State v. Huerstel

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0103-AP
Appellee,)
) Pima County Superior
v. ) Court
) No. CR-64663
CHRISTOPHER BO HUERSTEL, )
)
Appellant.)
) O P I N I O N

Appeal from the Superior Court in Pima County
No. CR-64663
The Honorable Michael Brown, Judge (Retired)

REVERSED AND REMANDED

Janet A. Napolitano, Former Attorney General
Terry Goddard, Attorney General Phoenix
by Kent E. Cattani, Chief Counsel Capital
Litigation Section
and Monica Beerling Klapper, Assistant Attorney
General
and Bruce M. Ferg, Assistant Attorney General Tucson
Attorneys for Appellee

Law Offices of Williamson & Young, PC Tucson
by S. Jonathan Young
Attorney for Appellant

R Y A N, Justice

¶1 A Grand Jury indicted Christopher Bo Huerstel and his co-

defendant, Kajornsak Prasertphong, charging them with three counts

of first degree murder for the January 17, 1999 deaths of Robert

Curry, Melissa “Lisa” Moniz, and James Bloxham at a Pizza Hut

restaurant in Tucson. The indictment also charged Huerstel and

1
Prasertphong with three counts of armed robbery in connection with

the murders. The cases generated a significant amount of media

attention in Tucson. Consequently, the trial court granted a

motion for change of venue to Yavapai County. The court also

granted a motion to sever the trials, but ruled that because enough

similarity existed between the cases in terms of facts and

witnesses, conducting the trials before a single judge with dual

juries would be the most efficient way to try the cases.

¶2 Huerstel’s jury convicted him of three counts of first

degree felony murder and three counts of the lesser-included

offense of attempted armed robbery. Following an aggravation and

mitigation hearing, the trial judge sentenced Huerstel to death for

the murders of Moniz and Bloxham, and to a prison term of natural

life for the murder of Curry. See Arizona Revised Statutes

(“A.R.S.”) § 13-703 (1994). The judge also sentenced him to

fifteen years in prison for each of the three attempted armed

robbery counts. A Notice of Appeal to this court was filed under

Arizona Rules of Criminal Procedure 26.15 and 31.2(b) and A.R.S.

section 13-4031 (2001). This court has jurisdiction under Article

6, Section 5.3 of the Arizona Constitution and A.R.S. section 13-

4031.

I.

¶3 Huerstel raises twenty-three issues on appeal, most of

2
which are meritless.1 However, because we conclude the trial

court’s actions coerced the jury’s verdicts, we must reverse and

remand for a new trial. Accordingly, this opinion addresses only

that issue and also those that will likely arise at retrial. We

therefore only set forth the facts relevant to the issues we

address. For a detailed account of the crimes and subsequent

events see the opinion issued today in State v. Prasertphong, ___

Ariz. ___, ___ - ___, ¶¶ 2 -15, ___ P.3d ___, ___ - ___ (2003).

II.

¶4 Huerstel presents several claims concerning the jury

deliberations in this case: first, the actions of the trial judge

coerced the jury verdict; second, the trial judge engaged in an

improper ex parte communication with a juror; third, there was

“dissension” among the jurors; and fourth, the jury deliberated in

small groups. Because the trial judge’s actions improperly

influenced the jury’s verdict, we focus on that claim.

A.

¶5 In determining whether a trial court has coerced the

jury’s verdict, this court views the actions of the judge and the

comments made to the jury based on the totality of the

1
This court discourages the “kitchen sink” approach to
appellate advocacy. State v. Bolton, 182 Ariz. 290, 299, 896 P.2d
830, 839 (1995). Rather, we encourage appellate advocates to
narrow their focus to those issues raised at trial that have
arguable merit. Id.

3
circumstances and attempts to determine if the independent judgment

of the jury was displaced. State v. McCrimmon, 187 Ariz. 169, 172,

927 P.2d 1298, 1301 (1996); State v. McCutcheon, 150 Ariz. 317,

320, 723 P.2d 666, 669 (1986) (McCutcheon I). In this case, the

issue can best be understood within the context of a comprehensive

recounting of the slightly more than three and one-half days of

jury deliberations.

B.

¶6 The trial lasted about three weeks, beginning on August

21, 2000. The trial court gave the jury its final instructions on

September 11, 2000, and the jury deliberated for a short time that

afternoon. The next day, September 12, the jury deliberated all

day. During that time, the court received several questions from

the jury asking whether certain items were in evidence. At no time

did the jury indicate that it had reached an impasse or was having

difficulty. The court excused the jury at 4:40 in the afternoon

and instructed it to come back the next morning at 9:00. After

excusing the jury, the trial judge told counsel he intended to give

the jurors an additional instruction, essentially asking if the

jurors were having problems and to “give them some direction.”

Both attorneys believed that such an instruction was premature.

¶7 The jury deliberated all day on September 13. It asked

only one question about the credentials of an expert witness and

gave no indication of an impasse. The trial court did not give the

4
proposed instruction it had discussed the evening before.

¶8 On the morning of September 14, the court received a

question from the jury about an evidentiary matter and an

instruction. After consulting with counsel, the court sent in a

response. Then, at the end of the day, the court told counsel it

intended to give the jury an impasse instruction based on the

comment to Rule 22.4 of the Arizona Rules of Criminal Procedure.

Counsel for Huerstel objected to giving any part of the

instruction. The State asked the court to “rethink” the last

paragraph because the jury had not indicated it needed help. The

court overruled all objections and then read the following

instruction to the jury:

Ladies and Gentlemen:
If you are having problems or difficulties in
reaching an agreement, you may wish to identify areas of
agreement and areas of disagreement. You may then wish
to discuss the law and the evidence as they relate to
your areas of disagreement.
If you still have disagreements you may wish to
identify for the court and counsel which issues or
questions of law or fact you would like counsel or the
court to assist you with. If you elect this option,
please list in writing the issues where further
assistance might help bring about a verdict.
I do not wish or intend to force a verdict. We are
merely trying to be responsive to your apparent need for
help. If it is reasonably probable that you could reach
a verdict as a result of this procedure, it would be wise
to give it a try.

The court then excused the jury for the day.

¶9 Later, after counsel and the defendant had left the

courthouse, Juror H. approached the trial judge. Immediately after

5
their conversation, the judge dictated the gist of the encounter to

his court reporter for the record, essentially stating that he had

been “accosted” by the juror asking “how long this had to go on.”

Juror H. also told the judge “she was not the only one that was

being yelled at, she was not the only one holding her position,

that others were also having – had the same position that she did,

whatever that was.” (Emphasis added.) The judge told the juror

that arguments are part of the deliberative process. According to

the judge, the juror mentioned neither her position with respect to

the verdict nor the positions of the rest of the jurors.

¶10 The next day, September 15, the court disclosed the ex

parte communication to counsel. Huerstel moved for a mistrial

based on the length of the deliberations, the ex parte

communication, juror dissension, and the coerciveness of the

instruction the judge had given the jury the day before. He also

requested that the jury be brought in and asked if further

deliberations would result in a verdict. The court denied the

mistrial motion and the request to ask the jury if it had reached

an impasse. The court told counsel that when the jury came in to

start deliberations, it would give the jury a written copy of the

instruction it had given orally the evening before.

¶11 Later that morning, the court received two notes from the

jury. The first note stated the following:

Eleven members of the jury agree that we have not fully

6
 deliberated all the facts of the case and have an open
mind. One juror says that his/her mind is made up and no
amount of discussion will change his/her opinion. Any
suggestions?

(Emphasis added.) The second note came from an individual juror

asking to be removed from the jury “[d]ue to conflicting

personalities and my sanity.”

¶12 In response to the second note, over Huerstel’s

objection, the judge sent a note to the individual juror advising

him or her that a meeting with a social worker could be arranged,

and if it was found that further service was dangerous to the

juror’s mental health, he or she could be excused.2 In response to

the jury’s first question regarding what to do with the single

juror whose mind was made up, the judge sent the following note:

Can you list the specific issues that are a problem with
the juror who allegedly refuses to deliberate any
further? [E].g.[,] One or more of the instructions, some
factual area?

(Emphasis added.)

¶13 Huerstel argued it was inappropriate for the court to ask

the holdout juror to support his or her position. At this stage in

the process, the court knew that the jury was split eleven to one,

with the one juror emphatically stating “no amount of discussion

will change his/her opinion.”

2
Soon after this response was sent, the juror responded
that no mental health counseling was necessary and that the juror
would “tuff [sic] it out.”

7
¶14 The jury responded to the judge’s request as follows:

[Huerstel’s] statement to police proves to me he did not
know specifics about shootings. Hence could not have
been the shooter. Hence invalidates his confession. And
with other evidence lead[s] me to to [sic] my firm
conclusion to all charges.

This is the response of the juror in question. He/she
states that no explanation will change his/her mind.

(Emphasis added.) This response contained two different types of

handwriting, with the first paragraph of the note in one type of

handwriting and the remaining portion of the note in another. At

this point, the court knew the holdout juror favored acquittal and

that no further explanation would change his mind. Counsel for

both parties agreed that the holdout juror was firmly convinced of

his position and that the jury was deadlocked.

¶15 Instead of declaring a mistrial, the court, over

Huerstel’s objection, sent the following note to the jury:

It has been my experience that jurors want to do
justice. It is also my experience that jurors may, in
good faith, disagree about interpretations of the law or
the facts.
The court would propose that the lawyers reargue
these issues for you in an effort to be of assistance.
The court does not insist that you arrive at a verdict
and this is not an effort to coerce or pressure any of
you. However if this suggestion might be helpful it may
be worth it to try. Please let us know?

Following this note, the jury responded saying, “We would

appreciate the opportunity to clarify these points.” This response

came just before the jury broke for lunch that day. The court then

gave the following response to the jury when it returned from

8
lunch:

Thank you for your response. It appeared to be a
response from the jury as opposed to the juror in
question. We need to know if he/she would like anything
reargued and, if so, what. If he/she does not wish to
have the matter reargued it would be inappropriate for us
to do so, since that might easily be construed as
coercive.
While all of us would like to see this case resolved
it may not be possible to do so. If that is the case we
should acknowledge that reality, whether we like it or
not. Please let us know.

(Emphasis added.) In addition to this response to the jury, the

court also answered a factual question that apparently had been

submitted before the lunch break. The jury’s question concerned

the bloodtype of the blood found on various bullet slugs from the

crime scene. The court answered that no evidence of the bloodtypes

was introduced. Therefore, the jury had nothing new to consider.

One hour and twenty minutes after the court submitted the above

responses, the jury returned a verdict.

C.

¶16 The instruction the court gave the jury at the conclusion

of its third full day of deliberations came verbatim from the

comments to Rule 22.4 of the Arizona Rules of Criminal Procedure.

Although the instruction itself may not have been objectionable,

Huerstel argues the timing of the instruction was.

¶17 Rule 22.4 permits judges to assist juries that are at an

impasse. In this case, the jury had asked questions of the court,

but never advised the court it had reached an impasse before the

9
court gave the instruction. The rule states that “[i]f the jury

advises the court that it has reached an impasse,” the court may

ask the jurors if the court or counsel can assist them. Ariz. R.

Crim. P. 22.4. Although the rule gives a trial judge broad

discretion in dealing with juries at an impasse, the rule requires

an affirmative indication from the jury it is in need of help

before assistance may be offered. Cf. People v. Brown, 362 N.E.2d

820, 822 (Ill. App. Ct. 1977) (stating that before giving an

impasse instruction, the better practice is for trial judges to

inquire of the jury whether it is at an impasse if the jury does

not clearly indicate so on its own). Three days of deliberation on

a case that lasted three weeks did not clearly signal that this

jury had reached an impasse. We find nothing in the record

indicating why the trial court thought the jury was at an impasse.

The court violated Rule 22.4 when it gave the jury the impasse

instruction without any clear evidence the jury needed help.3

¶18 Nonetheless, only minutes after the instruction had been

read to the jury, a juror “accosted” the trial judge outside his

chambers, telling him the deliberations were contentious. This

circumstance suggests that the jury may in fact have been in need

of assistance, although it had failed to articulate that fact to

3
Huerstel also argues that the court should not have
offered to allow counsel to reargue portions of the case for the
jury. However, the comments to Rule 22.4 clearly contemplate
allowing judges to do exactly that. See Ariz. R. Crim. P. 22.4
cmt.

10
the court. Consequently, standing alone, the court’s premature

giving of the instruction recommended by the comment to Rule 22.4

does not rise to the level of reversible error. However, we

consider the premature giving of the instruction in our analysis of

whether, under the totality of the circumstances, the trial court

coerced the jury verdict.

¶19 Of more concern is the court’s suggestion to the jury

that it consider having the attorneys reargue certain issues when

the court knew that one juror had twice stated his mind was made up

and no further explanations would be of assistance. The State

relies on State v. Sabala, 189 Ariz. 416, 420, 943 P.2d 776, 780

(App. 1997), which held it was not coercive for a trial court to

offer assistance in the form of an instruction based on Rule 22.4,

although it knew the numerical split of the jury and which way the

jury was leaning. Sabala stands for the proposition that offering

assistance to a jury that has reached an impasse, even when the

trial court knows the jury’s split, is not per se coercive. Id. at

418-19, 943 P.2d at 778-79. Nevertheless, although a trial court’s

awareness of the jury’s split when it offers help under Rule 22.4

does not conclusively establish coercion, such a circumstance is a

factor in the totality of the circumstances analysis.

¶20 The State correctly points out that in Sabala, and in

this case, the trial court gave the jury the recommended Rule 22.4

instruction. Id. at 419, 943 P.2d at 779. But three facts

11
distinguish this case from Sabala. First, when the trial court

twice gave further instructions to the jury advising it that help

was available, it knew the jury was split eleven to one, with the

one juror favoring acquittal. Second, it knew the holdout juror

had clearly expressed the opinion that no further discussions would

change the juror’s mind. Third, none of the latter instructions

tracked the Rule 22.4 language. Although the Rule 22.4 instruction

in the abstract may not be coercive, and as the decision in Sabala

held, it may not be coercive even if the court is aware of the

split, this case goes beyond those principles because the

subsequent instructions specifically focused on the holdout juror.

¶21 The State also cites Sabala for the proposition that when

a jury deliberates further after receiving an instruction based on

Rule 22.4, and considers additional information before returning a

verdict, one must assume the juror in question changed his position

due to the consideration of the additional information. Id. at

420, 943 P.2d at 780. Again, Sabala is distinguishable. Here,

after the court had given the Rule 22.4 instruction, it gave

additional instructions that did not track the suggested language

of the comment to the rule. Moreover, these latter instructions

focused on the holdout juror. Finally, the jury did not have any

new information to consider during its final period of

deliberations. The court’s response to the jury’s question about

blood on bullet slugs from the crime scene told the jurors that no

12
evidence on that issue had been introduced.

¶22 Huerstel’s final argument on this issue is that the trial

court’s instructions asking the holdout juror to explain his

position was coercive. Although the trial court stated it was not

trying to coerce a verdict, we conclude that the holdout juror more

likely than not understood the court’s responses as an indication

that the juror should consider changing his views.

¶23 A similar situation occurred in McCutcheon I, in which

this court held the trial court’s actions were coercive. 150 Ariz.

at 320, 723 P.2d at 669. In that case, the trial court became

aware of a ten to two split in favor of a guilty verdict. Id. at

318, 723 P.2d at 667. The court subsequently questioned the jury

foreman in open court as to whether the jury would be able to reach

a verdict in a reasonable time. Id. at 318-19, 723 P.2d at 667-68.

During this exchange, the court asked the foreman if the jury could

“reach a verdict on one count against the defendant?” Id. at 319,

723 P.2d at 668. This court said the following:

Since the jury knew that the trial judge was aware the
majority had voted for conviction, her repeated questions
sent an inference that she agreed with the majority. We
believe she implicitly communicated to the dissenters the
message that she thought they should change their views,
since that would be the only way, in all likelihood, a
verdict could be reached. Any pressure to decide then
was pressure to decide against the defendant.

Id. at 320, 723 P.2d at 669. Additionally, in State v.

Lautzenheiser, 180 Ariz. 7, 10, 881 P.2d 339, 342 (1994), the court

13
concluded that singling out a juror, even in the polling process,

could potentially cause harm by making it likely the individual

juror will be subject to pressure by his fellow jurors. See also

State v. Roberts, 131 Ariz. 513, 517, 642 P.2d 858, 862 (1982)

(Feldman, J. dissenting) (noting that when inquiry into the

numerical division of the jury reveals a single holdout juror the

likelihood of coercion increases when the court orders further

deliberations). We think this case raises comparable, if not more

significant, concerns.4 Here, the trial court directly addressed

the holdout juror twice in such a way as to effectively communicate

to the juror that the juror should reconsider his views.

¶24 The State, however, argues that the court told the jury

at the beginning of deliberations that the parties were “entitled

to the individual opinion of each juror” and that a juror should

not change his or her opinion “for the mere purpose of reaching a

verdict.” Also, the State points out that the court’s supplemental

instructions to the jury “repeatedly invited them to say so if

deadlock had occurred.” The State thus contends that it would be

4
We note the concern in both McCutcheon I and
Lautzenheiser related to the trial court’s order to conduct further
deliberations. McCutcheon I, 150 Ariz. at 319, 723 P.2d at 668;
Lautzenheiser, 180 Ariz. at 9, 881 P.2d at 341. Here the trial
court did not expressly order further deliberations, but rather did
so implicitly by repeatedly offering assistance to the jury. Thus,
while the trial court’s actions here were not as overt as in the
earlier cases, the court’s comments focusing on the holdout juror
conveyed the implicit message the court thought the holdout juror
should change his view. McCutcheon I, 150 Ariz. at 320, 723 P.2d
at 669.

14
“insulting” to the jurors to presume that any juror felt compelled

to convict. We disagree because the trial judge twice expressly

singled out the holdout juror by first asking the holdout juror to

list specific issues that he had a problem with, and then

subsequently asking that juror what he may want reargued. Under

these circumstances, we believe any admonition from the court that

it was not trying to coerce a verdict was a hollow gesture at

best.5

D.

¶25 As discussed earlier, issues of jury coercion are decided

based on the totality of the circumstances. McCrimmon, 187 Ariz.

at 172, 927 P.2d at 1301. The trial court violated Rule 22.4 when

it gave the recommended impasse instruction before the jury

indicated it had reached an impasse. Such an action signaled the

jury that it was taking too long to reach a verdict. More

significantly, the court’s subsequent directions to the jury had

the effect of twice suggesting that the holdout juror should

reconsider his position, despite being told twice that the juror’s

5
This court has recommended advising jurors not to give up
their honestly held beliefs “whenever further deliberations are
ordered.” State v. McCutcheon, 162 Ariz. 54, 60, 781 P.2d 31, 37
(1989) (McCutcheon II). The trial court here never gave such an
instruction when it gave the additional instructions to the jury.
However, a trial court’s failure to give such an instruction is not
fundamental error. Id.; Roberts, 131 Ariz. at 518, 642 P.2d at
862. Nevertheless, the better practice is for trial courts to
consistently remind jurors not to surrender their honestly held
beliefs whenever a court offers assistance during deliberations.

15
mind was made up. Given these circumstances, we conclude the trial

court’s actions “displaced the independent judgment of the jurors.”

Id. (quoting McCutcheon I, 150 Ariz. at 320, 723 P.2d at 669).

Accordingly, we must remand this case for a new trial.

III.

¶26 Although we reverse and remand for a new trial because

the jury verdict was coerced, we find it necessary to address

several issues that may arise at retrial.

A.

1.

¶27 At trial, Huerstel introduced statements from two inmates

who claimed that Prasertphong had told them he had shot all three

of the victims. In rebuttal, over objection, the State presented

Prasertphong’s confession to the police in which he claimed

Huerstel did all the shooting.6 Huerstel claims error in the

introduction of Prasertphong’s statement. Under the facts of this

case, we agree.

¶28 Arizona Rule of Evidence 806 permits a party to attack a

6
The court redacted portions of Prasertphong’s confession
and allowed a detective, who was present during the confession, to
read the redacted version to the jury. The trial court granted
some of Huerstel’s requests to use portions of Prasertphong’s
testimony at the suppression hearing, and some of his statements to
the police as “re-direct” testimony. Huerstel’s counsel also
questioned the detective at length about Prasertphong’s testimony
at the suppression hearing, at which Prasertphong alleged the
detectives made threats and promises to get him to confess and also
coached him throughout the interrogation.

16
hearsay statement admitted into evidence with “any evidence which

would be admissible for those purposes if [the] declarant had

testified as a witness. Evidence of a statement or conduct by the

declarant at any time, inconsistent with the declarant’s hearsay

statement is not subject to any requirement that the declarant may

have been afforded an opportunity to deny or explain.” Ariz. R.

Evid. 806. While Prasertphong’s statement may have been admissible

under Rule 806 as an inconsistent statement, that does not end the

inquiry.

¶29 This court has expressly held that the admissibility of

evidence under a hearsay exception does not negate consideration of

the Confrontation Clause. State v. Bass, 198 Ariz. 571, 580, ¶ 35,

12 P.3d 796, 805 (2000) (“[T]he hearsay rule and confrontation

clauses are not duplicates. [Citations omitted.] The confrontation

clauses apply uniquely to the defendant in criminal cases to ensure

that testimony of an out-of-court declarant may be given only where

it is invested with ‘particularized guarantees of

trustworthiness.’” (quoting Ohio v. Roberts, 448 U.S. 56, 66

(1980))). The Confrontation Clause protects the right to a fair

trial by requiring that the defendant have an opportunity to

confront any witness who testifies against him. Id. at 580, ¶ 35,

12 P.3d at 805. It permits the hearsay testimony of an unavailable

witness only if it is considered inherently reliable or is proven

reliable based on the circumstances. Id.

17
¶30 Analysis under the Confrontation Clause requires

consideration of two factors. First, the witness must be

unavailable, and second, the basis for admission of the hearsay

testimony must be a “firmly rooted” hearsay exception, or the

testimony must possess such indicia of reliability that it passes

constitutional muster. Roberts, 448 U.S. at 66. The trial court

found that Prasertphong was an unavailable witness. However, the

court failed to consider whether the hearsay statement either fell

within a firmly rooted hearsay exception or possessed the necessary

indicia of reliability.

¶31 One court has held that Rule 806 is a firmly rooted

exception to the hearsay rule. Longfellow v. State, 688 A.2d 1370,

1373 (Del. 1997). However, the determination of whether an

exception is firmly rooted “for Confrontation Clause purposes is a

question of federal law.”7 Lilly v. Virginia, 527 U.S. 116, 125

(1999) (plurality opinion).

¶32 In Lilly, the Court held that “a hearsay exception [is]

firmly rooted if, in light of longstanding judicial and legislative

experience it rest[s] [on] such [a] solid foundatio[n] that

admission of virtually any evidence within [it] comports with the

substance of the constitutional protection.” Id. at 126 (Citations

7
Although Longfellow opines that Rule 806 is firmly rooted
under state and federal law, 688 A.2d at 1373, the case cites no
authority for the proposition and appears to be the only case so
holding.

18
and internal quotation marks omitted.) Rule 806 has an extremely

broad scope. It permits the introduction of “any evidence which

would be admissible” for the purpose of attacking the hearsay

declarant’s credibility. Ariz. R. Evid. 806. But it goes too far

to say that “virtually any evidence” admitted within the broad

scope of Rule 806 would “comport[] with the substance of the

constitutional protection” afforded by the Confrontation Clause.

Lilly, 527 U.S. at 126.

¶33 Although not addressing Rule 806, the Lilly plurality

held that “accomplices’ confessions that inculpate a criminal

defendant are not within a firmly rooted exception to the hearsay

rule.” Id. at 134. Moreover, a number of other Supreme Court

cases have held that exculpatory statements of accomplices taken

during custodial interrogations that inculpate a co-defendant are

inherently unreliable. See, e.g., Williamson v. United States, 512

U.S. 594, 599-600 (1994); Lee v. Illinois, 476 U.S. 530, 540-41

(1986); Bruton v. United States, 391 U.S. 123, 124-25 (1968);

Douglas v. Alabama, 380 U.S. 415, 419-20 (1965).

¶34 Consequently, because Rule 806 is not a firmly rooted

exception, the trial court was obligated to find that the statement

at issue bore sufficient “indicia of reliability” before allowing

the statement to be used. Roberts, 448 U.S. at 66. But nothing in

the record indicates such a finding was made. We conclude that

Prasertphong’s confession is unreliable because it tended to place

19
all the blame on Huerstel and minimized Prasertphong’s culpability.

See Williamson, 512 U.S. at 599-600.

¶35 The State raises two arguments against finding a

Confrontation Clause violation. The State first argues that

Huerstel opened the door to Prasertphong’s statement by introducing

hearsay testimony from Prasertphong. Second, the State argues that

the testimony was admissible under the rule of completeness. See

Ariz. R. Evid. 106. Neither argument finds support in the law.

¶36 The State does not cite a case directly supporting the

“opening the door” proposition.8 We find persuasive two decisions

contrary to the State’s position. Those decisions held that the

admissibility of evidence under Rule 806 does not obviate the trial

court’s obligation to consider the Confrontation Clause.

Longfellow, 688 A.2d at 1372; State v. Lemons, 530 S.E.2d 542, 547

(N.C. 2000), cert. denied, 531 U.S. 1091 (2001). Thus, the State’s

“opening the door” argument fails.

8
The State cites United States v. Nobles, 422 U.S. 225
(1975), on this point. However, Nobles dealt with the appropriate
sanction for violation of a discovery order. Id. at 228-29; see,
e.g., Michigan v. Lucas, 500 U.S. 145, 151-53 (1991) (citing Nobles
for the proposition that probative evidence may be excluded when a
criminal defendant fails to comply with a valid discovery order);
Taylor v. Illinois, 484 U.S. 400, 414 (1988) (citing Nobles in
support of its holding that the trial court may preclude testimony
of a witness as sanction for failure to disclose that witness in
violation of discovery order); United States ex rel. Enoch v. Lane,
581 F. Supp. 423, 430-31 (N.D. Ill. 1984). Although some of the
language in the decision supports the State’s argument, the
decision is not based on the Confrontation Clause and is factually
distinguishable from the present case.

20
¶37 The State relies on State v. Soto-Fong, 187 Ariz. 186,

192, 928 P.2d 610, 616 (1996), to support its argument that the

“rule of completeness” should permit introduction of Prasertphong’s

statement. In Soto-Fong, the testifying witness related hearsay

statements from Soto-Fong’s two co-defendants. Id. The witness

had spoken to the co-defendants on a single occasion about their

involvement in a murder. Id. He subsequently told the police

about a portion of that conversation that tended to exculpate Soto-

Fong. Id. Months later, the witness told the police about another

portion of that same conversation that tended to inculpate Soto-

Fong. Id. Soto-Fong had sought to introduce the first part of the

hearsay statement but at the same time preclude the state from

introducing the second part because it was not self-inculpatory as

to the declarants. Id. at 193, 928 P.2d at 617. The trial court

ruled that if Soto-Fong introduced the first part of the statement,

the state would be permitted to introduce the second part. Id.

This court affirmed that decision. Id. at 194, 928 P.2d at 618.

¶38 We find Soto-Fong distinguishable for the following

reasons. First, the two separate statements in Soto-Fong related

to a single conversation the witness had with the hearsay

declarants. Id. at 192, 928 P.2d at 616. This case involves

completely separate conversations: two with different inmates and

another with the police during a custodial interrogation.

Permitting testimony related to an entirely separate conversation

21
does nothing to complete the other conversation.

¶39 Second, in Soto-Fong, it was impossible to conclude that

the witness’s second statement was unreliable without concluding

the same about the first statement because both statements were

made by the witness to the police “with an eye to obtaining a deal

with the government.” Id. at 195 n.4, 928 P.2d at 619 n.4.

¶40 Finally, the statement Soto-Fong sought to introduce was

arguably inadmissible hearsay because it was not sufficiently self-

inculpatory with regard to the hearsay declarants. Id. at 193, 928

P.2d at 617. The statement of Soto-Fong’s co-defendants that he

wanted to admit as evidence named a third person as one of the

murderers. Id. at 193-94, 928 P.2d at 617-18. In contrast, the

inmate statements Huerstel introduced were admissible because

Prasertphong admitted in those statements that he was solely

responsible for the killings. See Rule 804(b)(3). But

Prasertphong’s confession to the police placed most of the blame

for the murders on Huerstel. As discussed earlier, admission of

such a statement directly implicates the Confrontation Clause.

Consequently, neither of the State’s arguments for avoiding the

application of the Confrontation Clause is convincing.

¶41 Because Prasertphong’s hearsay statement to the police

blaming Huerstel for the murders neither fell within a firmly

rooted hearsay exception nor bore sufficient indicia of

reliability, its admission violated Huerstel’s Confrontation Clause

22
rights.

2.

¶42 At retrial, if the State again seeks to admit

Prasertphong’s statement to the police, the trial court may admit

the statement only for the limited purpose of impeachment. See,

e.g., Tennessee v. Street, 471 U.S. 409, 414, 417 (1985) (holding

testimony that would violate the Confrontation Clause if introduced

for the truth may nonetheless be admissible if offered for the

limited purpose of impeachment); Martinez v. McCaughtry, 951 F.2d

130, 133 (7th Cir. 1991). The express purpose of Rule 806 is to

allow a party to attack the “credibility” of the hearsay declarant.

See Ariz. R. Evid. 806. By its terms, the rule’s limited purpose

is impeachment. But to satisfy the Confrontation Clause, if the

trial court decides to permit the introduction of Prasertphong’s

statement to the police, the court must instruct the jury as to the

limited purpose for which Prasertphong’s statement is introduced.9

9
We note that this court has held that when prior
inconsistent statements are admitted, “such statements may be used
substantively as well as for impeachment.” State v. Acree, 121
Ariz. 94, 97, 588 P.2d 836, 839 (1978). Acree predicated the
substantive use of a prior inconsistent statement on the fact that
the witness who made the statement testified at trial and was
available for cross-examination. Id. Because Prasertphong was not
available as a witness, Acree would not apply here. Rule 806
appears to instruct courts to entertain the fiction that the
hearsay declarant has in fact testified. Ariz. R. Evid. 806
(“[T]he credibility of the declarant may be attacked . . . by any
evidence which would be admissible for those purposes if the
declarant had testified as a witness.” (Emphasis added.)). Had
Prasertphong testified, his prior inconsistent statement would have

23
See, e.g., State v. Sego, 629 A.2d 1362, 1365-66 (N.J. Super. Ct.

App. Div. 1993); Tennessee v. Zirkle, 910 S.W.2d 874, 891 (Tenn.

1995). Although Prasertphong’s statement may be admissible for the

purpose of impeachment, at retrial the trial court should carefully

consider whether the prejudicial effect of its admission may

outweigh its probative value. See Ariz. R. Evid. 403.

B.

¶43 Huerstel raises numerous arguments as to the

voluntariness of his confessions to the police. His first

confession was given to the police detectives the evening of his

arrest, the second to Sergeant Acorn at the jail the following

morning. We hold that neither confession was involuntary.

1.

¶44 Huerstel was seventeen years old at the time of his

confessions. Detectives Olivas and Charlton conducted the initial

interrogations. They advised Huerstel of his Miranda10 rights, and

he waived them. The first interrogation lasted fifteen minutes and

was tape recorded. Huerstel apparently remained handcuffed the

been admissible both as impeachment and as substantive evidence.
Ariz. R. Evid. 801(d)(1)(a); Acree, 121 Ariz. at 97, 588 P.2d at
839. However, extending Rule 806 to an accomplice’s hearsay
statement inculpating a co-defendant creates a Confrontation Clause
problem. Therefore, evidence admitted under Rule 806 in a criminal
case should be admitted only for the limited purpose of
impeachment.
10
See Miranda v. Arizona, 384 U.S. 436 (1966).

24
entire time. Huerstel denied being at the Pizza Hut the previous

night. Instead, he claimed to have been at a billiard hall.

¶45 The detectives concluded the interview and proceeded to

question Prasertphong. In the interim, Huerstel was taken out of

the interview room and kept in a nearby office.

¶46 Following their interrogation of Prasertphong, the

detectives had Huerstel brought back into the room. Huerstel

claimed that before resuming their questioning, the detectives

stood in the hallway and spoke loudly about Huerstel taking the

whole “rap” for the crime and that he would get the death penalty.

¶47 When the detectives came back into the room, their

initial interaction with Huerstel before renewing the interview was

not tape recorded. The detectives claimed they had a short

conversation with Huerstel and played a portion of Prasertphong’s

confession for him. Huerstel alleged that the detectives said they

would go over to his house, handcuff his family, put them on the

ground, and hold guns to their heads unless Huerstel told them

where the clothes he was wearing the night of the murders were.

The detectives denied all of Huerstel’s allegations.

¶48 During the taped portion of the second interrogation,

Huerstel confessed to his involvement in the crimes.11 Huerstel was

11
At trial, Huerstel claimed he was not involved in the
shootings, rather that he lied to the police about his involvement
because he feared what Prasertphong might do to him or his family
if he told anyone Prasertphong was involved in the murders.

25
then transported to jail where he was placed on a five-minute

suicide watch.

¶49 The following morning, Sergeant Acorn, the jail facility

supervisor, asked to speak to Huerstel in his office. Acorn

testified that Huerstel was brought to the office complaining of

feeling sick to his stomach. Once in the office, Huerstel told

Acorn about his involvement in the murders. Huerstel’s statement

was consistent with what he had told the detectives the evening

before. Before speaking to Huerstel, Acorn did not advise him of

his Miranda rights.

2.

¶50 “We start with the presumption that confessions resulting

from custodial interrogation are inherently involuntary; to rebut

that presumption, the state must show by a preponderance of the

evidence the confession was freely and voluntarily made.” State v.

Jimenez, 165 Ariz. 444, 448-49, 799 P.2d 785, 789-90 (1990)

(citations omitted). “When a juvenile confession occurs as a

result of police questioning, the ‘greatest care must be taken to

assure that the admission was voluntary.’” Id. at 449, 799 P.2d at

790 (quoting In re Gault, 381 U.S. 1, 55 (1967)). In determining

whether a confession was voluntary, this court considers the

totality of the circumstances. Id. at 449, 799 P.2d at 790. We

Huerstel also claimed the police threatened him and made promises
of leniency during his interrogation.

26
review the trial court’s determination of voluntariness for abuse

of discretion. State v. (Antoin) Jones, 203 Ariz. 1, 5, ¶ 8, 49

P.3d 273, 277 (2002), opinion supplemented by ___ Ariz. ___, 72

P.3d 1264 (2003).

¶51 A confession may be found involuntary based on any of the

following factors: “(1) impermissible police conduct, (2) coercive

pressures that are not dispelled, or (3) a confession derived

directly from a prior involuntary statement.” State v. Amaya-Ruiz,

166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990) (citation omitted).

a.

¶52 On appeal, Huerstel first complains that Detectives

Olivas and Charlton did not let him speak to his parents. While

the tape recorder was on, Huerstel asked once to call his parents,

and he contended he asked to do so a total of five times before

giving his confession. But the absence of a parent during the

questioning of a juvenile does not itself render a confession

involuntary, rather it is considered as a factor in the totality of

the circumstances analysis.12 Jimenez, 165 Ariz. at 450-51, 799

P.2d at 791-92; State v. Scholtz, 164 Ariz. 187, 188-89, 791 P.2d

1070, 1071-72 (App. 1990).

12
Nor is a request for a parent considered the functional
equivalent of a request for counsel. See Fare v. Michael C. 442
U.S. 707, 724 (1979) (holding a juvenile’s request to speak to a
probation officer is not a per se invocation of Fifth Amendment
rights).

27
¶53 Huerstel cites United States v. Wendy G., 255 F.3d 761,

767-68 (9th Cir. 2001), for the proposition that a juvenile’s

confession to police is involuntary when the police fail to notify

the juvenile’s parents. But that case explicitly held there was no

constitutional violation; rather the court relied solely on a

federal statute that requires parental notification. Id. Federal

statutory law does not apply to this case.

¶54 Huerstel next complains that the detectives repeatedly

lied to him to secure a confession. During the first interrogation

session, the detectives told Huerstel, among other things, that

they had physical evidence linking him to the Pizza Hut when in

fact they did not have such evidence. Such tactics by the police

are permissible so long as the suspect’s will is not overborne.

State v. Carrillo, 156 Ariz. 125, 136, 750 P.2d 883, 894 (1988).

That Huerstel maintained his innocence throughout the fifteen

minutes of initial questioning, despite the detectives’

misrepresentations about the evidence, demonstrates that his will

was not overborne.

¶55 Huerstel also claims the detectives induced his

confession with promises of leniency by telling him it would be

better for him to tell the truth. Although confessing was not

“better” for Huerstel, this court has held that such advice from

the police “when unaccompanied by either a threat or promise does

not render a subsequent confession involuntary.” Amaya-Ruiz, 166

28
Ariz. at 165, 800 P.2d at 1273 (citations omitted).

¶56 Additionally, Huerstel asserts the detectives threatened

him “off-tape” during his interrogation in a number of ways.13

Detective Olivas testified that he did not threaten Huerstel.

Although Detective Charlton testified he made no threats regarding

the death penalty, during a defense deposition he said he could not

remember whether he made such a threat. Nonetheless, the trial

court did not find Huerstel’s assertions credible.

¶57 Because this case involves a juvenile confession, when

applying the totality of the circumstances analysis, this court

must consider that juveniles may be more susceptible to certain

police tactics than adults and as such their will may be more

easily overborne. Jimenez, 165 Ariz. at 449, 799 P.2d at 790.

Courts consider the “juvenile’s age, experience, education,

background, and intelligence” in evaluating the voluntariness of a

juvenile’s confession. Fare v. Michael C., 442 U.S. 707, 725

(1979).

¶58 Huerstel was a seventeen-year-old high school student of

slightly below average intelligence. He had only one previous

police encounter involving a curfew violation. However, nothing in

13
The trial court chastised the officers for having
unrecorded conversations. We share the trial court’s concern and
again strongly urge that the police record their interrogations of
suspects in their entirety. See Jones, 203 Ariz. at 7, ¶ 18, 49
P.2d at 279.

29
his background demonstrates that he was incapable of understanding

his rights or waiving them. The trial court found Huerstel’s

confession notable for its lack of emotional content, inferring

that his maturity was such that he understood his rights.

Moreover, the trial court did not find Huerstel’s allegations of

threats or promises of leniency credible.

¶59 Because the trial court’s decision rested almost

entirely on an assessment of Huerstel’s and the detectives’

credibility, and sufficient evidence supports its findings, we

cannot say the trial court abused its discretion in finding

Huerstel’s statement to the detectives voluntary. State v.

Jerousek, 121 Ariz. 420, 424, 590 P.2d 1366, 1370 (1979).

b.

¶60 Huerstel also claims his confession to Sgt. Acorn at the

jail the morning after his arrest was involuntary. He argues that

Sgt. Acorn held himself out as mental health advisor when he took

Huerstel’s statement. Huerstel further argues he was not given his

Miranda warnings before making the statement.

¶61 The trial court ruled that although Sgt. Acorn failed to

give Huerstel his Miranda warnings, the statement was nonetheless

given without violating traditional standards of voluntariness.

State v. Walker, 138 Ariz. 491, 495, 675 P.2d 1310, 1314 (1984).

Acorn’s testimony was presented in rebuttal. This court has held

that a voluntary confession obtained in violation of Miranda may be

30
used to impeach a witness. Id. Consequently, even though

Huerstel’s Miranda rights were violated, on retrial the confession

to Acorn would be admissible as impeachment.

¶62 While Huerstel now claims his confession was coerced

because Acorn held himself out to be a mental health advisor, he

made no such claim at the voluntariness hearing. In fact, he

denied ever making a statement to Acorn. No testimony at the

voluntariness hearing asserted that Acorn was a mental health

advisor or evaluator. Testimony related to Acorn’s duties at the

jail came out during trial.14 In reviewing the voluntariness of a

statement, we consider only the evidence presented at the

voluntariness hearing and nothing presented at trial. State v.

Flower, 161 Ariz. 283, 286 n.1, 778 P.2d 1179, 1182 n.1 (1989).

¶63 Finally, Huerstel challenges the admissibility of his

confession to Acorn on the ground that having Huerstel brought to

Acorn’s office to talk was “an action on the part of police

reasonably likely to elicit an incriminating response.” Rhode

Island v. Innis, 446 U.S. 291, 300-01 (1980). But the issue in

Innis concerned whether the defendant was interrogated for Miranda

purposes. Id. at 298. The trial court determined that Acorn

conducted an interrogation, and because of that, Huerstel’s Miranda

14
That testimony only indicated Acorn was responsible for
the physical and mental well-being of the prisoners; he made no
statement that he was a mental health advisor or therapist of any
kind.

31
rights were violated. The trial court nonetheless held the

confession was voluntary, a conclusion that the record supports,

making the confession admissible as impeachment evidence.

C.

¶64 Huerstel argues very generally that the jury should not

have been allowed to hear the questions detectives asked him during

his confession when the tape of that confession was played. During

a hearing on the matter, the court redacted much of what Huerstel

had asked to be removed.

¶65 On appeal, Huerstel fails to specify any particular

additional question by the police that should have been excluded.

Rather he appears to find fault in the fact that the jury heard any

of the police questions. But juries that are permitted to hear

taped confessions are also permitted to hear the questions police

ask. State v. Miller, 186 Ariz. 314, 322, 921 P.2d 1151, 1159

(1996) (finding questions not offered for truth but to establish

fact of questioning); State v. Ceja, 113 Ariz. 39, 42, 546 P.2d 6,

9 (1976) (finding questions offered only for their effect on the

hearer); State v. Weigel, 145 Ariz. 480, 481, 702 P.2d 709, 710

(App. 1985) (finding questions offered merely to give interrogation

context). The trial court did not err in allowing the jury to hear

the questions posed by the detectives.

D.

32
¶66 Evidence presented by the State showed that a few days

before the murders in this case, Huerstel had spoken to two friends

at school about his intention to rob an AutoZone on the weekend of

the murders. At trial, Huerstel denied ever making such comments.

¶67 Before trial, Huerstel filed a motion in limine arguing

that, under Arizona Rule of Evidence 404(b), “any evidence relating

to an AutoZone” should be precluded. At a hearing on the motion,

the court ruled that “[t]he evidence concerning the AutoZone ‘bad

act’ [did] not rise to a preponderance of the evidence much less to

the level of clear and convincing evidence.” But when the State

offered the testimony of Huerstel’s friends at trial, the court

ruled that although such testimony was not admissible under Rule

404(b), it was admissible under Rule 803(3), as evidence of

Huerstel’s then-existing state of mind. Huerstel first claims Rule

803(3) was not the appropriate hearsay exception.

¶68 Huerstel’s contention that the testimony was inadmissible

under Rule 803(3) is incorrect. Rule 803(3) permits the admission

of a “statement of the declarant’s then existing state of

mind . . . (such as intent, plan, [or] motive).” Ariz. R. Evid.

803(3). Huerstel’s statements to his high school friends were

clearly statements of a plan or intent.

¶69 Huerstel next contends the testimony was not admissible

under Rule 803(3) because “none of the hearsay exceptions provide

any relief from the limitations on relevance under Rules 401-411.”

33
Huerstel appears to argue that the testimony was not admissible

under Rule 803(3) because it was not also admissible under Rule

404(b). Huerstel cites no case in support of this contention.

This argument is meritless because Rule 404(b) concerns conduct and

Rule 803(3) concerns statements. Huerstel argues that planning a

robbery is conduct. However, the AutoZone testimony was not

evidence of Huerstel’s conduct, but evidence of what he said. As

such, Rule 803(3) controls the inquiry.15

¶70 Huerstel finally argues that the testimony was used to

show his intent and that it was not admissible for that purpose

because his intent was never an issue in the case. The issue of

the admissibility of the AutoZone testimony was twice argued before

the trial court and on neither occasion did Huerstel specifically

argue the intent issue. Thus, the argument is waived. State v.

Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991).

E.

¶71 Huerstel claims the trial court unfairly permitted the

State to impeach his trial testimony with statements he made during

the voluntariness hearing. Huerstel alleged at the voluntariness

hearing his confession to the detectives was invalid because he was

15
Huerstel repeats his argument that this was evidence of
a prior bad act by arguing that the trial court erred in refusing
to give the jury a “prior bad act” instruction. Because the
evidence was admitted under Rule 803(3) as evidence of Huerstel’s
then existing state of mind, a jury instruction on the use of prior
bad act evidence would have been wholly irrelevant.

34
intimidated and threatened by them. However, at trial, Huerstel

also alleged he confessed because he feared reprisals from

Prasertphong. The State sought to point out that inconsistency.

¶72 Huerstel argues that the sole purpose of the

voluntariness hearing was to evaluate police misconduct to

determine if the State had violated Huerstel’s rights. Huerstel

claims Prasertphong was not mentioned during the voluntariness

hearing because any intimidation or coercion by him would have been

irrelevant. Thus, the State’s questioning him about his failure to

mention Prasertphong’s threats during the voluntariness hearing

misled the jury and violated his rights under the Sixth and

Fourteenth Amendments.

¶73 The court overruled Huerstel’s objection to this line of

questioning at trial, reasoning that the subject of the pre-trial

hearing was the voluntariness of Huerstel’s confession and that the

confession could have been coerced by the police or Prasertphong.

But under Colorado v. Connelly, 479 U.S. 157, 165 (1986), a

confession is involuntary only if it results from coercive activity

by the state. See, e.g., State v. Poyson, 198 Ariz. 70, 75, ¶ 10,

7 P.3d 79, 84 (2000), cert. denied, 531 U.S. 1165 (2001) (citing

Connelly); State v. Lee, 189 Ariz. 590, 601, 944 P.2d 1204, 1215

(1997) (same). Moreover, Connelly held that “[t]he most outrageous

behavior by a private party seeking to secure evidence against a

defendant does not make that evidence inadmissible under the Due

35
Process Clause.” 479 U.S. at 166. Consequently, any threats by

Prasertphong to coerce Huerstel into confessing would have been

irrelevant at the voluntariness hearing in assessing the

voluntariness of Huerstel’s confession unless the police had known

of those threats and exploited them. See id. at 164-65.

Therefore, the trial court erred in ruling that the State could

question Huerstel about his failure to testify at the voluntariness

hearing about Prasertphong’s alleged threats.

F.

¶74 Huerstel raises a number of claims related to the jury

instructions in this case. We find it unnecessary to address them

because the claims he raises are either meritless or largely

dependent upon the evidence that will be developed at retrial.16

IV.

¶75 We reverse Huerstel’s convictions and sentences on all

counts and remand the case for a new trial.

Michael D. Ryan, Justice

CONCURRING:

16
Because we reverse Huerstel’s convictions, we also
decline to address any sentencing issues.

36
Charles E. Jones, Chief Justice

Ruth V. McGregor, Vice Chief Justice

Rebecca White Berch, Justice

Cecil B. Patterson, Jr., Judge* (Retired)

* Justice Andrew D. Hurwitz recused himself from this case. Judge
Cecil B. Patterson, Jr., of the Arizona Court of Appeals, Division
One, was designated to sit in his place pursuant to Article 6,
Section 3, of the Arizona Constitution.

37