State v. Ketchner

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DARRELL BRYANT KETCHNER, Appellant.

No. 1 CA-CR 22-0458
FILED 5-2-2024

Appeal from the Superior Court in Mohave County
No. S8015CR200900715
The Honorable Rick A. Williams, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Kevin M. Morrow
Counsel for Appellee

The Brewer Law Office, Show Low
By Benjamin M. Brewer
Counsel for Appellant
 STATE v. KETCHNER
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MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Maria Elena Cruz and Judge Cynthia J. Bailey joined.

M c M U R D I E, Judge:

¶1 Darrell Bryant Ketchner appeals from his convictions and
sentences for first-degree murder and first-degree burglary. We affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 Ketchner and Jackie2 met in 1997. When they started their
relationship, Jackie had two daughters, Abby and Katie, and Ketchner had
three daughters. Ketchner and Jackie had three children together over the
next ten years.

¶3 In January 2008, Jackie obtained a protective order against
Ketchner after he kneed her in the jaw and threatened to slit her throat.
Jackie later requested dismissal of the protective order because it was “to[o]
difficult with 3 children[.]” The court dismissed the order.

¶4 In January 2009, Jackie obtained another protective order
against Ketchner because he threw a milk jug at her and broke Katie’s
phone. The State charged Ketchner with domestic violence by criminal
damage and disorderly conduct. Jackie again requested that the protective
order be dismissed so Ketchner could see their children. The court
dismissed the order.

¶5 In March 2009, Jackie petitioned for another protective order
against Ketchner. In the petition, Jackie claimed that Ketchner threatened
to kill her and threw rocks through a car in her driveway. The car belonged
to Katie’s boyfriend, Nick. The State charged Ketchner with criminal

1 We view the facts in the light most favorable to sustaining the
judgment. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

2 We use pseudonyms to protect the victims’ identities.

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damage. The court granted the protective order. Ketchner was prohibited
from contacting Jackie, Katie, and Abby and could not enter Jackie’s house.

¶6 Ketchner threatened to kill the family if the criminal charges
filed against him were not dismissed. Additionally, Ketchner “threatened
to throw [Nick] in a ditch” if Nick did not dismiss his charge. On July 2,
Ketchner approached a police officer to find out about a police report on
the criminal charges filed against him. Ketchner said he believed the
charges would be dismissed.

¶7 On July 4, 2009, Jackie and the family celebrated her
daughter’s birthday. Ketchner was not invited. Jackie, Abby, Katie, Nick,
and Jackie and Ketchner’s two youngest children returned to Jackie’s house
after watching fireworks. Jackie and Abby sat at the kitchen table, and Katie
went into a bedroom with her younger siblings and Nick. A few minutes
later, as Nick walked down the hallway, Ketchner entered the house
through a side door that led to the kitchen. Ketchner grabbed Jackie by the
hair and began striking her. Nick fled the house to get help. After Katie
heard her mom and sister screaming, she and her younger siblings escaped
the house through a window.

¶8 Eventually, Ketchner and Jackie were in the driveway in front
of the house when a neighbor saw Ketchner swinging at Jackie. Jackie was
screaming, “[H]e’s killing me, he’s stabbing me[.]” Ketchner ran into the
house, came back outside, walked to where Jackie was on the ground, and
shot her in the head. Then, Ketchner disappeared.

¶9 The police and emergency personnel arrived shortly after the
neighbors called 9-1-1. They found Abby lying in a pool of blood in a
bedroom. Abby suffered multiple stab wounds, including in her chest and
back, and she did not survive her injuries. Jackie survived her injuries but
does not remember the incident. The next morning, police found Ketchner
on a golf course with a gun and a bag containing sex toys, zip ties, clothing,
and a chisel.

¶10 A grand jury indicted Ketchner on first-degree murder,
attempted first-degree murder, three counts of aggravated assault,
first-degree burglary, and misconduct involving weapons. Ketchner pled
guilty to the misconduct involving weapons charge and began serving a
fifteen-year sentence. A jury convicted Ketchner on the six remaining
counts.

¶11 The Arizona Supreme Court reversed Ketchner’s first-degree
murder and first-degree burglary convictions and sentences and remanded

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for a new trial. State v. Ketchner, 236 Ariz. 262, 267, ¶ 27 (2014). The court
affirmed Ketchner’s convictions and sentences for attempted first-degree
murder and three counts of aggravated assault. Id.

¶12 The superior court presided over a second jury trial in 2022
on the first-degree murder and first-degree burglary charges. At the retrial,
Ketchner conceded that he killed Abby and shot Jackie. But he claimed that
Jackie had invited him over, attacked him, and then he acted in self-defense.
The jury rejected the self-defense claim by finding Ketchner guilty on both
counts. The superior court sentenced Ketchner to natural life for the murder
conviction and a consecutive sentence of 21 years for the burglary
conviction. The court ordered the sentences to run consecutively to those
the Arizona Supreme Court affirmed. See Ketchner, 236 Ariz. at 267, ¶ 27.

¶13 Ketchner appealed. We have jurisdiction under A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1), (2).

DISCUSSION

A. The Superior Court Did Not Abuse Its Discretion by Denying
Ketchner’s Motions to Inspect the Crime Scene.

¶14 In 2019, Ketchner moved for permission to enter Jackie’s
house “for the limited purpose of taking measurements of the inside of the
residence at the heart of the events in this case.” Ketchner asserted that
during the first trial, the State presented a house diagram with inaccurate
interior dimensions. The superior court denied the motion, finding that
Ketchner failed to establish a basis for the inspection. In denying the
motion, the court weighed the value of a house inspection almost ten years
after the incident against the intrusion to Jackie. The court found that
photos and a video walkthrough of the house taken the night of the incident
diminished the need for new measurements.

¶15 Before the second trial in 2022, Ketchner again moved to
inspect the crime scene. The State requested that the court affirm its prior
order. Ketchner asserted that the defense team needed to enter the house to
gather evidence supporting his self-defense claim. Ketchner wanted to “get
a sense of the spatial distances and makeup of the relevant rooms” to
impeach Nick’s testimony about his sightline from where he stood when he
saw Ketchner enter the house and attack Jackie. Ketchner asserted the
defense team could minimize the intrusion on Jackie by using a noninvasive
laser scanner to generate a three-dimensional image of the house’s interior.

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¶16 After briefing and argument, the superior court again denied
Ketchner’s motion to inspect the crime scene and affirmed its prior order.
The court found that the inspection would be a significant intrusion for
Jackie and that Jackie’s objection was reasonable. And the court found that
Ketchner failed to prove how denying the motion would prevent him from
developing his self-defense claim or challenging witness testimony. The
court found that the video walkthrough of the house and the many
photographs taken the night of the event were sufficient for Ketchner to
raise the self-defense claim and impeach the State’s witnesses.

¶17 On appeal, Ketchner argues the superior court denied him his
constitutional right to a complete defense by not authorizing the defense
team to inspect the property. We review the court’s discovery rulings for
abuse of discretion. State v. Garza, 216 Ariz. 56, 65, ¶ 35 (2007); Blazek v.
Superior Court, 177 Ariz. 535, 537 (App. 1994) (“A trial court has broad
discretion over discovery matters, and this court will not disturb that
discretion absent a showing of abuse.”). The superior court “abuses its
discretion when it misapplies the law or predicates its decision upon
irrational bases.” State v. Fields, 196 Ariz. 580, 582, ¶ 4 (App. 1999) (quoting
Blazek, 177 Ariz. at 537). We interpret procedural rules and review
constitutional questions de novo. See State ex rel. Thomas v. Newell, 221 Ariz.
112, 114, ¶ 7 (App. 2009); R.S. v. Thompson (Vanders II), 251 Ariz. 111, 116,
¶ 10 (2021).

¶18 A defendant does not have a “general constitutional right to
discovery.” Draper v. Gentry, 255 Ariz. 417, 422, ¶ 16 (2023) (quoting Vanders
II, 251 Ariz. at 117, ¶ 16); Weatherford v. Bursey, 429 U.S. 545, 559 (1977)
(“There is no general constitutional right to discovery in a criminal case[.]”).
And a crime victim has the right “[t]o be treated with fairness, respect, and
dignity” and to refuse a defendant’s discovery request. Ariz. Const. art. 2,
§ 2.1(A)(1), (5). But “the defendant has a due process right, under the
federal and Arizona constitutions, to present a defense” and has a “right to
effective cross-examination of a witness at trial.” State ex rel. Romley v.
Superior Court, 172 Ariz. 232, 236 (App. 1992). Harmonizing these
competing interests presents a mixed question of law and fact that we
review de novo. See State v. Moore, 222 Ariz. 1, 7, ¶ 17 (2009).

¶19 Ketchner argues that preventing the defense from viewing the
crime scene infringed on his due process rights. But the federal due process
right to present a complete defense does not guarantee the right to inspect
a crime scene. See, e.g., United States v. Bullcoming, 22 F.4th 883, 890 (10th
Cir. 2022) (The court found no support under the U.S. Constitution that the
defendant’s due process rights were infringed because he was not allowed

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access to the victim’s property.). Jurisdictions that guarantee crime scene
inspections to defendants have done so under their state constitutions. Id.
at 889; see also State v. Tetu, 386 P.3d 844, 857 (Haw. 2016) (“[T]he due
process clause of the Hawai‘i Constitution provides a defendant with the
right to access the crime scene in order to secure the promises that a fair
trial affords.”). Ketchner does not offer authority suggesting that Arizona’s
constitution guarantees a defendant the absolute right to inspect a crime
scene. And Arizona has not granted defendants broader discovery rights
than what is provided by the U.S. Constitution. See Romley, 172 Ariz. at 236
(Arizona’s due process clause is “congruent” with the federal due process
clauses.).

¶20 Generally, a defendant must show that a crime scene
inspection is necessary to protect his or her constitutional rights. See, e.g.,
Henshaw v. Commonwealth, 451 S.E.2d 415, 419 (Va. App. 1994) (Virginia’s
due process clause gives the defendant a right to inspect the crime scene,
“provided that the defendant makes a showing that a substantial basis
exists for claiming that the proposed inspection and observation will enable
the defendant to obtain evidence relevant and material to his defense or to
be able to meaningfully defend himself.”); People v. Nicholas, 599 N.Y.S.2d
779, 782 (Sup. Ct. 1993) (“Unless defense counsel can make a prima facie
showing how his proposed inspection and observation would be relevant
and material to his defense, the defendant’s right to prepare his defense
cannot outweigh the victim’s constitutional right to privacy.”); Howard v.
State, 156 A.3d 981, 999 (Md. Spec. App. 2017) (“[A]ssuming without
deciding that the Due Process Clause guarantees a criminal defendant the
right to obtain such evidence before trial, the right nevertheless is
predicated on a showing of need.”); but see People ex rel. E.G., 368 P.3d 946,
954, ¶ 30 (Colo. 2016) (“[N]either a criminal defendant, nor anyone else
. . . has a constitutional right to force a third party to open her private home
for an investigation.”).

¶21 In Arizona, a court may order parties to make information or
material available to the defendant if the court finds that “the defendant has
a substantial need for the material or information” to prepare the case and
“the defendant cannot obtain the substantial equivalent by other means
without undue hardship.” Ariz. R. Crim. P. 15.1(g)(1). If the production
would infringe on a victim’s constitutional rights, the defendant must show
that the “substantial need” for the evidence is “one of constitutional
dimension.” Vanders II, 251 Ariz. at 116, ¶ 12 (quoting State v. Connor, 215
Ariz. 553, 561, ¶ 22 (App. 2007)). If the defendant makes this showing, the
court must balance the defendant’s and the victim’s rights and interests. Id.
at 116-17, ¶ 12.

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¶22 Ketchner failed to establish a “substantial need” of
“constitutional dimension” to inspect Jackie’s home, and the superior court
reasonably found that Ketchner had access to substantially equivalent
information. See Vanders II, 251 Ariz. at 116, ¶ 12; Ariz. R. Crim. P. 15.1(g)(1).
The superior court found that Ketchner could present his defense
sufficiently with the evidence already available, specifically through the
extensive photos and the video walkthrough of the house. The record
supports the superior court’s findings.

¶23 Ketchner argues that the superior court failed to identify
“how this inspection of the residence would be a significant intrusion on
the victim.” Considering the nature of the crimes and the heightened
privacy protections for one’s home, the superior court did not err by finding
that a home inspection would infringe on Jackie’s victim rights, regardless
of the defense’s offered concessions to limit the inspection’s scope. See Ariz.
Const. art. 2, § 2.1(A)(1) (A crime victim has the right “[t]o be treated with
fairness, respect, and dignity.”); State v. Bolt, 142 Ariz. 260, 264-65 (1984)
(recognizing Arizona’s “fundamental belief in the sanctity and privacy of
the home”).

¶24 Ketchner argues that “the credibility of witness statements
hinge[d] on the accuracy of the diagram of the residence.” Ketchner asserts
he could not effectively impeach Nick’s testimony that he saw Ketchner in
the kitchen without accurate house measurements. But Ketchner
impeached Nick’s testimony by presenting a hallway photo where Nick
testified he was standing and past statements Nick made to law
enforcement. Because the record contained images showing the hallway
leading to the kitchen, the defense did not need house measurements to
support the theory that Nick did not see Ketchner enter the house.

¶25 Ketchner argues that “when a defendant’s due process right
to present a complete defense (and ultimately, to a fair trial) and a victim’s
state constitutional or statutory rights directly conflict, the due process right
prevails.” Vanders II, 251 Ariz. at 118, ¶ 20. But there was no conflict here
because Ketchner failed to establish that a house inspection was
substantially necessary to preserve his constitutional right to a complete
defense. See id. at 116-17, ¶ 12. Thus, the superior court did not abuse its
discretion by precluding Ketchner from inspecting Jackie’s house.

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B. The Superior Court Did Not Abuse Its Discretion by Admitting
Other Act Evidence.

¶26 Before Ketchner’s first trial, the State moved to admit
evidence of the three domestic violence incidents leading to protective
orders, Ketchner’s threats, and Ketchner’s conversation with a police officer
about the pending charges that he thought would be dismissed. The State
argued the evidence was relevant to establish Ketchner’s motive, intent,
plan, and absence of mistake and to explain Katie’s and Nick’s reactions
during the July 4 incident. The superior court reviewed the police reports,
the protective orders, and interviews with Jackie, Katie, and Nick. The court
found that the State proved the domestic violence incidents and threats by
clear and convincing evidence. It also found the evidence was relevant to
prove Ketchner’s motive and intent and explain Katie’s and Nick’s
perceptions and actions during the events. Finally, the court found that the
evidence’s probative value was not substantially outweighed by unfair
prejudice.

¶27 Before the second trial, the State moved to admit the same
other acts previously admitted in the first trial: the domestic violence
incidents leading to the protective orders, Ketchner’s threats, and
Ketchner’s interaction with the police officer about the charges against him.
Ketchner made no specific objection to the evidence but argued generally
that the State was admitting the evidence only to prove Ketchner’s character
and that it was irrelevant to proving who killed Abby or how she was killed.

¶28 The superior court granted the State’s motion. It found the
evidence was admissible under Arizona Rule of Evidence 404(b). The court
determined that the State disclosed the evidence before Ketchner’s first
trial, which was already “subjected to meaningful adversarial testing” at
the trial, and no additional evidentiary hearing was necessary to determine
admissibility.

¶29 The court also authorized a limiting instruction. The superior
court instructed the jurors only to consider the other acts if they found the
State proved them by clear and convincing evidence. The court also
instructed the jurors that they could not consider the other acts to determine
Ketchner’s character and could consider the evidence only “to establish the
defendant’s motive, opportunity, intent, preparation, plan, knowledge,
absence of mistake or accident.”

¶30 Ketchner argues that the superior court abused its discretion
by admitting the other act evidence because it failed to find that the State

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proved the acts by clear and convincing evidence and did not find that the
probative value of the acts substantially outweighed any unfair prejudice.
We review the court’s admission of the evidence for abuse of discretion.
State v. Van Adams, 194 Ariz. 408, 415, ¶ 20 (1999).

¶31 Generally, evidence of other crimes, wrongs, or acts is not
admissible to prove someone’s character. Ariz. R. Evid. 404(b)(1). But the
evidence may be relevant and admissible to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Ariz. R. Evid. 404(b)(2). Before admitting the evidence, the
superior court must find that “(1) the state has proved by clear and
convincing evidence that the defendant committed the alleged prior act;
(2) the state is offering the evidence for a proper purpose; and (3) its
probative value is not outweighed by the potential for unfair prejudice.”
State v. Vigil, 195 Ariz. 189, 191, ¶ 14 (App. 1999). Also, the court must
provide a limiting instruction upon a party’s request. Ariz. R. Evid. 105.

¶32 In the second order, the court found that the evidence was
admissible under Arizona Rule of Evidence 404(b). Still, it did not restate
its prior findings that the State proved the acts by clear and convincing
evidence, the acts were relevant to Ketchner’s motive and intent and Katie’s
and Nick’s perceptions, and unfair prejudice did not substantially
outweigh the acts’ probative value. But the court found that the evidence
was already “subjected to meaningful adversarial testing” and reviewed for
admissibility at the first trial. See State v. Morris, 215 Ariz. 324, 341, ¶ 77
(2007) (When reviewing for abuse of discretion, we will uphold a decision
if any reasonable evidence in the record supports it.). When Ketchner
opposed the State’s evidence, he failed to argue meaningfully that changes
in circumstances rendered the evidence previously admitted in the first trial
now inadmissible in the second trial. Thus, the superior court did not abuse
its discretion by failing to make new 404(b) findings.

¶33 Ketchner makes no substantive admissibility challenges other
than the superior court’s lack of findings under Arizona Rule of Evidence

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404(b). Because the superior court made the requisite findings before the
first trial, we find no abuse of discretion. 3

C. The Superior Court Did Not Abuse Its Discretion by Precluding
Other Act Evidence.

¶34 Ketchner moved to admit evidence from Jackie’s health
history and certain prior interactions with law enforcement. Ketchner
anticipated testifying about 14 alleged acts between 2007 and 2009: 1) Jackie
persuaded Ketchner’s business partners to confront and threaten him;
2) Officers were dispatched to Jackie’s home, found her holding a gun, and
she later was taken to a mental health facility; 3) Jackie was diagnosed with
post-partum depression and taking several prescription medications;
4) Ketchner visited Jackie at the mental health facility, and Jackie was
seeking to avoid a schizophrenia diagnosis; 5) Jackie smashed Ketchner’s
car windows; 6) Jackie called the police on an ex-boyfriend; 7) Jackie
attacked Ketchner while he was sick in bed; 8) Jackie reported false
information to law enforcement; 9) Jackie responded coldly to Ketchner’s
health problem; 10) Jackie lost her temper with Katie; 11) Jackie lied to Katie
and “set up” the ”milk incident” to implicate Ketchner; 12) Jackie’s
ex-boyfriend left a note on her door; 13) Jackie continued a romantic
relationship with her ex-boyfriend despite his prior conviction; 14) Jackie
lied to law enforcement about interacting with Ketchner. Ketchner also
alleged that Jackie had filed around 20 police reports, but none were about
him.

¶35 Ketchner asserted that the evidence supported his mental
state on July 4, 2009. He claimed that he knew Jackie had a history of violent
behavior and thus reasonably believed he needed to act in self-defense.

3 We acknowledge that the superior court never made 404(b) findings
about Ketchner’s discussion with the police officer about his pending
charges. Before the first trial, the superior court found that the testimony
may be admissible, but the State had not presented evidence of the
interaction. The court requested that the State make the officer available for
testimony so the court could make findings. The State concedes that this
did not occur before the officer testified during the first trial but notes that
Ketchner failed to object. Ketchner also did not object when the officer
testified at the second trial. Ketchner does not challenge the sufficiency of
the 404(b) findings from the first trial, but argues the superior court failed
to incorporate its ruling from the first trial. Ketchner has thus waived the
404(b) issue about the officer’s testimony.

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Ketchner also argued the evidence proved Jackie’s motive and impeached
her character.

¶36 The court precluded testimony about Jackie smashing
Ketchner’s car windows, finding that the risk of undue prejudice
outweighed any probative value or relevance, especially because there was
no allegation Jackie was convicted of criminal damage. For similar reasons,
the court precluded testimony about officers contacting Jackie after it was
reported she had a gun. The court noted that other testimony at trial would
reveal that Jackie owned a gun. The court also precluded testimony about
Jackie’s admission to the mental health facility or Jackie’s mental health
records because there was no showing she was a danger to herself or others,
a post-partum depression diagnosis and prescriptions were not relevant to
Ketchner’s self-defense claim, and the hospitalization was remote in time
as it occurred a year and a half before the incident. Also, because there was
no evidence that Jackie had a schizophrenia diagnosis or that Jackie was
malingering, Ketchner could not testify about visiting Jackie at the mental
health facility based on unfair prejudice. The court noted that Ketchner
could testify about his recollection of his relationship with Jackie and “how
[Jackie] acted from time to time.”

¶37 The court precluded evidence that Jackie called the police on
her ex-boyfriend as irrelevant and remote in time but found that Ketchner
could testify or ask questions about Jackie’s relationship with her
ex-boyfriend. The court precluded testimony about Jackie’s ex-boyfriend
leaving a note on her door because of relevance and authentication issues.
The court also precluded evidence that Jackie reported a crime that did not
occur as irrelevant and remote in time. The court also precluded testimony
that Jackie lost her temper with Katie, as there was no record of the incident,
and the court found no relevance “other than to try and paint [Jackie] in
very broad brush strokes that she loses her temper.” The court also
precluded testimony about Jackie filing around 20 police reports, reasoning
that Jackie contacting law enforcement was irrelevant to Ketchner’s
self-defense claim.

¶38 For the allegation that Jackie lied to law enforcement about
having contact with Ketchner, the court allowed testimony for a limited
purpose. Ketchner could introduce the evidence to establish that Jackie was
still in contact with Ketchner despite the protective order. But the defense
could not introduce the evidence to establish that Jackie lied to law
enforcement because there was no evidence she was prosecuted for a false
information charge.

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¶39 The court allowed questioning about the allegation that Jackie
attacked Ketchner while he was sick in bed. The court also allowed
testimony about Jackie responding coldly to Ketchner’s health problems.
The court allowed “some inquiry” into the milk incident. The court noted
there was no evidence that Ketchner’s business partners confronted and
threatened him, but Ketchner could testify about whether he believed he
was being targeted.

¶40 Ketchner argues the superior court erred by precluding some
of his proffered evidence. We review the superior court’s rulings on the
admissibility of evidence for abuse of discretion. State v. Emery, 141 Ariz.
549, 551 (1984); see also State v. Togar, 248 Ariz. 567, 574, ¶ 23 (App. 2020)
(The superior court has broad discretion to balance the probative value of
the evidence against its potential for unfair prejudice.).

¶41 Generally, acts of violence are not admissible to prove a
victim’s violent character because “a victim’s character is not an essential
element of self-defense.” See State v. Fish, 222 Ariz. 109, 119, ¶ 29 (App.
2009); see also Ariz. R. Evid. 404(b)(1), 405(b). But such evidence may be
admissible for other purposes. See Ariz. R. Evid. 404(b)(2). If a defendant
raises a self-defense claim, the victim’s violent acts “may be admissible to
show the impact on the defendant’s state of mind at the time of the alleged
crime and the reasonableness of his actions.” State v. Gentry, 247 Ariz. 381,
385-86, ¶ 16 (App. 2019). A court may admit such evidence in some cases to
show that the defendant knew the victim had a violent disposition, and
“this may have affected the defendant’s thinking about the need to respond
with deadly physical force.” Connor, 215 Ariz. at 559, ¶ 14.

¶42 Still, the defendant must show that the evidence is relevant
and that its probative value is not substantially outweighed by unfair
prejudice. See Gentry, 247 Ariz. at 386, ¶ 17; Ariz. R. Evid. 401, 402, 403. The
court may consider the evidence’s strength, the similarity between the prior
act and the event at issue, the need for the evidence, whether alternative
evidence would be effective, the prior act’s timing, and the “the degree to
which the evidence would likely engender hostility in the jury.” State v.
Zaid, 249 Ariz. 154, 158, ¶ 13 (App. 2020).

¶43 Ketchner argues that the fact that he knew Jackie accessed her
gun, was suspected of smashing his car windows, and had post-partum
depression supported his argument that he knew Jackie was “aggressive,
violent, and uncontrolled by atypical mental health.” He claims that Jackie’s
excessive filing of police reports supports that Jackie was paranoid, erratic,
and experiencing post-partum depression. And the evidence that Jackie

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once lost her temper with Katie “demonstrated [Jackie’s] ability to become
angry at a moment[’]s notice, which was known by [Ketchner].”

¶44 The superior court did not abuse its discretion by excluding
testimony that Jackie smashed Ketchner’s car windows. Even if the
testimony supported that Ketchner knew Jackie was violent, the superior
court was within its discretion to weigh considerations that the allegation
was unsubstantiated and remote in time against the evidence’s probative
value. See Zaid, 249 Ariz. at 158, ¶ 13 (The court may consider the strength
of the evidence and the prior act’s timing.). Similarly, the court was within
its discretion to weigh the fact that there was no report Jackie lost her
temper with Katie against the evidence’s minimal probative value. See id.

¶45 The superior court was also within its discretion to find that
Jackie’s mental health history was irrelevant to Ketchner’s self-defense
claim. Ketchner cites Vanders II to support his argument that the superior
court should have admitted the mental health evidence. In Vanders II, our
supreme court found there was a reasonable possibility that mental health
records stemming from a violent incident and a possible mental health
diagnosis were relevant to the defendant’s justification defense. 251 Ariz. at
121, ¶¶ 33-35. Thus, the court affirmed the superior court’s ruling, ordering
an in-camera review of the records. Id. at 122, ¶ 38. But the court did not
conclude the mental health evidence was relevant to the defendant’s
justification defense. See id. at 121, ¶¶ 34-35. Rather, the court explained that
“[u]pon in-camera review, the trial court will determine whether these
records” corroborate the defendant’s claim the victim was previously
violent, whether the victim had a diagnosis supporting her character for
violence, and whether the defendant feared for his life. Id. at 121, ¶ 35.

¶46 Here, on the other hand, the superior court conducted an
in-camera review of Jackie’s mental health records and found her mental
health history was not relevant to Ketchner’s self-defense claim. The
superior court reasonably found that Jackie’s experiences with post-partum
depression, anxiety, or suicidal ideations did not support that she was
violent or dangerous. The superior court also had the discretion to consider
that Jackie’s hospitalization was remote in time. See Zaid, 249 Ariz. at 158,
¶ 13. We find no abuse of discretion.

¶47 Nor was Ketchner prejudiced by the exclusion of the mental
health evidence because he was allowed to testify about how Jackie acted
during their relationship. And the jury heard evidence that Jackie owned a
gun and that Ketchner knew she had a gun.

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¶48 Ketchner argues that the evidence that Jackie called the police
on her ex-boyfriend and that her ex-boyfriend left a note on Jackie’s door
supported Ketchner’s argument that he believed the ex-boyfriend was in
the house during the incident and would shoot him. The court did not
abuse its discretion by finding that the evidence was irrelevant to
Ketchner’s self-defense claim. The court also allowed Ketchner to testify
and ask questions about Jackie’s relationship with her ex-boyfriend. See
Zaid, 249 Ariz. at 158, ¶ 13 (The court may consider the availability of other
evidence.). At trial, Ketchner testified that Jackie’s ex-boyfriend was
dangerous, he bought Jackie a gun because of her ex-boyfriend, and he
knew the ex-boyfriend was recently in town. Any error was harmless. See
id. at 160, ¶ 22.

¶49 Ketchner also argues that Jackie lied to the police about
having contact with Ketchner, explaining how Jackie “would lie to law
enforcement to protect [Ketchner].” But Ketchner fails to explain how the
evidence was relevant to his claim that he reasonably feared for his life and
needed to act in self-defense. See Gentry, 247 Ariz. at 385-86, ¶ 16; Connor,
215 Ariz. at 559, ¶ 14. The superior court did not abuse its discretion.

D. The Superior Court Did Not Abuse Its Discretion by Denying the
Motion for a New Trial.

¶50 After the verdicts, Ketchner moved for a new trial and argued
that the superior court erred by 1) allowing the medical examiner to testify
about a blood pattern and 2) failing to dismiss a juror. On appeal, Ketchner
challenges the denial of the motion.

¶51 We review the superior court’s denial of a new trial for abuse
of discretion. State v. Hoskins, 199 Ariz. 127, 142, ¶ 52 (2000). The superior
court may grant a new trial if, among other grounds, the State committed
misconduct, a juror committed misconduct, or the defendant did not
receive a fair and impartial trial. Ariz. R. Crim. P. 24.1(c)(2), (3), (5).

1. The Superior Court Did Not Abuse Its Discretion by
Admitting the Medical Examiner’s Opinion.

¶52 At trial, the State called the medical examiner to testify about
the autopsy report she created for Abby. The examiner testified she found
no defensive wounds on Abby’s arms. On cross-examination, defense
counsel asked about Abby’s hands. He asked whether Abby’s palm was red
because of blood stains. The examiner confirmed that any blood on Abby’s
hands would have been washed off for the autopsy.

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¶53 On re-direct, the State asked the examiner about photos of
Abby’s hands taken at the hospital. The State asked whether the blood
pattern on Abby’s hand was significant. Counsel objected, arguing the
testimony was “outside the scope of cross.” The court allowed the witness
to answer the question but authorized the defense to re-cross the expert if
necessary. The medical examiner testified that when she reviewed the
blood pattern on Abby’s hand, it differed from a “sparing” or “void.” She
explained that in her line of work, she generally looked for sparing or void
patterns to determine whether the decedent was holding a weapon.

¶54 On re-cross, the defense questioned the medical examiner
about her blood pattern expertise. The examiner confirmed she was “an
expert with the body and what’s found on the body.” The examiner also
explained that she would not have put the opinion about the blood pattern
in her report unless she found a void or sparing, a blood pattern consistent
with holding a weapon.

¶55 Defense counsel moved to preclude the testimony and
requested a mistrial, arguing he was never notified that the medical
examiner would testify about the blood pattern on Abby’s hand, and the
examiner was not qualified to testify on the issue. Counsel argued that he
had interviewed the medical examiner twice before the trial, and her
opinion about the blood pattern had never come up. But counsel conceded
he anticipated another State expert, Lieutenant Meislish, would testify on
the issue, and he was “completely prepared to cross-examine him.”
Counsel also conceded the State notified him it had an expert to refute the
defense expert’s testimony about the blood pattern on Abby’s hand. The
court found no basis to strike the testimony and denied the mistrial motion.

¶56 Later, Ketchner called its blood pattern analyst, John Oliveira.
Oliveira testified that based on his experiments, it “could not be ruled out”
that Abby held a gun during the incident. In rebuttal, the State called
Meislish a bloodstain pattern analyst. Meislish disagreed with Oliveira’s
opinion and found that the blood pattern on Abby’s hand was “more
consistent with a transfer pattern.” Meislish concluded that Abby’s “hand
came in contact with something that was bloodstained, causing that blood
to be transferred onto her hand.”

¶57 In the new trial motion, Ketchner argued the State failed to
disclose the medical examiner’s opinion, and by the time she testified about
it at trial, “it was too late to employ the aid of an expert” to investigate the
opinion. Ketchner asserted the State’s disclosure failure denied him the
opportunity to cross-examine the medical examiner on an issue that “went

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to the crux of Ketchner’s self-defense claims.” The superior court denied the
motion, finding that the medical examiner’s testimony tracked her
expertise, and the State did not commit misconduct by presenting the
testimony.

¶58 On appeal, Ketchner argues the superior court abused its
discretion by denying the new trial motion because the State failed to
disclose the medical examiner’s opinion, which denied Ketchner a fair trial.
The superior court has broad discretion over expert testimony admissions
and discovery rulings. See State v. Alvarado, 121 Ariz. 485, 488-89 (1979);
State v. Rojas, 177 Ariz. 454, 459 (App. 1993). And “even if there is a failure
to remedy a discovery violation, a subsequent conviction will not be
reversed on that account unless the defendant can demonstrate prejudice
from the violation.” State v. Tucker, 157 Ariz. 433, 439 (1988).

¶59 If the State intends to call an expert at trial, it must provide
the defendant “the expert’s name, address, and qualifications” and “any
report prepared by the expert and the results of any completed physical
examination, scientific test, experiment, or comparison conducted by the
expert.” Ariz. R. Crim. P. 15.1(b)(4)(A), (B). If the expert testifies at trial
without a written report, the State must provide “a summary of the general
subject matter and opinions on which the expert is expected to testify.”
Ariz. R. Crim. P. 15.1(b)(4)(C).

¶60 Ketchner did not object to the admission of the autopsy
report, and he never asserted that the State had failed to disclose it. And the
examiner testified that the blood pattern opinion would have only been in
her report if she found the presence of a void or sparing. Ketchner
interviewed the medical examiner twice and could have asked her about
the blood on Abby’s hands before her testimony. Thus, the superior court
did not abuse its discretion by finding that the State did not have to disclose
specifically the expert’s opinion on the blood pattern. See generally Ariz. R.
Crim. P. 15.1(b)(4).

¶61 The record also supports that the examiner’s blood-pattern
opinion was within her expertise. See Ariz. R. Evid. 702. As a forensic
pathologist, the examiner testified that she had significant training and
experience identifying blood patterns on decedents’ bodies. And it was
routine for her to look for void or sparing patterns during autopsies. The
superior court did not abuse its discretion by finding no misconduct and
that the testimony was admissible.

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¶62 Nor was Ketchner prejudiced by the admission. See Tucker,
157 Ariz. at 439. We reject Ketchner’s argument that allowing the testimony
deprived him of a fair trial because he could not effectively cross-examine
the medical examiner on the issue. Counsel conceded he interviewed the
medical examiner twice before trial, he was aware the State had an expert
to refute the defense expert’s blood pattern opinion, and he was prepared
to cross-examine Meislish on the same issue. We find no abuse of discretion.

2. The Superior Court Did Not Abuse Its Discretion by
Allowing Juror 14 to Serve.

¶63 During the trial, one of Ketchner’s daughters recognized Juror
14. The court questioned Juror 14 and asked whether he knew Ketchner’s
daughter. Juror 14 responded that the daughter was an
“acquaintance-type” “[y]ears ago,” “[m]aybe through school.” He asserted
that nothing about his contact with the daughter would cause him to favor
one side, and he could still be fair and impartial. Neither the State nor
Ketchner questioned the juror. The court noted that the prospective jurors
were not asked whether they knew this daughter because she was not on
the list of potential witnesses.

¶64 Ketchner moved to strike Juror 14. Counsel explained he did
not “know how this person who went [to] school with one of the daughters
doesn’t know about the case,” and he was concerned that the juror was “not
giving [them] the whole story.” The superior court denied the motion.

¶65 In the new trial motion, Ketchner argued that Juror 14 was
dishonest and biased in reaching the verdicts. Ketchner attached a sworn
declaration from an investigator who interviewed the daughter. The
investigator declared that the daughter stated she was friends with Juror
14’s late wife, the daughter and Juror 14 were friends on social media, Juror
14 knew Ketchner’s family, and Juror 14 attended a social event hosted by
the daughter about eight years before trial. Ketchner asserted that Juror 14
concealed that he knew Ketchner “despite being asked to disclose that
information at the start of the trial.”

¶66 The superior court denied the motion, finding no evidence
that Juror 14 was dishonest. It found that nothing in the declaration
suggested that Juror 14 knew Ketchner, knew about the case, or was lying.
And Juror 14’s statement that he knew the daughter “years ago” aligned
with the declaration. Finally, there was no “indication that Juror 14 was
lying or that he somehow knew Mr. Ketchner and was hiding that fact.”

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¶67 Ketchner argues the superior court abused its discretion by
refusing to strike the juror and denying the new trial motion because Juror
14 was untruthful, and the juror’s bias denied Ketchner his right to a fair
and impartial jury. We review the “court’s refusal to strike a juror for abuse
of discretion.” State v. Acuna Valenzuela, 245 Ariz. 197, 209, ¶ 21 (2018).

¶68 When assessing whether a juror is fair and impartial, the
superior court is in the best position to assess the juror’s demeanor. See
Acuna Valenzuela, 245 Ariz. at 209, ¶ 24. Thus, we “defer to the trial judge’s
perceptions of the juror and question only whether the judge’s findings are
supported by the record.” State v. Allen, 253 Ariz. 306, 331, ¶ 47 (2022).

¶69 Ketchner urges this court to presume bias because Juror 14
did not previously inform the court about his past contact with Ketchner’s
daughter. But as the superior court pointed out, Juror 14 was not asked
about the daughter during voir dire because she was not on the witness list.
The superior court reasonably found that none of the evidence in the new
trial motion suggested that Juror 14 knew Ketchner. Ketchner challenges
Juror 14’s credibility, arguing, “[i]t would be difficult to imagine that a juror
who knew the Ketchner family at the time of the incident in 2009 did not
know anything about the criminal proceedings.” But the superior court was
within its discretion to find that Juror 14 was telling the truth during voir
dire. See Allen, 253 Ariz. at 331, ¶ 47.

¶70 Nor will we presume that Juror 14 could not render a fair and
impartial verdict because he was acquainted with Ketchner’s daughter
years ago. See Acuna Valenzuela, 245 Ariz. at 210, ¶ 32 (“[A] juror who knows
some of the people involved in a case is not automatically barred from
serving on a jury.”). The juror attested he could be fair and impartial, and
the court believed him. The superior court was within its discretion to find
that Juror 14 could be fair and impartial despite his past contact with
Ketchner’s daughter. See Allen, 253 Ariz. at 331, ¶ 47.

¶71 Because the record supports the superior court’s findings that
Juror 14 was truthful and impartial, it did not abuse its discretion by
denying the motion to strike Juror 14 and the new trial motion.

E. Ketchner Fails to Establish that the Superior Court Committed
Misconduct Requiring Reversal.

¶72 During sentencing, the superior court referenced Ketchner’s
trial statements. The court commented on a claim Ketchner made and said,
“And when I heard that . . . . I thought to myself what a rotten thing to say
by just an absolutely rotten human being.” Before the court announced

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Ketchner’s sentence, it said, “And it’s time to send Mr. Ketchner back to his
cage I guess.” Ketchner did not object or raise the issue in his post-trial
motions. On appeal, Ketchner argues that the court’s statements during
sentencing “demonstrate[] clear bias against [him]” that requires reversal
and a new trial.

¶73 The right to a fair trial includes the right “to have the trial
presided over by a judge who is completely impartial and free of bias or
prejudice.” State v. Hill, 174 Ariz. 313, 322 (1993). “A party challenging a
trial judge’s impartiality must overcome a strong presumption that trial
judges are ‘free of bias and prejudice.’” State v. Cropper, 205 Ariz. 181, 185,
¶ 22 (2003) (quoting State v. Medina, 193 Ariz. 504, 510, ¶ 11 (1999)). To
overcome this burden, the party asserting bias must “set forth a specific
basis for the claim of partiality” and prove by a preponderance of the
evidence that the judge has “a hostile feeling or spirit of ill-will, or undue
friendship or favoritism, towards one of the litigants.” Id. (quoting Medina,
193 Ariz. at 510, ¶ 11, and In re Guardianship of Styer, 24 Ariz. App. 148, 151
(1975)).

¶74 Ketchner lists court rulings that he claims show the court’s
“feelings for Ketchner during the entire case.” Ketchner points to instances
he raised in his 2017 motion for a change of judge. For example, during the
first trial, he claims the court “allowed a plethora of other act evidence to
be admitted” and “permitted the State to present blind expert testimony
regarding profiling of domestic violence victims and abusers.” See Ketchner,
236 Ariz. at 265, 266-67, ¶¶ 19, 25 (reversing first-degree murder and
burglary convictions because of inadmissible profile evidence). But
“[j]udicial rulings alone do not support a finding of bias or partiality
without a showing of an extrajudicial source of bias or deep-seated
favoritism.” State v. Macias, 249 Ariz. 335, 342, ¶ 22 (App. 2020); see also Hill,
174 Ariz. at 324 (An erroneous ruling does not necessarily show a judge’s
bias toward a litigant.).

¶75 Ketchner also cites court rulings on motions to appoint new
counsel in 2015 and 2016. Ketchner claims that when handling the counsel
issues, the court did not acknowledge his pro se ex parte motions, failed to
ask about conflicts, and admonished Ketchner “that he needed to get along
with counsel.” Ketchner asserts the court should “consider these additional
factors as support for the argument that these statements at sentencing were
something other than a mistake or slip of the tongue.”

¶76 But Ketchner did not claim that the court’s rulings amounted
to reversible error on appeal. See State v. Curry, 187 Ariz. 623, 631 (App.

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1996) (“[W]e fail to understand how adverse rulings to which a party
assigns no error can nevertheless amount to bias.”). Ketchner fails to
explain how the judge displayed “deep-seated and unequivocal
antagonism.” See Liteky v. United States, 510 U.S. 540, 556 (1994). Ketchner
fails to overcome the strong presumption that the court was unbiased.

F. We Lack Jurisdiction to Review the Superior Court’s Denial of
Ketchner’s Motion to Vacate the Judgment.

¶77 After appealing his convictions and sentences, Ketchner
moved to vacate the first-degree murder conviction and sentence based on
newly discovered material facts.4 See Ariz. R. Crim. P. (“Rule”) 24.2(a)(2).
Ketchner attached statements from the defense investigator that detailed
his post-trial interviews with jurors and listed what the jurors had told him
about the jury deliberations. Ketchner alleged the jurors were confused
about the verdict forms, and two jurors did not recall discussing the
felony-murder verdict. Ketchner asserted the verdict forms did not
represent the jury’s true verdict. This court stayed the appeal pending the
superior court’s ruling on the motion.

¶78 The superior court denied the motion. It found that the trial
evidence, specifically the jury instructions, juror questions and answers,
and the verdict forms, “establish[ed] that the jury was not confused.” The
jury unanimously found Ketchner guilty of first-degree felony murder, and
the jury also found Ketchner guilty of the lesser-included offense of
second-degree murder from the State’s premeditation theory. Ketchner was
lawfully sentenced for first-degree felony murder, and the court found no
error. Ketchner did not file another notice of appeal from the denial of the
motion.

¶79 Ketchner challenges the superior court’s denial of his motion
to vacate the judgment. The State asserts this court lacks jurisdiction to
review the judgment because Ketchner did not separately appeal it . We
agree.

¶80 “[A] ruling on a Rule 24.2 motion is a separately appealable
order.” State v. Wynn, 114 Ariz. 561, 563 (App. 1977). Ketchner had to file a
notice of appeal “no later than 20 days after entry of the decision.” Ariz. R.

4 Ketchner moved for a new trial in the alternative, but the motion was
not timely because it was filed two months after the jury verdicts. See Ariz.
R. Crim. P. 24.1(b).

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Crim. P. 24.2(d). Because Ketchner did not appeal the court’s order, we lack
jurisdiction to review it. See Wynn, 114 Ariz. at 563.

¶81 Though the case addressed a different rule, we acknowledge
that the Arizona Supreme Court recently vacated a decision holding that a
defendant had “to separately appeal the denial of his motion for new trial.”
State v. Sanchez, CR 23-0270-PR, 2024 WL 938080, at *1 (Ariz. Mar. 5, 2024).
The court reasoned that when “a defendant timely files a notice of appeal
from the ‘judgment of guilt and sentence,’ that notice logically endows the
court of appeals with jurisdiction to address all pre-judgment rulings or
orders necessarily affecting that judgment.” Id. (Emphasis added.) But
unlike a motion for a new trial, which must be filed no later than ten days
after the verdict, see Ariz. R. Crim. P. 24.1(b), a Rule 24.2 motion is always a
post-judgment motion. See Ariz. R. Crim. P. 24.2(b); see also State v. Hickle,
129 Ariz. 330, 332 (1981) (The Rule 24.2 motion filed before judgment and
sentencing was premature.). Thus, we see no reason to depart from State v.
Wynn. See 114 Ariz. at 563.

¶82 Ketchner argues that he did not waive his right to appeal the
ruling on the motion because the superior court did not inform him of the
right. Rule 26.11(a) and (b) require the court to inform the defendant of the
right to appeal the judgment and sentence. The superior court provided
Ketchner with written notice of his right to appeal after sentencing, which
he signed. This notice advised Ketchner in part:

If you want to appeal from a judgment of conviction and
imposition of sentence, you must file a Notice of Appeal
(Form 24(a)) within 20 days after the court’s oral
pronouncement of your sentence in the courtroom. If you want
to appeal from any other appealable judgment or order, you must file
a Notice of Appeal (Form 24(a)) no later than 20 days after the entry
of the judgment or order. You will lose your right to appeal if
you do not file a Notice of Appeal within the time required.

(Emphasis added.) If Ketchner believes his counsel was ineffective by
failing to appeal the ruling on the motion, he may petition for
post-conviction relief. See Ariz. R. Crim. P. 32.1(a); State v. Spreitz, 202 Ariz.
1, 3, ¶ 9 (2002).

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CONCLUSION

¶83 We affirm.

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

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