State v. Parks
| Decision Date | 04 August 2005 |
| Docket Number | No. 1 CA-CR 03-0573.,1 CA-CR 03-0573. |
| Citation | 116 P.3d 631,211 Ariz. 19 |
| Parties | STATE of Arizona, Appellee, v. David Patrick PARKS, Appellant. |
| Court | Arizona Supreme Court |
Terry Goddard, Attorney General, by Randall M. Howe, Chief Counsel, Criminal Appeals Section, Phoenix, Attorneys for Appellee.
James Haas, Maricopa County Public Defender, by Spencer D. Heffel, Deputy Public Defender, Phoenix, Attorneys for Appellant.
¶ 1 David Patrick Parks was convicted of manslaughter in the shooting death of Neal Pluguez. Parks' son, Cory, witnessed the shooting. Cory died in an automobile accident before trial. Over objection, the trial court allowed the State to introduce into evidence at trial statements made by Cory to a sheriff's deputy at the crime scene under the "excited utterance" exception to the hearsay rule.
¶ 2 The dispositive issue in this appeal is whether admission of Cory's out-of-court statements as excited utterances complied with the Sixth Amendment guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." As recently recognized by the United States Supreme Court, the Sixth Amendment bars the admission of "testimonial" out-of-court statements by unavailable declarants at a criminal trial unless the defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We hold Cory's statements to the deputy at the crime scene were the product of a police interrogation and testimonial under Crawford. Because Parks had not received a prior opportunity to cross-examine Cory, the statements should not have been admitted into evidence. We thus reverse Parks' conviction and remand for a new trial.
¶ 3 Parks and Pluguez lived on adjoining properties. On the east side of Parks' property was 220th Avenue and on the west was the property occupied by Pluguez. On the eastern edge of, but within the Pluguez property, was a dirt roadway. Both 220th Avenue and the roadway ran north to a paved, main road. Although Parks could access his property using 220th Avenue, he believed the dirt roadway was a public road even though it was within the Pluguez property. Consequently, over Pluguez' objections, Parks and his family used the roadway to access their property.
¶ 4 The dispute between Parks and Pluguez over the roadway escalated throughout 2002. In March, Pluguez exchanged angry words with Parks over Parks' use of the roadway and told him not to use it.
¶ 5 After another angry encounter between the two men in April, Parks tore down part of a chain link fence the Pluguez family had erected along the eastern side of the roadway to block Parks' access to it. Two months later, the Pluguez family again attempted to stop Parks and his family from using the roadway by installing several 5,000 pound concrete highway barriers on the property line. The barriers blocked Parks from using a pedestrian gate and an "RV" gate in a fence Parks had erected on his property. The barriers remained in place until early September when Parks moved several of them so he could work on his fence and build a dog pen on his property.
¶ 6 On September 14, 2002, Parks, Cory, and Parks' brother, Harold, began working on the dog pen. Parks was armed with a handgun ostensibly to defend against snakes. Parks decided to place a discarded telephone pole next to one side of the dog pen to keep his dogs from digging under it. He used a chain on the back of an old pickup truck to maneuver the pole into place. Parks left the truck on the roadway when he, Harold and Cory broke for lunch around noon.
¶ 7 Shortly thereafter, Parks saw Pluguez walk toward the truck, and then walk around it. Parks told Pluguez to stay away from his truck. Pluguez told Parks the land was his and Parks and his truck were not supposed to be on it. The two men argued. Pluguez then walked away, and Harold told Parks he should move his truck because "we don't need anymore trouble."
¶ 8 Parks went to the truck to move it. He saw Pluguez walking back carrying what appeared to be a large car part. Parks entered the truck and started it. According to Harold, who was approximately 45 yards away from the scene, as Pluguez approached the truck, he lifted the part over his head. Harold heard Parks say, "[y]ou better not, you better not." Pluguez then threw or dropped the part on the hood of the truck and Harold heard the truck's motor stall. Parks jumped out of the truck. Harold heard Pluguez say, "[w]hat are you going to do, what are you going to do?" Pluguez continued to walk toward Parks. Parks pulled out his gun and started to back up. As Pluguez advanced, Parks fired one or perhaps two — the evidence is unclear — shots into the ground. Pluguez continued to advance and Parks fired again. According to Harold, Parks was holding the gun with his elbow above his shoulder, but shooting at the ground. Pluguez turned around, started to walk away, and then fell to the ground. Parks had shot Pluguez in the chest.
¶ 9 Harold went over to Pluguez but could feel no pulse. Cory, who had been digging in the yard approximately 25 yards from the truck, also saw the shooting. Cory ran to the house to fetch a phone. Harold telephoned 9-1-1 and told the 9-1-1 operator Parks had shot a neighbor. Pluguez died before the paramedics and sheriff deputies arrived.
¶ 10 On their arrival, sheriff's deputies put Parks "at gunpoint and instructed him to go to his knees" and then to a prone position. They handcuffed, searched and arrested Parks and secured him in the back of a squad car. Cory and his sister were outside of the house, and the deputies heard them yelling their "dad was just defending himself." Deputy Sheriff Robert Manor arrived at around 12:55 p.m., approximately 25 minutes after the shooting. The lead deputy at the scene asked Manor to interview Harold and Cory. Manor asked Harold and Cory if they had seen what had happened. They told Manor they had witnessed the shooting.
¶ 11 After separating the two, Manor questioned Harold for approximately 15 to 20 minutes. Manor then questioned Cory for about 15 to 20 minutes. At trial, Manor testified Cory seemed to be "somewhat excited and talking quickly." Cory told Manor that he had been digging in the middle of the yard when he noticed Pluguez walking from his property "up" the roadway toward the Parks' property. Pluguez walked past the truck and then looked into its bed and interior. His father asked Pluguez what he was doing and in response Pluguez started swearing and asking why the Parks' truck was parked on his property. The two men argued. As Pluguez started to walk toward his property, he picked up a generator or compressor, turned around and began walking back toward the truck. Cory heard his father say "[y]ou better not drop that, you better not throw that at my truck."
¶ 12 When Pluguez was about ten feet from the truck, his father got in the truck to move it. He started the truck and just as it started to move, the motor stalled. As the truck stalled, Pluguez threw the compressor on the hood of the truck. Parks got out of the truck and said something to Pluguez — Cory could not hear what. Parks took a step back as Pluguez advanced toward him. Parks removed his gun from his holster and shot, pointing the gun at a "downward angle." Pluguez continued to walk toward Parks, and Parks shot again. After the last shot, Pluguez turned around and started walking toward his property, but then fell to the ground.
¶ 13 After Manor finished questioning Cory, he told Cory and Harold "they needed to stay separated from each other until Homicide Detectives could interview the two of them again." Sheriff's deputies subsequently drove Cory to a sheriff's station. At approximately 5:46 p.m., a homicide detective, Gary McGuire, interviewed Cory. The interview was videotaped.
¶ 14 Cory's statements to Detective McGuire about the shooting generally tracked what he had told Deputy Manor at the crime scene, except Cory was able to recall his father had said "[w]hat are you doing?" to Pluguez after the truck had stalled. Cory repeated Parks had been in the truck when Pluguez threw the car part at the hood of the truck and Parks had then jumped out of the truck after it had stalled. Cory said his father had stepped back after jumping out of the truck; Pluguez had continued to walk forward; and his father had shot "somewhere like two or three times." Cory demonstrated to McGuire how Parks was holding the gun. After Pluguez fell to the ground, Cory ran into the house to find a telephone and a towel, and put the towel on Pluguez' back for the blood. He tried to check Pluguez' pulse, but "was shaky [and] couldn't really tell." Cory also said he and his father had turned Pluguez over "to get his face out of the dirt."
¶ 15 Parks was ultimately charged with second degree murder. He pleaded not guilty and claimed he had shot Pluguez in self defense.
¶ 16 Six months before trial, Cory died in an automobile accident. The State notified the court and counsel it intended to introduce Cory's statements to Manor and his taped interview with McGuire at trial. Parks moved to bar the State from introducing Cory's statements, asserting they constituted inadmissible hearsay and their admission would violate his Sixth Amendment right to confront the witnesses against him.
¶ 17 The court held an evidentiary hearing on Parks' motion. Deputy Manor testified. The State introduced into evidence McGuire's videotaped interview of Cory; Manor's written report summarizing his interview of Harold and Cory at the scene; a report prepared by another deputy who had taken Parks into custody; and a report...
To continue reading
Request your trial
-
Coppess v. Ryan
...thus related to the event, the event was certainly startling, and the statement was made very shortly after the event. See State v. parks, 211 Ariz. 19, ¶¶10-11, 18, 39, 116 P.3d 631, 634-35, 639 (App. 2005) (trial court did not abuse its discretion in finding statements made by defendant's......
-
In re Fernando R.
...Cal.Rptr.3d 224 [brief statement by caller who did not know he was speaking to police officer held not testimonial]; State v. Parks (2005) 211 Ariz. 19, 116 P.3d 631, 641, review granted Nov. 29, 2005: "[N]ot every police-citizen encounter will be an interrogation. Statements made by witnes......
-
State v. Maclin
...is testimonial. Instead, the focus is entirely on the declarant's objectively reasonable expectations. See State v. Parks, 211 Ariz. 19, 116 P.3d 631, 639 (App.2005) (commenting that "[w]hile a declarant's emotional state may `still' reflection, . . . such a declarant may nevertheless reaso......
-
State v. Romero
...more than simply get help or secure the scene, then the statement might be considered testimonial. See, e.g., State v. Parks, 211 Ariz. 19, 116 P.3d 631, 642 (Ariz.Ct.App. 2005) ("[P]olice questioning during a field investigation does not automatically exempt the statements from being testi......
-
Hearsay after Crawford: a practitioner's guide.
...Crawford "brought both new rigidity and a large element of new confusion to the law of confrontation"). (106.) See, e.g., State v. Parks, 116 P.3d 631, 640 (Ariz. Ct. App. 2005) (finding that the determination of whether an out-of-court statement is testimonial is a factually driven inquiry......