State v. Tinajero
| Decision Date | 09 January 1997 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 188 Ariz. 350,935 P.2d 928 |
| Parties | , 233 Ariz. Adv. Rep. 36 STATE of Arizona, Appellee, v. Alfredo Morales TINAJERO, Appellant. 96-0156. |
| Court | Arizona Court of Appeals |
Alfredo Morales Tinajero (Tinajero) appeals his convictions and sentences for six felony offenses arising from a single fatal traffic collision. We vacate two of his convictions for leaving the scene of an accident because he was improperly charged with three counts of that offense. His remaining convictions are affirmed. We further remand all remaining counts for resentencing because the trial court utilized an improper aggravating factor in sentencing.
We view the facts in the light most favorable to sustaining the jury verdicts. State v. Atwood, 171 Ariz. 576, 596, 832 P.2d 593, 613 (1992), cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993). Tinajero was driving his pickup truck at a high rate of speed when he attempted to pass a vehicle, decided not to, and then lost control of the truck. The truck crashed into an oncoming car. David Lucas, the driver, died as a result of injuries suffered in the collision. His wife Tammy suffered fractures to her arm and hand. Their son Steffan suffered two black eyes and an injury where his seat belt had been buckled.
After the collision, Tinajero's truck rolled over on the driver's side. He and a companion climbed out of the window behind the driver's seat and fled to the home of Florenzio Sanchez Granados, the registered owner of the truck. Tinajero admitted to Sanchez that he had been driving when he crashed the truck. Maricopa County Sheriff's Deputy Pablo Gonzalez later interviewed Sanchez. As he did so, Tinajero then told the deputy that he had been driving the truck at the time of the crash. He claimed that he had not hit anything and that he was alone in the truck. He said he had left the scene of the collision because he was nervous and scared. He reiterated these statements to Scottsdale Police detective William Yedowitz, with Gonzalez providing a translation from Spanish to English. After Tinajero received treatment for his injuries at a local hospital, Yedowitz interviewed him again, with Officer Christopher Humiston providing translation. In this interview, Tinajero admitted knowing that his truck collided with another car.
Police obtained a sample of Tinajero's blood. At the time of the test, his blood alcohol content was .14 percent. A criminalist estimated that Tinajero's blood alcohol content was between .192 and .226 percent at the time of the accident. Investigators tested blood found inside Tinajero's truck and learned that it could not have come from him. The investigation disclosed that Alfonzo Sanchez, Tinajero's companion, had been injured in the collision. Alfonzo testified that he, Tinajero, and a third man had shared 24 cans of beer in the hours preceding the accident. Alfonzo confirmed that Tinajero had been driving at the time of the collision. He said that, after the truck rolled over, Tinajero had said, "[l]et's go, because the police are going to come."
Tinajero testified at trial. He claimed that Alfonzo had been driving the truck when the crash occurred. He said that he had falsely told police that he had been driving in order to protect Alfonzo, who was an illegal immigrant, and because he did not think anyone had been hit. He denied telling Florenzio Sanchez that he had been driving.
Tinajero was found guilty of six felony offenses: manslaughter, a class 2 dangerous felony; two counts of aggravated assault, class 3 dangerous felonies; and three counts of leaving the scene of an accident involving death or injury. One count of leaving the scene was a class 5 felony premised on the death of David Lucas. The other two counts of that offense were class 6 felonies. The trial judge imposed concurrent aggravated sentences of 15 years for manslaughter; 10 years for aggravated assault against Tammy Lucas; and 12 years for aggravated assault against Steffan Lucas. The judge also imposed concurrent terms on the three counts of leaving the scene, sentencing him to two years for the class 5 felony and 1.5 years for each class 6 felony. The judge ordered those latter three concurrent sentences to be served consecutively to the concurrent sentences for aggravated assault and manslaughter.
Tinajero timely appeals. We have jurisdiction pursuant to Arizona Revised Statutes Annotated (A.R.S.) sections 12-120.21(A)(1), 13-4031 and 13-4033(A).
Tinajero raises the following issues on appeal:
1. Whether the trial court erred in denying his motion to admit polygraph evidence;
2. Whether the court erred in precluding admission of his out-of-court statements in which he denied he was driving the truck at the time of the accident;
3. Whether the court erred in denying his motion for sanctions when the state made untimely disclosure of police reports;
4. Whether the court erred in determining that his post-arrest statements were voluntary;
5. Whether the court erred in overruling his hearsay objection to Yedowitz' testimony as to the interpreting officers' translations;
6. Whether the court erred in refusing a jury instruction derived from State v. Willits, regarding the state's alleged failure to preserve evidence;
7. Whether he was properly charged and convicted of three counts of leaving the scene of an accident involving injury or death;
8. Whether his convictions for manslaughter and aggravated assault precluded, on double jeopardy grounds, his conviction for leaving the scene of the accident;
9. Whether the trial court used improper aggravating factors at sentencing.
Prior to trial, Tinajero moved to introduce evidence that he underwent a polygraph examination which revealed that he responded truthfully when he denied driving the vehicle involved in the collision. The trial court denied the motion. We find no error. Evidence regarding a polygraph examination is inadmissible absent a stipulation by the parties. State v. Ikirt, 160 Ariz. 113, 115, 770 P.2d 1159, 1161 (1989).
Tinajero asserts that the trial judge erred when he precluded testimony that, while incarcerated after his arrest, Tinajero stated that he had not been driving at the time of the collision. His out-of-court statements were hearsay, Ariz. R. Evid. 801(c), but were potentially admissible as nonhearsay under Rule 801(d)(1)(B) to rebut a charge of recent fabrication if they were made before a motive to falsify arose. State v. Martin, 135 Ariz. 556, 559, 663 P.2d 240, 243 (App.1982); State v. Vild, 155 Ariz. 374, 377, 746 P.2d 1304, 1307 (App.1987). The judge determined that Tinajero's motive to falsify had arisen by the time he was arrested. Given this time sequence, the trial court did not abuse its discretion.
Tinajero also argues that his post-arrest statements that he had not been driving should have been admitted under the "catchall" hearsay exception of Rule 803(24). We have previously rejected the admissibility of prior consistent statements under this rule because "the trustworthiness of an individual's assertions of innocence are [sic] highly suspect." Starkins v. Bateman, 150 Ariz. 537, 545, 724 P.2d 1206, 1214 (App.1986).
During trial, Tinajero moved for sanctions after the state made untimely disclosure of police reports containing statements of various witnesses. The trial judge granted the motion in part and denied it in part. On appeal, Tinajero argues that the judge committed reversible error in denying his motion for a continuance to permit him to depose Martin Tinajero to whom he made the postarrest statements denying that he was driving at the time of the collision.
We find no reversible error. Even if Tinajero's own statements following his arrest qualified as exculpatory evidence under Rule 15.1(a)(7), Arizona Rules of Criminal Procedure, a new trial was not required unless the statements were material. State v. Spears, 184 Ariz. 277, 287, 908 P.2d 1062, 1072 (1996). Evidence is material only if there is a reasonable probability that its disclosure would have changed the outcome of the proceeding. Id. Because Tinajero's prior statements were inadmissible hearsay, they were not material. Accordingly, the trial court did not abuse its discretion in denying the requested continuance. See State v. Krone, 182 Ariz. 319, 322, 897 P.2d 621, 624 (1995)("[T]he propriety of a given sanction for a discovery violation is largely within the discretion of the trial judge.")
Tinajero contends that the trial court erred in determining that his statements to Yedowitz were voluntary. He claims that the statements were rendered involuntary by the investigator's failure to inform him of the fact that David Lucas had died.
This argument is meritless. We assess the voluntariness of a defendant's statement from the totality of the circumstances. State v. Carrillo, 156 Ariz. 125, 135, 750 P.2d 883, 893 (1988). We will not disturb the trial court's determination that the statement was voluntary absent a showing of clear and manifest error. State v. Tapia, 159 Ariz. 284, 288, 767 P.2d 5, 9 (1988). "[T]he Constitution does not require the police to give every person being questioned a complete exposition of the reason for questioning, the objectives sought, the evidence already in hand, and the strength of the case being built." Carrillo, 156 Ariz. at 136, 750 P.2d at 894; accord...
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