State v. Rutledge

• Decision Date: 07 April 2003
• Docket Number: No. CR-01-0129-AP.,CR-01-0129-AP.
• Citation: 66 P.3d 50,205 Ariz. 7
• Parties: STATE of Arizona, Appellee, v. Sherman Lee RUTLEDGE, Appellant.
• Court: Arizona Supreme Court

66 P.3d 50

205 Ariz. 7

STATE of Arizona, Appellee, v. Sherman Lee RUTLEDGE, Appellant.

No. CR-01-0129-AP.

Supreme Court of Arizona, En Banc.

April 7, 2003.

Janet A. Napolitano, Former Attorney General, Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section and John Pressley Todd, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Robert W. Doyle, Phoenix, Attorney for Appellant.

OPINION

RYAN, Justice.

¶ 1 Appellant, Sherman Rutledge, was convicted of armed robbery, first degree murder of Ryan Harris and attempted second degree murder of Chase Clayton for events that occurred on May 13, 1997. Rutledge was sentenced to the maximum of twenty-one years for armed robbery and twenty-one years for attempted murder. He was sentenced to death for the murder. Direct appeal to this court is mandatory when the trial court imposes a sentence of death. Ariz. R.Crim. P. 26.15 and 31.2(b). We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 13-4031 (2001).

I.

¶ 2 On the night of May 12, 1997, Chase and Ryan celebrated their twenty-first birthdays.¹ Chase picked up Ryan in a new red Ford Explorer between 9:30 and 10:00 p.m. They went bar hopping until 1:00 a.m. After last call, Chase and Ryan got back into the Explorer and headed toward a friend's apartment at 40th Street and Camelback Road.

¶ 3 Meanwhile, Appellant Rutledge met Ruben Bustos, Jason Ellis and three teenage girls, who were hanging out on the canal bank near the intersection of 40th Street and Camelback Road. Chase and Ryan encountered Rutledge and the group when they stopped for a red light at the intersection. Chase offered the group a ride, after which the entire group went to the 40th Street and Camelback Road apartment. The group left the apartment on two occasions, once to drop off the girls and pick up Rutledge's brother, Jermaine, and a second time to buy drugs at Madison Park located at 16th Street and Campbell.

¶ 4 When the group reached Madison Park, Rutledge got out of the vehicle and pointed a gun at Chase. He pulled the trigger but the gun did not fire. Chase tried to drive away but was hit over the head with a beer bottle by Jermaine. Jermaine then pulled a knife and while he and Chase were fighting for it, Rutledge opened the driver's side front door and pulled Chase out of the Explorer. Chase then said, "If you want it, you can have it," after which he ran from the park and climbed over a chain link fence to reach safety. Rutledge fired three or four shots at Chase as he ran, hitting him once in the shoulder.

¶ 5 At some point, Rutledge shot Ryan and pulled him from the vehicle. The bullet passed through Ryan's pulmonary artery and lodged in his left lung causing him to bleed to death. His body was found approximately 100 yards from where the Explorer had been parked.

¶ 6 After shooting Ryan, Rutledge got back into the Explorer and Jermaine drove away. Rutledge told Ruben and Jason that if either of them told anyone, he would "put a bullet in [them] because he still had one left in his gun." Jermaine backed up the threat, stating, "[a]nd I have a knife." Later that morning, the Explorer was found burning behind a car dealership in Mesa. It had been completely destroyed by fire.

¶ 7 By the time the Explorer was found burning, police already suspected Rutledge and Jermaine of the crimes. By late morning on May 13, 1997, police had located Rutledge's apartment at 16th Street and Campbell.

¶ 8 A search of Rutledge's apartment revealed several pieces of evidence: a piece of paper Ruben and Jason used as an address book,² a knife similar to the one used by Jermaine when he attacked Chase, and a semi-automatic .25 caliber pistol, which was located in Rutledge's mother's locked safe. Fingerprints on the knife matched Jermaine's. An examination confirmed that the pistol had been fired. The bullet removed from Ryan was consistent with a bullet fired from the .25 caliber pistol, but lacked sufficient markings to positively identify the seized pistol as the gun from which the bullet was fired. A shell casing at the scene was also consistent with having been fired from a.25 caliber pistol.

¶ 9 Shortly after midnight on May 14, 1997, two Mesa police officers encountered Rutledge and Jermaine walking in the Fiesta Mall parking lot in Mesa. They were arrested and transported to the Phoenix Police Department.

¶ 10 Rutledge was subsequently interviewed by Detective Lewis of the Phoenix Police Department. During the videotaped interview, Rutledge denied having any involvement with the crimes and even denied being picked up by Chase and Ryan in a red Ford Explorer. When asked what he was doing at the time of the crimes, Rutledge answered that he was "with some females," "getting some pussy," and that he "wasn't out popping nobody." Rutledge refused to give Detective Lewis the names of the "females," claiming "they was [sic] nobody special." Rutledge maintained that he was not involved in the crimes and that he had not seen Jermaine in days.

¶ 11 At trial, Chase and Ruben testified that Rutledge committed the crimes. Rutledge defended by claiming misidentification—that he was not present at the park when Chase and Ryan were shot. He based his defense on Jason's trial testimony that an unknown black male committed the crimes.

¶ 12 But in a videotaped interview conducted by the police shortly after the crimes, Jason had identified Rutledge as the person who committed the crimes. At trial, Jason testified that he named Rutledge as the shooter because he was intoxicated and confused during the videotaped interview and was just telling the police what they wanted to hear. The trial court admitted the videotape to impeach Jason's testimony.

¶ 13 The jury returned guilty verdicts on all counts. Following the verdict, a mitigation and aggravation hearing was held. The trial court found one aggravating factor beyond a reasonable doubt-that Rutledge committed the murder in expectation of pecuniary gain based on the theft of the Explorer. A.R.S. § 13-703(F)(5). The trial judge found that no mitigating circumstances had been proven by a preponderance of the evidence. He therefore sentenced Rutledge to death.

II.

A.

¶ 14 Rutledge argues that he was denied a fair trial because the trial court did not comply with Arizona Rules of Evidence 613(b), which requires that Jason's prior statement be inconsistent before admitting into evidence his videotaped statement to police. Shortly after the verdicts, he filed a motion for a new trial, claiming that the trial court's admission of Jason's videotaped interview with police was an abuse of discretion and denied him his rights to a fair trial and to present a defense under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, as well as Article 2, Section 24, of the Arizona Constitution.

¶ 15 We review whether the trial court erred in denying Rutledge's motion for a new trial for abuse of discretion, State v. Hoskins, 199 Ariz. 127, 142, ¶ 53, 14 P.3d 997, 1012 (2000), and we review the trial court's determination of the relevancy and admissibility of evidence for abuse of discretion. State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990).

¶ 16 Arizona Rule of Evidence 613(b) provides that extrinsic evidence of a prior inconsistent statement is not admissible unless the witness is afforded an opportunity to explain or deny making the statement, and the opposing party is afforded an opportunity to interrogate the witness. "Either or both of these requirements can be dispensed with only if `justice so requires.'" State v. Emery, 131 Ariz. 493, 504, 642 P.2d 838, 849 (1982) (referring to Ariz. R. Evid. 613(b)). However, the rule does not specifically address the use of extrinsic evidence of prior inconsistent statements when the witness admits the prior inconsistencies.

¶ 17 According to Rutledge, the only material inconsistency between the videotaped interview and Jason's testimony is that Jason lied to the police in the videotape when he said Rutledge was present at Madison Park when the crimes took place. Jason admitted to that lie at trial. Because most of the other statements were either consistent or already explained by Jason, the interests of justice did not require admission of the entire fifty-five minute videotape. Therefore, according to Rutledge, the videotaped interview was inadmissible.

¶ 18 The State argues that once Jason claimed he was intoxicated when he made the statements and intimidated into making them, he placed the credibility of his prior statements at issue. The trial court agreed, stating that introduction of the videotape went to "whether or not the defendant was under the influence of something, [or] whether he was operating under some kind of duress or threats." Therefore, the trial court denied Rutledge's motion for a new trial and held that under Rule 613(b) the interests of justice required admission of the videotape.

¶ 19 In State v. Woods, we acknowledged that the prevailing view is that extrinsic evidence of an inconsistent statement is inadmissible when the witness unequivocally admits the inconsistencies.³ 141 Ariz. 446, 452, 687 P.2d 1201, 1207 (1984). However, we specifically declined to follow the majority rule and held that the better rule is that "extrinsic proof of an admitted inconsistent statement is in the discretion of the trial court." Id. at 453, 687 P.2d at 1208. Such discretion is necessary because situations occur in which prior inconsistent statements have "substantive use and where the jury must decide which of two inconsistent statements is true."⁴ Id. In those situations, admission of extrinsic evidence of the statement may be "important for the jury to hear the tone of voice of the witness on the tape. . . or look at the film and judge the demeanor of the witness." Id.

¶ 20 In this case,...