State v. Henry, CR-88-0123-AP

CourtSupreme Court of Arizona
Citation863 P.2d 861,176 Ariz. 569
Docket NumberNo. CR-88-0123-AP,CR-88-0123-AP
PartiesSTATE of Arizona, Appellee, v. Graham Saunders HENRY, Appellant. /PC.
Decision Date12 November 1993

Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, R. Wayne Ford, Asst. Atty. Gen., Phoenix, for appellee.

DeConcini McDonald Brammer Yetwin & Lacy by Wayne E. Yehling, Tucson, for appellant.


ZLAKET, Justice.

On June 6, 1986, a highway patrolman stopped a pickup truck going the wrong way down Highway 93. In it were defendant, Graham Saunders Henry, and his passenger, Vernon Foote. Henry, who identified himself as "Harold Williams," was arrested for driving under the influence of intoxicating liquor.

A check on the truck showed that it was registered to a Las Vegas man. In the back of the truck were several rifles, VCRs, and stereos. Henry told the arresting officer that he had paid a friend $50 to borrow the vehicle and that the items in the back belonged to its owner. The officer later testified that both men had obviously been drinking, and that Foote was lying on the ground at the scene of the traffic stop in an "extremely intoxicated" condition.

The two men were transported to the Kingman Office of the Department of Public Safety (DPS). There, authorities determined that the truck's owner, a 55-year-old invalid, had been reported missing from Las Vegas. The report indicated that earlier in the day, two suspects had taken the man from his apartment complex under apparently forced circumstances.

Henry (who was still known as "Williams") was questioned during the early morning hours of June 7 at the Mohave County Sheriff's Office. At that time, he The next day, June 8, officers learned of an outstanding California warrant suggesting that "Harold Williams" might actually be Graham Saunders Henry. A detective went to the jail and addressed defendant as "Mr. Henry." At that point, defendant made statements to the effect, "You know who I am, I knew this was going to happen." He then immediately and profusely began to volunteer how he had watched Foote kill the truck's owner and that he was not going to "take the beef for him." He told how he had been sleeping in the back of the truck while Foote drove to the desert area where the crime occurred. He said Foote turned off the highway down a dirt road, dragged the victim out of the truck and up a berm on the side of the road and stabbed him. Henry then led the officers to the scene of the murder, near the location where he and Foote had originally been stopped.

[176 Ariz. 574] denied any knowledge of the owner's whereabouts. He said that Foote had arranged with the owner to use the truck. According to the interrogating officer, Henry said he "wasn't sure" if the owner was in the truck when they left Las Vegas.

Henry and Foote were tried separately. Evidence at Henry's trial indicated that he had encountered Foote, a prior acquaintance, in the Sacramento area and that they decided to leave the state together. Henry denied running from the outstanding California warrant, maintaining that he simply "decided it was time to change states." Before doing so, the two men--driving Henry's truck--stopped at the house of a person Henry claimed owed him money and took the items later found in the back of the victim's truck.

Henry testified that he and Foote drank heavily during the trip. His truck broke down and was towed to a bar near Las Vegas. The tow truck driver testified at trial that Foote "was worse off. Henry seemed to have grasp on what was going on. He was real coherent but [Foote] wasn't."

Henry claimed that Foote left the bar and upon returning announced that the victim would drive them to Kingman, Arizona for $50. He said they went to the victim's apartment complex, which was near the bar. He asserted that the victim was waiting for them in his truck. As the three men left the complex, the victim waved to the apartment manager to--according to Henry--"tell her he wouldn't be late."

Henry claimed that he soon got into the truck camper and went to sleep, apparently leaving the highly intoxicated Foote to drive. He allegedly woke up when the truck left the highway and he heard Foote and the victim arguing. They proceeded about a mile down a dirt road, where Foote pulled over and stopped. Henry testified that he then saw Foote dragging the victim backwards up a berm alongside the road. By the time he was able to get out of the camper, he said, he saw Foote pulling a knife out of the victim. Henry claimed that he leaped up the berm to help the victim, and dragged him toward the shade. When he realized the man was dead, he ran back to the truck and drove off. Foote jumped in the passenger side and washed off the knife with whiskey. When they were stopped by the highway patrol, Henry didn't tell the officers about the killing because he'd "go right to jail myself; lose everything."

The manager at the victim's apartment complex testified that on June 6 she saw the victim between two men, and that he was crying and calling out to her. She immediately notified the police, who arrived 6 1/2 hours later. A friend from the victim's church testified that he never saw anyone else drive the man's truck. This friend also said, without objection from the defense, that the victim surely would not have given anyone a ride of a hundred miles.

An expert tracker testified for the state that footprints depicted in photographs of the crime scene matched those of both Henry and Foote. He stated that two individuals supported the victim on either side and dragged him up the berm, as evidenced by toe marks and front-facing footprints located on either side of them. The victim had been stabbed near a bush, which was covered A forensic serologist testified that no blood was found on Foote's clothes. Henry's clothes, however, were spattered with blood, some of which could have come from the victim, Foote, or Henry himself. The record does not reflect that either Henry or Foote suffered any injuries.

[176 Ariz. 575] with blood. The footprints established that Henry thereafter dragged the body behind a larger bush, where it was hidden from the roadway.

Henry was convicted of first-degree murder, kidnapping, theft and robbery. He was sentenced to death for the murder, and to 21 years for the kidnapping, 15 years for the theft, and 8 years for the robbery, all consecutive to the death sentence. He filed a petition for post-conviction relief, which was denied.


Henry sought to admit, under Rule 804(b)(3), Ariz.R.Evid., the following portions of a recorded statement that Foote gave to a detective six months after the murder:

Foote: Okay. He [the victim] got outa the truck an' had my arm aroun' him, uh, I believe he had his arm aroun' my shoulder.

Patterson: You had--what arm did he have around your shoulder?

Foote: His right arm. He was on my left side I recall. An' we left the berm, walked him up to the spot, helped set him down.

Patterson: Okay. When you say the spot, that's up the berm, inta the desert about twenty feet ...

Foote: point--point A where the blood was.

Patterson: Okay. You helped him all the way there by yourself?

Foote: Yes.

Patterson: Okay. Ho--how do ya know that?

Foote: Uh, because I recall HENRY talking ta me from behind.

Patterson: You mean jist immediately behind you or?

Foote: Uh, I don't recall how far. Uh, he--he coulda still been settin' in the truck.

Patterson: Okay. So he--in--in your mind, he was maybe back by the truck?

Foote: Yes.

Patterson: Okay. An' then what did you do, jis' drop the ol' man?

Foote: No, I jis'--I jis' help set him down an' he--if I recall, he was kina down an' wa' holdin' (inaud.) isself up wi' one elbow.

The trial judge refused to admit these excerpts in evidence. The issue before us is whether he abused his discretion. United States v. Poland, 659 F.2d 884, 895 (9th Cir.1981); State v. Grijalva, 137 Ariz. 10, 14, 667 P.2d 1336, 1340 (Ct.App.1983).

Henry argues that these were statements against Foote's interest. Three elements must exist to admit a statement against the declarant's interest offered to exculpate the accused: (1) the declarant must be unavailable; (2) the statement must have been "at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, ... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true"; and (3) "A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." Rule 804(b)(3), Ariz.R.Evid.; State v. Lopez, 159 Ariz. 52, 764 P.2d 1111 (1988); State v. LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987); State v. Mejias, 163 Ariz. 531, 789 P.2d 398 (Ct.App.1990).

The first two elements are met. The record supports the trial judge's finding that Foote was unavailable because he would have asserted his 5th Amendment privilege if called upon to testify. See Lopez Because the third element is lacking, however, we hold that the trial judge did not abuse his discretion in excluding the statements. The only corroborating evidence was Henry's self-serving testimony that Foote alone dragged the victim backwards up the berm. Without more, and in the face of substantial contradictory evidence, such testimony is generally insufficient to meet the corroborating circumstances requirement. See United States v. Rodriguez, 706 F.2d 31, 40 (2d Cir.1983) (applying Rule 804(b)(3), Fed.R.Evid.); United States v. Tovar, 687 F.2d 1210, 1213-14 (8th Cir.1982) (same); Grijalva, 137 Ariz. at 14-15, 667 P.2d at 1340-41. Virtually all of the other evidence contradicted Foote's statements, including the tracker's uncontroverted testimony that two peo...

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