State v. Steinle, CV–15–0263–PR

• Decision Date: 13 June 2016
• Docket Number: No. CV–15–0263–PR,CV–15–0263–PR
• Citation: 239 Ariz. 415,372 P.3d 939
• Parties: State of Arizona, Petitioner, v. Hon. Roland J. Steinle, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Alejandra Monserat Moran, Real Party in Interest.
• Court: Arizona Supreme Court

239 Ariz. 415

372 P.3d 939

State of Arizona, Petitioner

v.Hon. Roland J. Steinle, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge

Alejandra Monserat Moran, Real Party in Interest.

No. CV–15–0263–PR

Supreme Court of Arizona.

Filed June 13, 2016

William G. Montgomery, Maricopa County Attorney, Lisa Marie Martin (argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona.

Law Office of the Public Defender, Lindsay P. Abramson (argued), Deputy Public Defender, Phoenix, for Alejandra Monserat Moran.

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER, and BOLICK joined.

CHIEF JUSTICE BALES, opinion of the Court:

¶ 1 We here consider the admissibility of an excerpt from a cellphone video recorded by a witness to a stabbing. Because the trial court erred in excluding this evidence on the grounds the court identified, we vacate the lower courts' rulings but remand to allow the trial court to consider, in the first instance, whether the excerpt should be excluded under Arizona Rule of Evidence 403

.

I.

¶ 2 A house party ended with a street fight. Witnesses said that Alejandra Moran and L.U. fought verbally and physically for several minutes before L.U. was stabbed. Another guest at the party, Hector Ponce, used his cell phone to record an approximately five-minute video of the fight, culminating with the stabbing. Ponce edited the video by cropping the first four and one-half minutes, sent the remaining thirty-one second excerpt to his friend Bassam Mahfouz, and then deleted the video from his cell phone. The video excerpt purportedly shows Moran stabbing L.U. in the chest.

¶ 3 L.U. died from the stab wounds

, and the State charged Moran with first-degree murder. Detectives seized Mahfouz's phone to preserve the video evidence. They also unsuccessfully attempted to recover the full-length version of the video from Ponce's phone. Moran moved to exclude the video excerpt on the grounds that it was inadmissible under Arizona Rules of Evidence 106, 1002, 801, and 901. The trial court granted Moran's motion.

¶ 4 The State sought special action relief, arguing in the court of appeals that the trial court had erred in excluding the excerpt because the State was not responsible for the absence of the complete video recording. Relying on Evidence Rules 106

and 403, a divided panel of the court of appeals affirmed the trial court's ruling. State v. Steinle (Moran) , 237 Ariz. 531, 534 ¶ 14, 354 P.3d 408, 411 (App.2015).

¶ 5 We granted review to determine if the trial court erred by excluding the video excerpt, as the admissibility of such evidence presents a recurring legal issue of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution

and A.R.S. § 12–120.24.

II.

¶ 6 We review a trial court's evidentiary rulings for an abuse of discretion. State v. Leteve , 237 Ariz. 516, 523 ¶ 18, 354 P.3d 393, 400 (2015)

. But we review de novo the interpretation of the Arizona Rules of Evidence. State v. Payne , 233 Ariz. 484, 502 ¶ 49, 314 P.3d 1239, 1257 (2013). Our interpretation is guided, but not determined, by federal court decisions when our evidence rules mirror the federal rules. See

State v. Bernstein , 237 Ariz. 226, 228 ¶ 9, 349 P.3d 200, 202 (2015).

A.

¶ 7 Relevant evidence is generally admissible unless it is otherwise precluded by court rules, statutes, or constitutional provisions. Ariz. R. Evid. 402

. A video excerpt depicting a fatal stabbing is plainly relevant in a related criminal prosecution. The issue here is whether any of the rules of evidence identified by Moran preclude admission of the excerpt. We first consider the rules relied upon by the court of appeals—Rules 106 and 403.

¶ 8 Rule 106, the rule of completeness, provides “if a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.” A “recorded statement” may include electronic recordings of conduct, such as the cell-phone video here. See United States v. Yevakpor , 419 F.Supp.2d 242, 252 (N.D.N.Y.2006)

(applying Federal Rule 106 to video recordings by a government agency); see also

Brewer v. Jeep Corp ., 724 F.2d 653, 657 (8th Cir.1983) (applying Federal Rule 106 to a film commissioned by the defendant).

¶ 9 In ruling that Rule 106

supports excluding the excerpt from Ponce's video, the court of appeals reasoned that “the deleted portion of the video is ‘necessary to qualify, explain or place into context the portion already introduced.’ ” 237 Ariz. at 534 ¶ 12, 354 P.3d at 411 (quoting State v. Prasertphong , 210 Ariz. 496, 499 ¶ 15, 114 P.3d 828, 831 (2005) ). The court of appeals also relied on Yevakpor, a district court decision that precluded the government from introducing three one-minute video segments from a longer recording of a border stop and search. 237 Ariz. at 533 ¶ 9, 354 P.3d at 410. The court in Yevakpor noted that the segments portrayed “a small clip of the entire time the defendant was recorded,” and did not show events before the defendant was stopped or the results of the search. 419 F.Supp.2d at 244.

¶ 10 Rule 106, however, is a rule of inclusion rather than exclusion. The rule provides that if one party introduces part of a recorded statement, an adverse party may require the concurrent introduction of other parts when fairness demands, thereby “secur[ing] for the tribunal a complete understanding of the total tenor and effect of the utterance.” Beech Aircraft Corp. v. Rainey , 488 U.S. 153, 171–72, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988)

. Rule 106 does not by its terms address situations when all that remains is a fragment of a once longer statement (for example, if only a few pages have survived an author's unsuccessful attempt to completely destroy a diary); nor does it direct the exclusion of evidence in any circumstance.

¶ 11 Yevakpor

is also inapposite. That case did not turn on Rule 106. The district court instead precluded the video segments as a sanction for government misconduct. 419 F.Supp.2d at 251. In Yevakpor, the government agency recorded a video, selected portions it deemed relevant (or incriminating), and then deleted or recorded over nearly 90 percent of the rest of the recording. Id. at 245–47. Such action was inappropriate, the district court found, because the agents knew the selected footage would be used in prosecuting the case, and the defendant was potentially harmed by the destruction of the rest of the video. Id. at 246–47.

¶ 12 In contrast to Yevakpor

, here the State was not involved in recording or editing Ponce's video. Indeed, the State had no control over what Ponce did with the video after he recorded it on his cell phone. The State sought to introduce the complete version of the only video it ever possessed—the thirty-one second recording recovered from Mahfouz's cell phone. Because Ponce destroyed the longer version he initially recorded, there are no additional portions to admit. Neither Rule 106 nor Yevakpor provides a basis for excluding the video segment at issue here.

¶ 13 The court of appeals also based its analysis on Rule 403

, which allows the exclusion of relevant evidence if its probative value is substantially outweighed by the danger, among other things, of unfair prejudice. Steinle , 237 Ariz. at 534 ¶ 13, 354 P.3d at 411. Rule 403 might warrant excluding evidence of a remnant of a longer recorded statement, but the court of appeals erred by addressing this issue in the current procedural posture of this case. Although Moran briefly argued to the trial court that admitting the video would prejudice her because it omitted events leading to the altercation, she did not raise Rule 403

in her motion to preclude the video's admission. Nor did the trial court identify Rule 403 in granting Moran's motion.

¶ 14 Appellate courts generally should not decide Rule 403

issues in the first instance because such rulings are highly contextual—they necessarily depend on assessments of not only the evidence in question, but also the other evidence in the case. See

Crackel v. Allstate Ins. Co., 208 Ariz. 252, 266 ¶ 53, 92 P.3d 882, 896 (App.2004) (“The balancing of factors under Rule 403 is peculiarly a function of trial courts, not appellate courts.”); see also

State v. Cooperman , 232 Ariz. 347, 351–52 ¶¶ 17–19, 306 P.3d 4, 8–9 (2013) ; Readenour v. Marion Power Shovel , 149 Ariz. 442, 449–50, 719 P.2d 1058, 1065–66 (1986).

¶ 15 These observations apply to video evidence. Such evidence, while perhaps highly probative, may also potentially be unfairly prejudicial or misleading, whether or not the video has been cropped or otherwise edited. See, e.g. , 2 McCormick on Evidence § 216 (7th ed. 2013)

(“[C]ameras do not record everything, and do record only from the perspective of where they are situated. Enhancing and editing add a human element of subjectivity which should also be examined and understood by the jury.”); see also

Snead v. Am. Exp.–Isbrandtsen Lines, Inc., 59 F.R.D. 148, 150 (E.D.Pa.1973) (Noting that “[t]he editing and splicing of films may change the chronology of events.... Thus, that which purports to be a means to reach the truth may be distorted, misleading, and false.”). Such dangers, however, might be mitigated by testimony that explains the circumstances in which the video was made or by cautionary instructions. Here, for example, the State argues that Moran will not be unfairly prejudiced by admitting the video segment because Ponce will be available to testify about its preparation, and he and other witnesses can describe surrounding events that are not depicted on the video.

¶ 16 In these circumstances, the court of appeals erred by addressing the Rule 403

issue in the first instance. Instead, the trial court should have the first...