dissenting.
I disagree with the court for two separate and independent reasons.
1. The question of rub-off is highly fact intensive and involves an element of opinion. One must either know the record or look at it in exquisite detail to get a feel for just how much rub-off there was, or was not. I believe the trial court and the court of appeals are better equipped for such inquiries than we are. We are not organized to do such work, see Rule 31.19(c)(4), Ariz.R.Crim.P., *343and when we try, our opinion, distant as it is from that of the trial judge, and even the court of appeals, may be just as plausible as that of the trial judge, but no more correct. This case only involves the application of existing law to facts. The court addresses a fact-bound claim of error rejected by the trial court and the court of appeals. When a party argues only that a correct statement of the law was erroneously applied to the facts, review should be denied, except in the most extraordinary circumstances. See Rule 31.19(c)(4), Ariz.R.Crim.P.; see also Kyles v. Whitley, — U.S.-,-, 115 S.Ct. 1555, 1576, 131 L.Ed.2d 490 (1995) (Scalia, J., dissenting). This is not such a case. As Justice Jackson said so well:
Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done.
Kyles, — U.S. at-, 115 S.Ct. at 1576 (quoting Brown v. Allen, 344 U.S. 443, 540, 73 S.Ct. 397, 427, 97 L.Ed. 469 (1953) (Jackson, J., concurring)).
2. Even if this were an appropriate ease for our consideration, and even if, after plowing through the transcripts, one were to conclude that there was rub-off here, I am of the view that the trial court’s instruction to the jury was adequate to' deal with it. The court agrees that “the disparity and the weight of the evidence, considered alone, was not of such magnitude as to preclude an effective curative instruction.” Ante, at 341 n. 1, 922 P.2d at 306 n. 1. Yet the court concludes that while the instruction cautioned the jury to keep separate each offense, it failed to instruct the jury to keep separate each defendant. Id. at 341, 922 P.2d at 306. But, as the instruction made clear, each count of the indictment not only alleged a separate offense, but one against a separate defendant. The instruction specifically informed the jury that “each count as to each defendant charges a separate and distinct offense. You must decide each count as to each defendant separately ... uninfluenced by your decision as to any other count.” Id. Because each count was addressed to only one defendant, the jury could not have considered each count separately without also considering each defendant separately.
Thus, if the court is correct that the rub-off here was such that a curative instruction would have worked, then it seems plain to me that this instruction in fact worked and thus error, if any, was harmless.
I therefore respectfully dissent.