SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0242-PR
Appellee, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-CR 08-0205
LOUIE THOMAS MACHADO, )
) Pima County
Appellant. ) Superior Court
) No. CR20063933
)
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Pima County
The Honorable Frank Dawley, Judge Pro Tempore
REVERSED AND REMANDED
________________________________________________________________
Opinion of the Court of Appeals, Division Two
224 Ariz. 343, 230 P.3d 1158 (App. 2010)
AFFIRMED
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THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
David A. Sullivan, Assistant Attorney General Tucson
Attorneys for State of Arizona
ROBERT J. HIRSH, PIMA COUNTY PUBLIC DEFENDER Tucson
By M. Edith Cunningham, Assistant Public Defender
David J. Euchner, Assistant Public Defender
Lisa M. Hise, Assistant Public Defender
Attorneys for Louie Thomas Machado
________________________________________________________________
H U R W I T Z, Vice Chief Justice
¶1 This case requires us to apply the Arizona Rules of
Evidence to “third-party culpability” evidence – evidence
offered by a defendant to show that someone else committed the
crime. We conclude that the evidence at issue should have been
admitted.
I.
¶2 On October 25, 2000, sixteen-year-old Rebecca R. drove
home alone from a church party. After Rebecca pulled into the
driveway of her mother’s house, a neighbor heard her arguing
with a male, stating that she did not want to go with him. A
shot rang out and Rebecca died shortly thereafter from a gunshot
wound.
¶3 Investigators initially focused on Jonathan H. as a
suspect. Jonathan was a classmate of Rebecca’s and the
boyfriend of her best friend, Laura. He had threatened to kill
Rebecca and Laura two weeks earlier for attempting to resolve a
dispute between him and Laura’s ex-boyfriend.
¶4 Almost a month after the shooting, Rebecca’s family
received a telephone call. The caller did not identify himself,
but said he knew the family through Rebecca. He related details
of the shooting that were not publicly known and said he had
accidentally killed Rebecca because he was mad at her and she
would not do what he wanted. The family members who heard the
call said that the caller sounded like a “cold, cocky, and well-
2
spoken” young white male. Relying on this call, police obtained
a warrant for a sample of Jonathan’s voice. The police,
however, lost the sample before it could be played for the
family. Jonathan was never arrested or charged.
¶5 Several years later, the police investigation focused
on a new suspect, Louie Thomas Machado. Machado’s mother told
police that he had confessed to the murder and had mentioned
corroborating details. Machado originally claimed that he had
been with Rebecca when she was shot, but later retracted this
statement. After Machado’s photograph appeared on television, a
neighbor of Rebecca’s family told police he had seen Machado
walking down the street immediately after the murder.
¶6 Machado was charged with Rebecca’s murder. At trial,
he contended that his mother had fabricated the confession, and
she testified to that effect. Machado’s principal defense was
that Jonathan had committed the murder, and Machado proffered
evidence in support of that defense.
¶7 The superior court admitted evidence of Jonathan’s
death threat to Rebecca and Laura, his inconsistent accounts of
his whereabouts on the night of the murder, and a restraining
order that a former girlfriend had obtained against Jonathan.
The court, however, excluded testimony about other acts that
Jonathan had committed, including the kidnapping of two girls at
gunpoint; a road rage incident in which Jonathan pointed a gun
3
at others; and an assault conviction that resulted after
Jonathan pointed a gun at a former girlfriend, threatened to
kill her, and told her that he had killed before. The trial
court also excluded evidence of the anonymous phone call and the
subsequent police investigation. Machado was convicted of
second-degree murder.
¶8 The court of appeals reversed. State v. Machado, 224
Ariz. 343, 365 ¶ 68, 230 P.3d 1158, 1180 (App. 2010). The court
concluded that evidence about three incidents involving
misconduct by Jonathan – the kidnapping, the road rage incident,
and the assault – had been improperly excluded. Id. at 354-55
¶¶ 25-27, 230 P.3d at 1169-70. It also held that evidence of
the anonymous telephone call was admissible as a declaration
against penal interest under Arizona Rule of Evidence 804(b)(3).
Id. at 359 ¶ 44, 230 P.3d at 1174.
¶9 We granted review because the admissibility of third-
party culpability evidence is a recurrent issue of statewide
importance. We have jurisdiction pursuant to Article 6, Section
5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003).
II.
¶10 Arizona Rule of Evidence 404(b) provides that, subject
to an exception not applicable here, “evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.” The
4
State argues that the superior court appropriately excluded
evidence of the kidnapping, the road rage incident, and the
assault under Rule 404(b). Machado, on the other hand, contends
that Rule 404(b) does not apply to third-party culpability
evidence.
¶11 Our prior cases give less than definitive guidance on
this issue. In State v. Tankersley, this Court stated that Rule
404(b), which typically is implicated by the state’s attempt to
introduce other-acts evidence against a defendant, also “applies
to other acts of third persons” offered by a defendant to show
that someone else committed the crime charged. 191 Ariz. 359,
369 ¶ 39, 956 P.2d 486, 496 (1998). But in State v. Gibson,
without mentioning Rule 404(b) or Tankersley, we held that
“Rules 401, 402, and 403, Arizona Rules of Evidence, set forth
the proper test for determining the admissibility of third-party
culpability evidence.” 202 Ariz. 321, 324 ¶ 19, 44 P.3d 1001,
1004 (2002). Shortly thereafter, citing Gibson and again not
mentioning Rule 404(b), we stated that third-party culpability
evidence “must simply be relevant and then subjected to the
normal [Rule] 403 weighing analysis between relevance, on the
one hand, and prejudice or confusion on the other.” State v.
Prion, 203 Ariz. 157, 161 ¶ 22, 52 P.3d 189, 193 (2002).
¶12 The court of appeals thus understandably characterized
the law about admission of third-party culpability evidence as
5
“unsettled.” Machado, 224 Ariz. at 356 ¶ 32, 230 P.3d at 1171.
The court surmised that Gibson and Prion had implicitly
overruled Tankersley “to the extent it holds such evidence may
be precluded based on application of Rule 404(b).” See id. at
¶ 31. But see State v Fish, 222 Ariz. 109, 123 ¶ 42, 213 P.3d
258, 272 (App. 2009) (citing Tankersley and concluding that Rule
404(b) “applies to prior acts of . . . third parties”).
Assessing the three incidents under Rules 401 through 403, the
court of appeals concluded that the trial court erred in
excluding this evidence. Machado, 224 Ariz. at 354-55 ¶¶ 25-27,
230 P.3d at 1169-70.1
¶13 The applicability of Rule 404(b) to third-party
culpability evidence has divided the federal courts. Some
federal courts of appeals hold that Federal Rule of Evidence
404(b) (upon which Arizona’s rule was modeled) does not apply to
such evidence. See Wynne v. Renico, 606 F.3d 867, 872-73, 873
n.3 (6th Cir. 2010) (Martin, J., concurring) (collecting cases).
The Ninth Circuit, however, adheres to the opposite view, noting
that the language of Rule 404(b) applies on its face to a
“person,” not simply a defendant. United States v. McCourt, 925
1
Even assuming that Rule 404(b) applied, the court of
appeals concluded that the three incidents were admissible
because they were offered to prove something other than the
propensity of Jonathan to commit violent crimes. Machado, 224
Ariz. at 357 ¶ 34, 230 P.3d at 1172.
6
F.2d 1229, 1231 (9th Cir. 1991); see also Tankersley, 191 Ariz.
at 369 ¶ 39, 956 P.2d at 496 (citing McCourt, 925 F.2d at 1231).
¶14 In our view, the more convincing opinions have
recognized that although the language of Rule 404(b) appears to
apply universally, its central purpose is to protect criminal
defendants from unfair use of propensity evidence. United
States v. Lucas, 357 F.3d 599, 611-15 (6th Cir. 2004) (Rosen,
J., concurring); United States v. Aboumoussallem, 726 F.2d 906,
911-12 (2d Cir. 1984). Rule 404(b) has its source in the common
law, and the common law rule restricting the use of other-acts
evidence was designed to prevent the defendant from being
convicted simply because the jury might conclude from the other
act that he was a “bad man.” Lucas, 357 F.3d at 611 (Rosen, J.,
concurring).
¶15 We recognized as much in State v. Terrazas, which held
that other acts offered under Rule 404(b) against a criminal
defendant must be proved by clear and convincing evidence. 189
Ariz. 580, 584, 944 P.2d 1194, 1198 (1997). Although Rule
404(b) does not expressly address the issue, we found the
heightened burden of proof appropriate, because, despite
cautionary instructions, “the introduction of a defendant’s
prior bad acts can easily tip the balance against the
defendant.” Id. (internal quotation marks omitted). The due
process concerns cited in Terrazas do not militate for a higher
7
burden of proof when other-acts evidence is offered to exonerate
a defendant. Indeed, if Rule 404(b) were interpreted to exclude
highly probative evidence that someone other than the defendant
committed the crime, other due process concerns might be
implicated. Cf. Chambers v. Mississippi, 410 U.S. 284, 302-03
(1973) (holding that exclusion of third-party culpability
evidence bearing “persuasive assurances of trustworthiness”
violated the Due Process Clause).
¶16 We therefore make explicit today what the court of
appeals found implicit in Gibson and Prion. The admission of
third-party culpability evidence is governed by the standards of
Rules 401 through 403 of the Arizona Rules of Evidence, not by
Rule 404(b).2 Ordinarily, we would next determine if the
evidence here was properly excluded under those Rules. At oral
2
As the court of appeals noted, a defendant may not, in the
guise of a third-party culpability defense, simply “throw
strands of speculation on the wall and see if any of them will
stick.” Machado, 224 Ariz. at 357 ¶ 33 n.11, 230 P.3d at 1172
n.11 (quoting David McCord, “But Perry Mason Made It Look So
Easy!”: The Admissibility of Evidence Offered by a Criminal
Defendant to Suggest that Someone Else is Guilty, 63 Tenn. L.
Rev. 917, 984 (1996)) (internal quotation mark omitted).
Evidence offered to establish the culpability of a third party
is relevant under Rule 401 only when it “tend[s] to create a
reasonable doubt as to the defendant’s guilt.” Gibson, 202
Ariz. at 324 ¶ 16, 44 P.3d at 1004 (emphasis omitted). And, as
is the case with all relevant evidence, the trial court has
discretion to exclude third-party culpability evidence “if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” Ariz. R. Evid.
403.
8
argument, however, the State conceded that if Rule 404(b) does
not apply, then the court of appeals correctly concluded that
the probative value of the three excluded incidents was not
substantially outweighed by the danger of unfair prejudice or
confusion. We therefore affirm the opinion below insofar as it
concludes that exclusion of this evidence was reversible error.
III.
¶17 The superior court excluded the anonymous telephone
call both as inadmissible hearsay and because it found any
probative value substantially outweighed by the danger of unfair
prejudice and confusion. The court of appeals rejected each of
these holdings.
A.
¶18 Because the statements in the telephone call were
offered to prove that the caller, not Machado, killed Rebecca,
they were plainly hearsay. See Ariz. R. Evid. 801(c) (defining
hearsay as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted”). The court of appeals,
however, found that the call fell within the exception to the
hearsay rule in Rule 804(b)(3) for statements against interest.
Machado, 224 Ariz. at 359 ¶ 44, 230 P.3d at 1174. That Rule
allows admission of a statement of an unavailable declarant that
“so far tended to subject the declarant to civil or criminal
9
liability . . . that a reasonable person in the declarant’s
position would not have made the statement unless believing it
to be true.” Ariz. R. Evid. 804(b)(3). If the statement tends
to expose the declarant to criminal liability and is offered to
exculpate the accused, its proponent must also show that
“corroborating circumstances clearly indicate the
trustworthiness of the statement.” Id.
¶19 An anonymous statement would not typically qualify as
a statement against penal interest under Rule 804(b)(3). By
concealing his identity, the declarant seeks to protect himself
from the consequences of admitting to a crime. Such a statement
ordinarily would not tend to expose the declarant to criminal
liability, as Rule 804(b)(3) requires. See State v. Tucker, 414
S.E.2d 548, 555 (N.C. 1992) (noting that “a declarant who
conceals his identity does not tend to expose himself to
criminal liability”). Most courts have accordingly found Rule
804(b)(3) inapplicable to anonymous statements. See Clark v.
Optical Coating Lab., Inc., 80 Cal. Rptr. 3d 812, 833-34 (Cal.
Ct. App. 2008) (collecting cases); State v. Kiser, 284 S.W.3d
227, 265 (Tenn. 2009) (same).
¶20 However, both in its supplemental brief and at oral
argument, the State conceded that the anonymous telephone call
in this case was a statement against penal interest by the
declarant. Presumably, the State did so because it obtained a
10
warrant for Jonathan’s voice sample on the basis of the call,
making it somewhat difficult to argue that the call did not tend
to expose the declarant to criminal liability. Cf. Bevers v.
State, 811 S.W.2d 657, 662-63 (Tex. Crim. App. 1991) (admitting
anonymous calls when identity of caller could be readily
determined).
¶21 The State has also understandably conceded the
unavailability of the declarant. Thus the only contested issue
is whether “corroborating circumstances clearly indicate the
trustworthiness of the statement.” Ariz. R. Evid. 804(b)(3).
In addressing this issue, we “must examine any evidence that
corroborates or contradicts the statement to find whether a
reasonable person could conclude that the statement is true.”
See State v. Harrod, 200 Ariz. 309, 313 ¶ 16, 26 P.3d 492, 496
(2001), vacated on other grounds, 536 U.S. 953 (2002).
¶22 We conclude, as did the court of appeals, that the
evidence in this case corroborates the statement. The caller
stated that before the shooting, he waited by a white minivan
parked near a neighbor’s house. At the time of the crime, a
white minivan was in fact parked nearby. The caller also stated
that he saw Rebecca come home in a white Ford Escort. This
detail was also correct, and the Escort had only recently been
purchased. Neither of the facts described by the caller had
been reported in the media.
11
¶23 Moreover, the primary goal of the corroboration
requirement in Rule 804(b)(3) is to prevent criminal suspects
from fabricating hearsay admissions to the crime by others. See
Fed. R. Evid. 804(b)(3) Advisory Committee Note (“The
requirement of corroboration should be construed in such a
manner as to effectuate its purpose of circumventing
fabrication.”). Because Machado was not a suspect when the
anonymous call was made, it seems unlikely that he was involved
in any such fabrication, and nothing in the record suggests
otherwise.
B.
¶24 Even if a statement falls under an exception to the
hearsay rules, it also must be evaluated under the relevancy
test of Rule 401 and the weighing analysis of Rule 403. The
court of appeals concluded that “evidence about the telephone
call had obvious, substantial probative value,” Machado, 224
Ariz. at 358 ¶ 39, 230 P.3d at 1173, and the trial court
acknowledged that the call might even be “super relevant,” id.
at ¶ 39 n.13. We agree. The caller admitted committing the
crime, and there were powerful indications that Machado was not
the caller. The caller referred to remarks made at Rebecca’s
funeral, which Machado did not attend. Rebecca’s family members
described the caller as a “well-spoken” young white male.
Jonathan was Caucasian and well-spoken, while Machado was
12
Hispanic, had an accent, and used poor grammar. The call thus
“tend[s] to create a reasonable doubt as to the defendant’s
guilt.” Gibson, 202 Ariz. at 324 ¶ 16, 44 P.3d at 1004
(emphasis omitted).
¶25 The court of appeals also correctly concluded that the
probative value of the telephone call was not substantially
outweighed by the risk of confusion or unfair prejudice.
Machado, 224 Ariz. at 358 ¶ 39, 230 P.3d at 1173. As the court
noted, the only issue in this case is whether Machado or someone
else committed the murder. The telephone call went directly to
that issue and did not have the potential of distracting the
jury from the central issues in the case. See Machado, 224
Ariz. at 358 ¶ 39 n.14, 230 P.3d at 1173 n.14. The court of
appeals thus appropriately held that evidence of the telephone
call should have been admitted.
IV.
¶26 For the reasons above, we reverse Machado’s
conviction, affirm the opinion of the court of appeals, and
remand to the superior court for further proceedings consistent
with this opinion.
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
13
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
Michael D. Ryan, Justice (Retired)
14