State v. Machado

• Decision Date: 16 February 2011
• Docket Number: No. CR–10–0242–PR.,CR–10–0242–PR.
• Citation: 226 Ariz. 281,246 P.3d 632,602 Ariz. Adv. Rep. 7
• Parties: STATE of Arizona, Appellee,v.Louie Thomas MACHADO, Appellant.
• Court: Arizona Supreme Court

226 Ariz. 281

246 P.3d 632

602 Ariz. Adv. Rep. 7

STATE of Arizona, Appellee,

v.Louie Thomas MACHADO, Appellant.

No. CR–10–0242–PR.

Supreme Court of Arizona, En Banc.

Feb. 16, 2011.

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Phoenix, David A. Sullivan, Assistant Attorney General, Tucson, Attorneys for State of Arizona.Robert J. Hirsh, Pima County Public Defender By M. Edith Cunningham, Assistant Public Defender, David J. Euchner, Assistant Public Defender, Lisa M. Hise, Assistant Public Defender, Tucson, Attorneys for Louie Thomas Machado.

OPINION

HURWITZ, Vice Chief Justice.

¶ 1 This case requires us to apply the Arizona Rules of Evidence to “third-party culpability” evidence—evidence offered by a defendant to show that someone else committed the crime. We conclude that the evidence at issue should have been admitted.

I.

¶ 2 On October 25, 2000, sixteen-year-old Rebecca R. drove home alone from a church party. After Rebecca pulled into the driveway of her mother's house, a neighbor heard her arguing with a male, stating that she did not want to go with him. A shot rang out and Rebecca died shortly thereafter from a gunshot wound.

¶ 3 Investigators initially focused on Jonathan H. as a suspect. Jonathan was a classmate of Rebecca's and the boyfriend of her best friend, Laura. He had threatened to kill Rebecca and Laura two weeks earlier for attempting to resolve a dispute between him and Laura's ex-boyfriend.

¶ 4 Almost a month after the shooting, Rebecca's family received a telephone call. The caller did not identify himself, but said he knew the family through Rebecca. He related details of the shooting that were not publicly known and said he had accidentally killed Rebecca because he was mad at her and she would not do what he wanted. The family members who heard the call said that the caller sounded like a “cold, cocky, and well-spoken” young white male. Relying on this call, police obtained a warrant for a sample of Jonathan's voice. The police, however, lost the sample before it could be played for the family. Jonathan was never arrested or charged.

¶ 5 Several years later, the police investigation focused on a new suspect, Louie Thomas Machado. Machado's mother told police that he had confessed to the murder and had mentioned corroborating details. Machado originally claimed that he had been with Rebecca when she was shot, but later retracted this statement. After Machado's photograph appeared on television, a neighbor of Rebecca's family told police he had seen Machado walking down the street immediately after the murder.

¶ 6 Machado was charged with Rebecca's murder. At trial, he contended that his mother had fabricated the confession, and she testified to that effect. Machado's principal defense was that Jonathan had committed the murder, and Machado proffered evidence in support of that defense.

¶ 7 The superior court admitted evidence of Jonathan's death threat to Rebecca and Laura, his inconsistent accounts of his whereabouts on the night of the murder, and a restraining order that a former girlfriend had obtained against Jonathan. The court, however, excluded testimony about other acts that Jonathan had committed, including the kidnapping of two girls at gunpoint; a road rage incident in which Jonathan pointed a gun at others; and an assault conviction that resulted after Jonathan pointed a gun at a former girlfriend, threatened to kill her, and told her that he had killed before. The trial court also excluded evidence of the anonymous phone call and the subsequent police investigation. Machado was convicted of second-degree murder.

¶ 8 The court of appeals reversed. State v. Machado, 224 Ariz. 343, 365 ¶ 68, 230 P.3d 1158, 1180 (App.2010). The court concluded that evidence about three incidents involving misconduct by Jonathan—the kidnapping, the road rage incident, and the assault—had been improperly excluded. Id. at 354–55 ¶¶ 25–27, 230 P.3d at 1169–70. It also held that evidence of the anonymous telephone call was admissible as a declaration against penal interest under Arizona Rule of Evidence 804(b)(3). Id. at 359 ¶ 44, 230 P.3d at 1174.

¶ 9 We granted review because the admissibility of third-party culpability evidence is a recurrent issue of statewide importance. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24 (2003).

II.

¶ 10 Arizona Rule of Evidence 404(b) provides that, subject to an exception not applicable here, “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” The State argues that the superior court appropriately excluded evidence of the kidnapping, the road rage incident, and the assault under Rule 404(b). Machado, on the other hand, contends that Rule 404(b) does not apply to third-party culpability evidence.

¶ 11 Our prior cases give less than definitive guidance on this issue. In State v. Tankersley, this Court stated that Rule 404(b), which typically is implicated by the state's attempt to introduce other-acts evidence against a defendant, also “applies to other acts of third persons” offered by a defendant to show that someone else committed the crime charged. 191 Ariz. 359, 369 ¶ 39, 956 P.2d 486, 496 (1998). But in State v. Gibson, without mentioning Rule 404(b) or Tankersley, we held that “Rules 401, 402, and 403, Arizona Rules of Evidence, set forth the proper test for determining the admissibility of third-party culpability evidence.” 202 Ariz. 321, 324 ¶ 19, 44 P.3d 1001, 1004 (2002). Shortly thereafter, citing Gibson and again not mentioning Rule 404(b), we stated that third-party culpability evidence “must simply be relevant and then subjected to the normal [Rule] 403 weighing analysis between relevance, on the one hand, and prejudice or confusion on the other.” State v. Prion, 203 Ariz. 157, 161 ¶ 22, 52 P.3d 189, 193 (2002).

¶ 12 The court of appeals thus understandably characterized the law about admission of third-party culpability evidence as “unsettled.” Machado, 224 Ariz. at 356 ¶ 32, 230 P.3d at 1171. The court surmised that Gibson and Prion had implicitly overruled Tankersley “to the extent it holds such evidence may be precluded based on application of Rule 404(b).” See id. at ¶ 31. But see State v. Fish, 222 Ariz. 109, 123 ¶ 42, 213 P.3d 258, 272 (App.2009) (citing Tankersley and concluding that Rule 404(b) “applies to prior acts of ... third parties”). Assessing the three incidents under Rules 401 through 403, the court of appeals concluded that the trial court erred in excluding this evidence. Machado, 224 Ariz. at 354–55 ¶¶ 25–27, 230 P.3d at 1169–70.¹

¶ 13 The applicability of Rule 404(b) to third-party culpability evidence has divided the federal courts. Some federal courts of appeals hold that Federal Rule of Evidence 404(b) (upon which Arizona's rule was modeled) does not apply to such evidence. See Wynne v. Renico, 606 F.3d 867, 872–73, 873 n. 3 (6th Cir.2010) (Martin, J., concurring) (collecting cases). The Ninth Circuit, however, adheres to the opposite view, noting that the language of Rule 404(b) applies on its face to a “person,” not simply a defendant. United States v. McCourt, 925 F.2d 1229, 1231 (9th Cir.1991); see also Tankersley, 191 Ariz. at 369 ¶ 39, 956 P.2d at 496 (citing McCourt, 925 F.2d at 1231).

¶ 14 In our view, the more convincing opinions have recognized that although the language of Rule 404(b) appears to apply universally, its central purpose is to protect criminal defendants from unfair use of propensity evidence. United States v. Lucas, 357 F.3d 599, 611–15 (6th Cir.2004) (Rosen, J., concurring); United States v. Aboumoussallem, 726 F.2d 906, 911–12 (2d Cir.1984). Rule 404(b) has its source in the common law, and the common law rule restricting the use of other-acts evidence was designed to prevent the defendant from being convicted simply because the jury might conclude from the other act that he was a “bad man.” Lucas, 357 F.3d at 611 (Rosen, J., concurring).

¶ 15 We recognized as much in State v. Terrazas, which held that other acts offered under Rule 404(b) against a criminal defendant must be proved by clear and convincing evidence. 189 Ariz. 580, 584, 944 P.2d 1194, 1198 (1997). Although Rule 404(b) does not expressly address the issue, we found the heightened burden of proof appropriate, because, despite cautionary instructions, “the introduction of a defendant's prior bad acts can easily tip the balance against the defendant.” Id. (internal quotation marks omitted). The due process concerns cited in Terrazas do not militate for a higher burden of proof when other-acts evidence is offered to exonerate a defendant. Indeed, if Rule 404(b) were interpreted to exclude highly probative evidence that someone other than the defendant committed the crime, other due process concerns might be implicated. Cf. Chambers v. Mississippi, 410 U.S. 284, 302–03, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (holding that exclusion of third-party culpability evidence bearing “persuasive assurances of trustworthiness” violated the Due Process Clause).

¶ 16 We therefore make explicit today what the court of appeals found implicit in Gibson and Prion. The admission of third-party culpability evidence is governed by the standards of Rules 401 through 403 of the Arizona Rules of Evidence, not by Rule 404(b).² Ordinarily, we would next determine if the evidence here was properly excluded under those Rules. At oral argument, however, the State conceded that if Rule 404(b) does not apply, then the court of appeals correctly concluded that the probative value of the three excluded incidents was not substantially outweighed by the danger of unfair prejudice or confusion. We therefore affirm the opinion below insofar as it concludes that exclusion of this evidence was reversible error.

III.

¶ 17 The...