1 CA-CR 07-0177-91122

(Emphasis added.)
The explicit reference to “fruits” clearly
indicates that “not only the direct products, but also the
indirect products” of Defendant’s statements would not be used
by the State against him.
27 Turning to Defendant’s claim of error, the trial court
could have reasonably concluded that Defendant failed to make a
sufficient showing that there had been a violation of the
agreement to justify an evidentiary hearing on his claim.
As
detailed by the State in the response to Defendant’s motion,
Tovar was interviewed by defense counsel the same day, but after
Defendant’s free talk session. Tovar was not present for
Defendant’s free talk and the statements were not recorded.
Thus, the only way that Tovar’s memory could have been refreshed
by Defendant’s statements was if the prosecutor informed him of
the statements.
The prosecutor avowed none of the information
provided by Defendant was conveyed to Tovar.
28 The record does not reflect any challenge by Defendant
to the facts described in the response or the prosecutor’s
avowal. A prosecutor’s avowal based on firsthand knowledge may
be properly considered in ruling on an issue. See State v.
Montano, 204 Ariz. 413, 424, 50, 65 P.3d 61, 72 (2003)
(relying, in part, on the prosecutor’s avowal that there were no
Brady materials in denying the Brady claim), supplemented by 206
14