State v. Shearer

• Decision Date: 21 December 1989
• Docket Number: No. 1,CA-CR,1
• Citation: 164 Ariz. 329,793 P.2d 86
• Parties: STATE of Arizona, Appellee, v. Barbara Ann SHEARER, Appellant. 88-040.
• Court: Arizona Court of Appeals

Page 86

793 P.2d 86

164 Ariz. 329

STATE of Arizona, Appellee, v. Barbara Ann SHEARER, Appellant.

No. 1 CA-CR 88-040.

Court of Appeals of Arizona Division 1, Department D.

Dec. 21, 1989.

Review Granted as to Issue A.A. only June 26, 1990. ^*

[164 Ariz. 330] Robert K. Corbin, Atty. Gen. by Jessica G. Funkhouser, Chief Counsel, Crim. Div., and Joseph T. Maziarz, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by Carol A. Carrigan and James H. Kemper, Deputy Public Defenders, Phoenix, for appellant.

OPINION

GERBER, Presiding Judge.

Appellant Barbara Ann Shearer was convicted of one count of theft and four counts of fraudulent schemes and artifices. The trial court sentenced her to concurrent aggravated terms of 10 years of imprisonment on the theft count, 21 years on one fraudulent schemes count, and 28 years on the remaining three fraudulent schemes counts. On appeal, she raises four issues:

(1) Was her constitutional right to confrontation violated?

(2) Was admission of multi-layered hearsay prejudicial error?

(3) Did the trial court improperly comment on the evidence?

(4) Were the offenses committed on the same occasion such that sentence enhancement under A.R.S. § 13-604(H) was error?

OVERVIEW

In December 1985, appellant was indicted on one count of theft, a class 3 felony. In September 1986, appellant was indicted on four counts of fraudulent schemes and artifices, class 2 felonies. The matters were subsequently consolidated. The basis for both indictments was the allegation that over a period of months, appellant converted and used funds which belonged to her husband and his ex-wife and then absconded.

Two trials occurred. Appellant's first trial began in May 1987. During cross-examination by defense counsel, appellant's husband, Thomas Morris "Arkie" Shearer, suffered a fatal heart attack. Of necessity, a mistrial was declared. Thereafter, the state moved for an order allowing it to use both Shearer's deposition and trial testimony in the new trial. The trial court entered an order admitting various portions of Shearer's trial and deposition testimony. A second trial which commenced in October 1987 resulted in appellant's conviction on all counts. This appeal followed.

FACTS

Because of the bizarre and complicated origins of this case, we provide a detailed historical sketch of the parties' interactions based on testimony.

Background

Appellant's husband, Thomas Morris "Arkie" Shearer (Shearer), began saving money when he was a boy in Arkansas. As a young man, he owned and operated several businesses there and saved a portion of his earnings. In 1957, he married Shirley Shearer. About a year later, the couple separated. Shearer moved to Phoenix, bringing with him between $200,000 and $300,000 in cash. He eventually bought property at 2401 West Van Buren where he did business as "Arkie's Used Cars." He built a home on West Monroe directly behind his business.

In the mid-1960s, Shearer stopped selling cars and went into the auto parts business as "Arkie's Auto Parts." Shirley Shearer had rejoined him, and the two worked long hours to build up the business. They continued to save money. Because of Shearer's distrust of banks, he and Shirley would wrap $20 bills in bundles, place the bundles in tool boxes, and store them in hiding places on his property.

The Shearers divorced in 1983, having secreted approximately $1,700,000 in cash. They were the only persons who knew of its existence and location. They agreed that they would split the money upon Shearer's retirement, and if one of them died prior to that time, the survivor would keep all the money.

Appellant's Marriage to "Arkie" Shearer

After the 1983 divorce, Shearer hired appellant as a live-in housekeeper, paying her $200 per week in cash. Shortly thereafter, Shearer and appellant became romantically involved. She also began working in the auto parts store. About a year after they met, appellant told Shearer that she wanted to marry him and that, if he did not marry her, she would move out of his house. Shearer declined the marriage offer. Appellant moved out. Approximately one month later, however, Shearer agreed to marry her and appellant moved back in with him. Prior to the marriage, the parties executed a prenuptial agreement which, however, was silent as to the Shearer fortune secreted on the property.

About seven months later, Shearer discovered that approximately $302,000 in cash was missing and possibly stolen from a doghouse where a portion of the fortune had been hidden. Shearer suspected Shirley. She denied taking the money. Shirley suggested, later, that a boyfriend of hers may have known that money was hidden in the doghouse and taken it.

Shearer contacted his three children and revealed to them, for the first time, the existence of the money and the fact that some was missing. During the course of this family discussion, appellant asked Shearer what was happening. Shearer then told her fully about the hidden fortune and the recent theft of a portion of it. Shearer told appellant that the money belonged to himself and Shirley.

Because of his concern about the remainder of the money, Shearer decided to hide it elsewhere. He and appellant removed the tool boxes containing cash from the other hiding places on the property. While removing the money, Shearer discovered that a large portion of it had been damaged. ¹ This money was put aside, and the remainder was replaced in tool boxes and placed inside two 55-gallon barrels. The next morning, appellant took the two barrels to a storage locker. When she returned, she gave Shearer a set of keys and kept a set for herself. Shearer reminded appellant that the money belonged to Shirley and himself, and that, as far as appellant was concerned, the money was "forbidden fruit."

Shearer then had appellant take the damaged money to a local bank in amounts under $10,000 to exchange it for new money. When appellant returned with the new money, Shearer placed part of it in a file cabinet in his office at Arkie's Auto Parts and part of it in a file cabinet in a poolroom at his home. Whenever Shearer had enough money to fill two tool boxes, he would give the tool boxes to appellant and instruct her to put them in the storage locker. At some point, appellant rented a second storage locker.

In March 1985, appellant purchased a new Chrysler Fifth Avenue, making three cash payments amounting to $17,000. She took title to the vehicle in her name alone and gave a Phoenix post office box as her address. Shortly thereafter, appellant bought a motor home. She also paid cash for this vehicle and again took title in her name alone, giving an address on East Camelback. She bought insurance for these vehicles and gave the insurance agent a post office box address. When told that she had to provide a residence address where the vehicles were garaged, she told the agent she was living with a friend in Scottsdale and gave a Scottsdale address which turned out to be fictitious.

Appellant did not tell Shearer of these purchases. She stored the vehicles at a house Shearer rented to Billy Compton and William Wood, employees at Arkie's U-Do-It Truck Stuff. Appellant had previously hired Compton and Wood to help her move out of Shearer's home on Monday, April 15, a date when Shearer would be expected to be away working.

In the meantime, appellant had arranged for her daughter, Donna, to come to Phoenix on the weekend of April 13 for a "big surprise." Donna came as planned. On Sunday appellant bought a house with cash she had taken from one of the storage lockers. She told Donna that the house would be deeded in Donna's name so that it could not be traced to appellant. Appellant gave false information to the real estate agent, stating that she was divorced. After paying for the house, appellant told Donna she was leaving Shearer and that, if Shearer asked where they had been, Donna was to tell him that they had been shopping.

Meanwhile, that same Sunday, Shearer decided to check on his money in one of the storage lockers. After discovering that the money was missing, he called his daughter Carol. Carol went to Shearer's house. Together they waited for appellant to return home. When appellant and Donna returned, Shearer asked her if she intended to leave him. Appellant denied that she had any intention of leaving. Donna then left the room, and Shearer and Carol confronted appellant with the fact that the money was missing from the storage locker. Appellant admitted she had taken the money and claimed that it was her "security," stating that, as long as she had the money, "nobody is going to run me off." As appellant prepared to take Donna to the airport, Carol asked her if she was coming back. Appellant told her, "Of course. Don't be silly. I live here. Of course I'm coming back."

Appellant drove Donna to the airport but did not return. Appellant telephoned Compton and Wood and told them that Shearer knew she had taken the money. She told them that, if they wanted their personal belongings, they had better move them out of the rental house quickly.

Appellant's Flight

The next morning, appellant went to a bank to get cash from a safe deposit box. That afternoon, appellant, Compton, Wood, and another person left Phoenix, taking with them the cash, the motor home, the new Chrysler, and a U-Haul truck. At one point, appellant told Compton she had $1.4 million in cash, but she added that she was leaving some of it hidden in Phoenix.

Appellant, Compton, and Wood drove to Texas. On the way, appellant spent a great deal of money. She told Compton and Wood that Shearer would not report her to the police because he had "skimmed it off his income tax" and would go to jail. During their travels, appellant, Compton, and Wood counted out approximately $350,000 in cash. Appellant told them that she had scattered the remainder of the money in different storage lockers so that,...