability instruction. 192 Ariz. at 61, ¶ 15 .

2018State v. Bigger, 227 Ariz. 196 , 209 ¶ 43 (App. 2011) (citation omitted).

2017State v. Prion, 203 Ariz. 157, 161, ¶ 21 (2002). ¶26 The Graan and Hopper incidents were irrelevant to the third- party culpability defense because they occurred after the charged incidents. 8 STATE v. SMITH Decision of the Court See Bigger, 227 Ariz. at 209, ¶ 44 (reasoning that an incident implicating a third party that could not be connected temporally to the charged offense was properly excluded as “only a possible ground of suspicion against another”) (citation omitted).

2022Even assuming the evidence met the low threshold for relevance, State v. Tucker, 215 Ariz. 298, 313, ¶ 51 (2007), the court could have found its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, see State v. Dann, 205 Ariz. 557, 569, ¶¶ 35-36 (2003) (affirming the preclusion of third-party culpability evidence when its "tenuous and speculative nature . . . caused it to fail the Rule 403 test"). ¶14 In sum, Mallotte's proffered evidence casts no doubt on the verdict and stands in stark contrast to cases in which our

2022Even assuming the evidence met the low threshold for relevance, State v. Tucker, 215 Ariz. 298, 313, ¶ 51 (2007), the court could have found its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, see State v. Dann, 205 Ariz. 557, 569, ¶¶ 35-36 (2003) (affirming the preclusion of third-party culpability evidence when its "tenuous and speculative nature . . . caused it to fail the Rule 403 test"). ¶14 In sum, Mallotte's proffered evidence casts no doubt on the verdict and stands in stark contrast to cases in which our

2022See State v. Davis, 205 Ariz. 174, 179, ¶ 33 (App. 2002) ("[A] defendant's constitutional rights are not violated where, as here, evidence has been properly excluded."). ¶15 Likewise, the superior court did not abuse its discretion by denying Mallotte's request for a third-party culpability instruction, given 5 STATE v. MALLOTTE Decision of the Court that no reasonable evidence supported his defense theory.

2013Hammels v. Britten, 53 Ariz. 112, 120 , 85 P.2d 992, 995 (1939). ¶ 55 In arguing that a third-party culpability instruction was required, Parker cites State v. Gibson, 202 Ariz. 321 , 44 P.3d 1001 (2002), and State v. Prion, 203 Ariz. 157 , 52 P.3d 189 (2002).

2013Hammels v. Britten, 53 Ariz. 112, 120 , 85 P.2d 992, 995 (1939). ¶ 55 In arguing that a third-party culpability instruction was required, Parker cites State v. Gibson, 202 Ariz. 321 , 44 P.3d 1001 (2002), and State v. Prion, 203 Ariz. 157 , 52 P.3d 189 (2002).