State v. Yslas, 5712

CourtSupreme Court of Arizona
Writing for the CourtHOLOHAN
Citation139 Ariz. 60,676 P.2d 1118
PartiesSTATE of Arizona, Appellee/Cross-Appellant, v. Joseph Louis YSLAS, Appellant/Cross-Appellee.
Docket NumberNo. 5712,5712
Decision Date31 January 1984

Page 1118

676 P.2d 1118
139 Ariz. 60
STATE of Arizona, Appellee/Cross-Appellant,
Joseph Louis YSLAS, Appellant/Cross-Appellee.
No. 5712.
Supreme Court of Arizona, In Banc.
Jan. 31, 1984.

[139 Ariz. 61]

Page 1119

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Jessica Gifford Funkhouser, Asst. Attys. Gen., Phoenix, for appellee/cross-appellant.

Bolding & Zavala by Michael O. Zavala, Tucson, for appellant/cross-appellee.

HOLOHAN, Chief Justice.

The appellant, Joseph Louis Yslas, was convicted of first degree murder, second degree burglary, and theft of property valued over $100. He was sentenced to imprisonment on each charge for the term provided by law with all sentences to run concurrently. Appellant filed a timely appeal. Pursuant to A.R.S. § 13-4031 we have jurisdiction. We reverse the convictions.

The evidence adduced at trial indicates that, on the evening of August 3, 1981, Henry Tona Garcia and his friend Art Pain were driving around Tucson, with plans to steal a lawnmower if they happened to see one. They had put bolt cutters in the car in case they saw one chained up. They saw appellant (Pain's cousin) and someone known as "Gaby" outside the El Dorado bar sometime after 1:30 a.m. Appellant told them he knew where to find a lawnmower, and he suggested the possibility of burglarizing the house where it was located.

The four then drove to the house of the victim, Gregoria Pesqueria, an elderly woman who lived alone across the street from a house where appellant formerly lived. Appellant, telling Garcia not to come inside, took the bolt cutters and went with Pain into the house. When "Gaby," who was asleep in the car, woke up and started making a lot of noise, Garcia drove him back to the El Dorado.

When Garcia returned, Pain ran toward him. Excited, anxious and out of breath, Pain asked where Garcia had been, and said he had been running all over looking for Garcia. Pain said they had to get away because "he (appellant) hit her."

Garcia drove the car down the alley to the victim's house and saw a sewing machine, a clock, a radio, and other things piled up on the porch. The two men put the property in the trunk. When Garcia and Pain reached the back door, Garcia thought he heard two old people, one a woman, talking inside. When Garcia saw a television in the hallway, he asked Pain if he had touched it. When Pain said he had, Garcia took it because it probably had Pain's fingerprints on it. While he was inside, he saw appellant searching through the house. The living room was a mess and someone was lying on the floor. The three then left the scene of the crime.

[139 Ariz. 62]

Page 1120

When they dropped off the sewing machine and other items early in the morning at Garcia's, Garcia's brother-in-law Alex Perez noticed some of the sewing machine drawers were missing. Garcia, Pain and appellant went back to the house to get them because they would have fingerprints on them. While there, appellant searched again for the money he thought was there.

Shortly afterwards, at approximately 7:00 a.m., Garcia and Pain took appellant home and gave him the television to sell for himself in exchange for his share of the sewing machine.

Police found Mrs. Pesqueria dead that morning, August 4, 1981, at 6:43 a.m. The cause of death was a skull fracture and there were seven distinct injuries to the body with a possibility of multiple blows to some areas. Appellant's fingerprints were found on an eyeglass lens and a small hand mirror, and Pain's fingerprints were on the doorway between the living room and the kitchen.

When Garcia woke up at home later that day, his sister, Rosemary Perez, confronted him alone with a newspaper article about the murder and asked if he had been involved. He admitted that he was involved in the theft but not the murder. Garcia then went with Pain to appellant's home. Appellant said not to worry about it, "I hit her and she died." They decided not to tell anyone about it. Garcia said he now wanted to get rid of the stolen property and appellant said he would take it.

Garcia and Pain went back to Garcia's to get the property, but before they could leave with it Rosemary Perez confronted Pain alone and threatened to go to the police if he did not talk to her. Pain told Perez that appellant "hit her" with a "fierro" (a Spanish word for tool). She also knew there had been bolt cutters with hair and blood on them in Garcia's truck. (Garcia turned the bolt cutters over to the police after he had reached a plea agreement with the state.)

Appellant was not at home when Garcia and Pain brought the stolen property to his residence, so they eventually took it to the desert to be discarded. Appellant tried to sell the TV set to friends but was unsuccessful.

The police received information which linked appellant with the crime along with two others. Appellant, after his arrest, identified Garcia and Pain, and they were also arrested. Garcia pled guilty to burglary and theft, without jail sentence, in return for agreeing to testify in the separate cases against appellant and Pain.

Appellant raises two issues on appeal, but we need only consider one issue--the admissibility of certain testimony concerning statements by co-conspirators. In light of our resolution of that issue we need not consider appellant's other issue or the issue raised by the state in its cross appeal.

The appellant challenges the admission of the testimony of Garcia and Rosemary Perez concerning the statements made by Pain to them that the appellant "hit her" with a fierro. Appellant also challenges the admission of the testimony of Garcia concerning the statement by Pain to him that "he (appellant) hit her." Appellant further claims that Garcia's statement on cross-examination that Pain told Perez that the bolt cutters were used to do the beating was also inadmissible. Since defense counsel elicited this latter testimony, the issue is deemed waived for appeal. State v. Taylor, 99 Ariz. 151, 407 P.2d 106 (1965); State v. Viertel, 130 Ariz. 364, 636 P.2d 142 (App.1981).

Appellant attacks the admission of the Pain statement to Garcia and Perez as violative of his right to confrontation of witnesses. In the opening brief the appellant concedes that a prima facie showing of conspiracy was made, and the challenged testimony would be admissible under Ariz.R.Evid. 801(d)(2)(E). It is appellant's position that the testimony, although admissible under the cited rule of evidence, is not admissible because it deprives him of his constitutional right of confrontation of witnesses presented against him. We note that trial counsel objected at trial to the statements being admitted on much broader[139 Ariz. 63]

Page 1121

grounds than the present position. We also note that in the reply brief appellant denies that he is conceding that the statements were in furtherance of a conspiracy.

Normally we do not review issues not raised, but we are required to review the record of criminal cases for fundamental error and reverse where such error is found to be prejudicial to the...

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