State v. Nieto

• Decision Date: 22 February 1996
• Docket Number: CA-CR,No. 1,1
• Citation: 186 Ariz. 449,924 P.2d 453
• Parties: STATE of Arizona, Appellee, v. Gabriel Hurtado NIETO, Jr., Appellant. 94-0583.
• Court: Arizona Court of Appeals

Page 453

924 P.2d 453

186 Ariz. 449

STATE of Arizona, Appellee, v. Gabriel Hurtado NIETO, Jr., Appellant.

No. 1 CA-CR 94-0583.

Court of Appeals of Arizona,

Division 1,

Department A.

Feb. 22, 1996.

Redesignated as Opinion and

Publication Ordered March 11, 1996.

Review Denied Sept. 24, 1996.

[186 Ariz. 452] Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Division, and Consuelo M. Ohanesian, Assistant Attorney General, Phoenix, for Appellee.

Gail Gianasi Natale, Phoenix, for Appellant.

OPINION

TOCI, Judge.

Gabriel Hurtado Nieto, Jr. ("defendant") appeals his conviction and sentence for one count of second-degree murder and two counts of aggravated assault. Defendant makes eight claims of error. For the reasons given below, we affirm.

I. FACTS AND PROCEDURAL BACKGROUND

On the night of December 5, 1992, teenagers Brent Lorentz, Kevin Klammer and Clinton Hill, were walking east on Thomas Road. A vehicle, driven by Angel Mendiola, Jr., who had a shotgun in his possession, approached them from the east. Defendant was a passenger in the front seat of the car. As the car passed the teenagers, defendant pointed the shotgun out the window at the three youths and fired one shot. The vehicle then drove off. The gunshot hit sixteen-year old Brent Lorentz, who died six days later. The other boys were not physically harmed. ¹

In June 1993, defendant was arrested at his home. He was taken to the police station, given his Miranda warnings and voluntarily agreed to talk to the police. Although defendant initially denied involvement in the shooting, he later confessed on tape to having shot at the three boys. He claimed, however, it was an accident. He said that he was drunk at the time, that he had no reason to shoot at the boys, that he did not think the gun was loaded, and that he only intended to scare them. The police contacted Mendiola later that afternoon. In a tape-recorded statement, Mendiola corroborated defendant's account of his own and defendant's involvement in the shooting.

Defendant was indicted on one count of first-degree murder, a class 1 felony, and two counts of aggravated assault, class 3 felonies. He was found guilty of the lesser-included offense of second-degree murder and of the aggravated assault counts. The jury found these crimes to be dangerous. Defendant was sentenced to an aggravated term of 18 years for second-degree murder and presumptive terms of 7.5 years on each count of aggravated assault, those sentences to run concurrently to each other, but consecutively to the sentence for second-degree murder. He was credited with 397 days of presentence incarceration and ordered to pay $80,237.60 in restitution and $300 in felony assessment fees. This appeal followed.

II. DISCUSSION

On appeal, defendant argues that:

1. Defendant's federal and state constitutional rights to confront witnesses against him were violated when the court permitted introduction at trial of Mendiola's tape-recorded interview with police.

2. The trial court committed reversible error by refusing to instruct the jury on negligent homicide.

3. The trial court violated Rule 22.2, Arizona Rules of Criminal Procedure, by giving the jurors a copy of the indictment to use during their deliberations.

4. The trial court abused its discretion by admitting photographs of the crime scene taken several months later which showed gang graffiti on the curb, although such graffiti was not present at the time of the crimes.

5. The trial court violated Rule 19.1, Arizona Rules of Criminal Procedure, by varying the order of proceedings and reading the jury instructions prior to closing arguments.

6. There was prosecutorial misconduct because the state did not maintain contact with two potential witnesses.

7. The trial court erred by instructing the jury that punishment is the sole concern of the judge.

8. The trial court erred by denying a motion for judgment of acquittal on the first-degree murder charge as there was insufficient evidence of premeditation.

A. Violation of Right to Confront Witnesses

Defendant first contends that the trial court violated his constitutional right to confront witnesses against him by admitting in evidence the tape-recorded statement of Mendiola. Mendiola was called as a witness, but asserted his Fifth Amendment right against self-incrimination. Despite the prosecutor's offer of use immunity pursuant to Ariz.Rev.Stat.Ann. ("A.R.S.") section 13-4064 (1989), Mendiola refused to testify. The trial court held him in contempt and jailed him for the duration of the trial. The court admitted the taped interview under Rule 804(b)(3), finding that the statements were against Mendiola's penal interest, otherwise had an adequate indicia of reliability, and were corroborated by other witnesses. Defendant claims this violated his constitutional rights to confront witnesses. See Lee v. Illinois 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). ²

Although the confrontation clause of the Sixth Amendment guarantees criminal defendants the right to confront their accusers, this right is not absolute and must sometimes give way to considerations of public policy. State v. Ruelas, 174 Ariz. 37, 39-40, 846 P.2d 850, 852-53 (App.1992). Public policy overrides the confrontation clause when the declarant is unavailable and his statement bears adequate "indicia of reliability." There is sufficient "indicia of reliability" if the statement either falls within a "firmly rooted" hearsay exception ³ or is supported by a "showing of particularized guarantees of trust-worthiness." Id. at 40, 846 P.2d at 853 (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980)). To determine whether guarantees of trustworthiness exist, courts must consider " 'the totality of circumstances ... that surround the making of the statement and that render the declarant particularly worthy of belief.' " State v. Luzanilla, 179 Ariz. 391, 394, 880 P.2d 611, 614 (1994), cert. denied, --- U.S. ----, 115 S.Ct. 1406, 131 L.Ed.2d 293 (1995) (quoting Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 3148, 111 L.Ed.2d 638 (1990)).

Mendiola was unavailable because he asserted his Fifth Amendment right not to testify. State v. Henry, 176 Ariz. 569, 575, 863 P.2d 861, 867 (1993). Thus, the only issue to resolve is whether the second condition of admissibility was met. The state moved to admit Mendiola's tape-recorded interview with Detective Chapman as a declaration against interest. In that interview, Mendiola told Chapman he was driving the vehicle involved in the drive-by shooting, that defendant was the passenger in the front seat, and that they had been drinking. He said defendant told him to make a U-turn and approach the three boys, saw defendant take the shotgun out and fire it at them, and saw the victim fall. He stated that he drove away after the shooting because he did not want "to be around there." He told the detective that defendant did not intend to shoot the victim, but "was just freaking." After admitting the incident was "terrible," Mendiola said, "I'd rather go to jail too if I have to man. Cause I was involved."

Arizona Rule of Evidence 804(b)(3) creates an exception to the hearsay rule for a declaration against interest made by an unavailable declarant. That rule defines a declaration against interest as, "[a] statement which was at the time of its making is ... so far tended to subject [the declarant] to civil or criminal liability ... that a reasonable man in his position would not have made the statement unless he believed it to be true."

"Subjecting oneself to criminal liability qualifies as a declaration against interest." State v. Lopez, 159 Ariz. 52, 54, 764 P.2d 1111, 1113 (1988). Mendiola's statements did subject him to potential criminal liability for the crimes committed as an accomplice, A.R.S. section 13-301 (1989), or possibly for the separate crime of facilitation, A.R.S. section 13-1004 (1989). See State v. Garcia, 176 Ariz. 231, 233, 860 P.2d 498, 500 (App.1993) (defendant who was driver of car in drive-by shooting liable for aggravated assault on accomplice theory). However, Mendiola's statements not only incriminated himself, they also incriminated defendant.

The United States Supreme Court in Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), recently explained the proper application of federal evidence rule 804(b)(3), the federal counterpart to the Arizona rule, to statements containing both self-inculpatory and non-self-inculpatory parts. ⁴ In interpreting Rule 804(b)(3), the Supreme Court adopted a narrow definition of "statement," holding that it includes only those declarations that are individually self-inculpatory. Id. at ---- - ----, 114 S.Ct. at 2434-35. The Court concluded that Rule 804(b)(3) "does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory." Id. at ----, 114 S.Ct. at 2435.

To determine if a statement is truly against interest requires a fact-intensive inquiry of the surrounding circumstances and each declaration must be scrutinized to determine if it is self-inculpatory in light of the totality of circumstances. Id. at ----, 114 S.Ct. at 2437. The court observed, "[e]ven the confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor." Id. at ----, 114 S.Ct. at 2436. Courts must analyze each proffered statement separately to determine whether it is truly against penal interest. United States v. Sims, 879 F.Supp. 828, 832 (N.D.Ill.1995). The Williamson court also noted that non-self-inculpatory statements might be admissible under another exception to the hearsay rule. 512 U.S. at ---- n.*, 114 S.Ct. at 2437 n.*.

Many of Mendiola's statements subject him to criminal liability such that a reasonable person would not have made...