IN THE SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Supreme Court
) No. CR 01-0045-PR
Appellee, )
) Court of Appeals
) No. 1 CA-CR 99-0837
v. )
) Maricopa County
LARRY LAVELLE GIBSON, ) Superior Court
) No. CR 96-07148
Appellant. )
) O P I N I O N
______________________________)
Appeal from the Superior Court of Maricopa County
The Honorable Gregory H. Martin, Judge
REMANDED FOR NEW TRIAL
_________________________________________________________________
Court of Appeals, Division One
Memorandum Decision
REVERSED
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JANET NAPOLITANO, Attorney General Phoenix
by Ginger Jarvis, Assistant Attorney General,
Criminal Appeals Section
Attorneys for Appellee
MARICOPA COUNTY PUBLIC DEFENDER Phoenix
by Charles R. Krull, Deputy Public Defender
Attorneys for Appellant
_________________________________________________________________
C O R C O R A N, Justice (Retired)
1. Introduction
¶1 In 1995, Larry Lavelle Gibson (defendant) was charged
with first degree murder for a 1974 murder. Prior to trial,
defendant gave notice of his intent to introduce evidence that
other persons had committed the crime. See Rule 15.2(b), Arizona
Rules of Criminal Procedure. At a pretrial hearing, the trial
court granted the state’s motion precluding evidence that someone
else might have committed the murder. After a 7-day trial, a jury
convicted defendant of first degree murder. Defendant was
sentenced to life imprisonment. On direct appeal, defendant
contended that the trial court erred in precluding evidence of
third-party culpability. In a split decision, the court of appeals
affirmed. We granted review to clarify the appropriate test for
admission of third party culpability evidence. We have
jurisdiction pursuant to Arizona Constitution, article 6, § 5(3),
and A.R.S. § 13-4031.
2. Factual and Procedural History
(a) 1974 Investigation
¶2 On January 15, 1974, two Phoenix police officers arrived
at 17 East Thomas Road and found the body of Taylor Courtney inside
apartment 13. The cause of death was three gunshot wounds to the
head. Officials estimated the death had occurred six days earlier.
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The body had been brutalized by the post mortem removal of his
penis, scrotum, and testes. Further investigation uncovered
numerous fingerprints, some bloody, in and around the apartment and
inside the victim’s car.
¶3 During the investigation, two individuals, D.B. and J.W.,
were identified as primary suspects. Both told officers they had
been with the victim shortly before the murder. Both gave alibis
that could not be corroborated. Both knew substantial information
about the crime scene which had not previously been made public.
D.B. pointed to J.W. as the possible perpetrator because of an
alleged sexual relationship between the victim and J.W.’s wife.
J.W. suffered severe mental health problems shortly after the
murder, and police officers noted D.B. was acting extremely nervous
during an interview.
¶4 The victim, D.B., and J.W. were all from the same small
Arizona town. Defendant was also from that same town. However,
during the 1974 investigation, officers did not interview, nor
suspect defendant, or know of his existence.
(b) 1995 Investigation
¶5 The case lay dormant until 1995 when officers, with the
help of the Automated Fingerprint Identification System (AFIS),
matched one of the non-bloody fingerprints lifted from the inside
of the front screen door of the victim’s apartment with that of
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defendant. Defendant was interviewed and denied going to the
victim’s apartment and killing the victim.
¶6 From April to June 1996, Defendant’s ex-wife was
interviewed by police officers on several occasions. She told
officers about a package defendant had given her two months after
the murder. Over the course of the interviews, her recollection of
the contents of this package evolved from liver to a poultry neck
to a penis. Defendant was then charged with the murder.
¶7 At a pretrial hearing, defendant argued that in light of
the limited circumstantial evidence against defendant, the court
should allow evidence of D.B.’s and J.W.’s potential involvements,
specifically: (1) the times at which D.B. and J.W. last saw the
victim, (2) the false alibis, (3) their overwhelming knowledge
about the crime scene which had not yet been made public, (4) the
extreme nervousness of D.B., and (5) J.W.’s mental health issues
after the murder. The trial court precluded all inculpatory
evidence about D.B. and J.W. In his ruling, the trial judge
stated, “there is nothing in the defendant’s proffer that has an
inherent tendency to connect either D.B. or J.W. with the actual
commission of the murder of the victim. Admitting the evidence
. . . has the real potential to unfairly prejudice the State and to
confuse the jury.”
¶8 At trial defendant was convicted, and on appeal he argued
that preclusion of evidence pointing to D.B. and J.W. was
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inappropriate. The court of appeals held there was no abuse of
discretion because the evidence did not have an inherent tendency
to connect either D.B. or J.W. with the murder.
3. Discussion
¶9 The court of appeals used an “inherent tendency” test,
which it apparently took from our decision in State v. Fulminante,
161 Ariz. 237, 778 P.2d 602 (1988). In Fulminante we stated,
Before a defendant may introduce evidence that another
person may have committed the crime, the defendant must
show that the evidence has an inherent tendency to
connect such other person with the actual commission of
the crime. Vague grounds of suspicion are not
sufficient.
161 Ariz. 237, 252, 778 P.2d 602, 617 (quoting State v. Williams,
133 Ariz. 220, 231, 650 P.2d 1202, 1213 (1982)).
¶10 We do not find, and this court did not intend, a special
standard or test of admissibility to be gleaned from Fulminante.
¶11 In Fulminante the defendant was charged with the murder
of his 11-year-old stepdaughter. The defendant attempted to
introduce evidence that a neighbor of the victim drove a
motorcycle, owned a .357 magnum handgun, previously attempted to
kill a police officer, and was suspected of committing crimes
against children. The trial court precluded the evidence, and the
defendant was found guilty and sentenced to death. On the issue of
third-party culpability evidence, we stated that the evidence of
the neighbor’s ability to commit the crime was insufficient by
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itself to connect the neighbor with the murder and therefore found
there was no abuse of discretion. See Fulminante, 161 Ariz. at
252, 778 P.2d at 617.
¶12 The appeal before us presents the opportunity to clarify
the manner of determining admissibility of evidence of third-party
culpability. The appropriate analysis is found in Rules 401, 402,
and 403, Arizona Rules of Evidence.
¶13 Initially, the court must determine if the proffered
evidence is relevant. “Relevant evidence means evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence.” Rule 401. “All relevant
evidence is admissible . . . . Evidence which is not relevant is
not admissible.” Rule 402. Once the evidence is determined
relevant, it is admissible unless “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.” Rule 403.
¶14 We note that Fulminante did not make reference to Rules
401, 402, or 403.
(a) Rules 401 and 402
¶15 We find the discussion in Winfield v. United States, 676
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A.2d 1 (D.C. 1996), particularly helpful in analyzing relevancy of
third-party culpability evidence in a criminal context. In
Winfield, the court addressed similar concerns regarding a “clear
link” standard of third-party culpability evidence. That court
rejected the “clear link” standard because it put the focus on the
third party’s guilt or innocence. See 676 A.2d at 4. The court
then concluded that the proper focus should be on “the effect the
evidence has upon the defendant’s culpability” and the evidence
“need only tend to create a reasonable doubt that the defendant
committed the offense.” 676 A.2d at 4 (quoting in part Johnson v.
United States, 552 A.2d 513, 516 (D.C. 1989)).
¶16 Similarly, we find the use of the phrase “inherent
tendency” unhelpful and agree with Judge Gerber’s description of
inherent tendency in his dissent:
This language is unclear to a fault: for one thing, a
“tendency” does not “inhere”; for another, such tendency
seems a matter of weight and credibility of evidence.
Whatever its meaning, this rule forces a defendant to
prove to a judge’s satisfaction that another person
“really” committed the crime or was “largely” connected
to it.
The proper focus in determining relevancy is the effect the
evidence has upon the defendant’s culpability. To be relevant, the
evidence need only tend to create a reasonable doubt as to the
defendant’s guilt.
(b) Rule 403
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¶17 When applying the balancing test under Rule 403, ARIZONA
PRACTICE: LAW OF EVIDENCE should be considered:
[I]t is first necessary to assess the probative value of
the evidence on the issue for which it is offered. The
greater the probative value, of course, and the more
significant in the case the issue to which it is
addressed, the less probable that factors of prejudice or
confusion can substantially outweigh the value of the
evidence. If the issue is not in dispute, or if other
evidence is available of equal probative value but
without the attendant risks of the offered evidence, then
a greater probability of substantial outweighing exists.
Because this is a weighing of factors that cannot easily
be quantified, substantial discretion is accorded the
trial judge . . . .
The remaining factors in Rule 403, confusion of the
issues, misleading the jury, and wasting of time, are
less frequently the subject of judicial decision.
Wigmore described them well:
The notion here is that, in attempting to
dispute or explain away the evidence thus
offered, new issues will arise as to the
occurrence of the instances and the similarity
of conditions, new witnesses will be needed
whose cross-examination and impeachment may
lead to further issues; and that thus the
trial will be unduly prolonged, and the
multiplicity of minor issues will be such that
the jury will lose sight of the main issue,
and the whole evidence will be only a mass of
confused data from which it will be difficult
to extract the kernel of controversy.
1 Joseph M. Livermore, Robert Bartels, & Anne Holt Hameroff, ARIZONA
PRACTICE: LAW OF EVIDENCE (formerly UDALL ON EVIDENCE) § 403 at 82-83,
84-86 (4th ed. 2000) (footnotes omitted) (quoting 2 WIGMORE ON EVIDENCE
§ 443 at 528-529 (Chadbourn rev. 1979)); see also 1 MCCORMICK ON
EVIDENCE § 185 at 779-785 (4th Kenneth S. Broun ed. 1992).
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¶18 The New York Court of Appeals recently dealt with an
issue similar to that in Fulminante. People v. Primo, like
Winfield, dealt with a coordinate catch phrase: “clear link.”
Primo said:
To the extent that the “clear link” standard implies no
more than an abbreviation for the conventional balancing
test, it presents no problem. A review of clear link
cases reveals that the courts would very likely have made
the same ruling regardless of the nomenclature. “Clear
link” and similar coinages, however, may be easily
misread as suggesting that evidence of third-party
culpability occupies a special or exotic category of
proof.
753 N.E.2d 164, 168, 728 N.Y.S.2d 735, 739 (2001).
4. Conclusion
¶19 We hold that Rules 401, 402, and 403, Arizona Rules of
Evidence, set forth the proper test for determining the
admissibility of third-party culpability evidence. This test must
be applied anew to the facts in each case.
¶20 The judgment of the court of appeals is therefore
reversed. The case is remanded for a new trial not inconsistent
with this opinion.
_________________________________________
Robert J. Corcoran, Justice (Retired)
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CONCURRING:
____________________________________
Charles E. Jones, Chief Justice
____________________________________
Ruth V. McGregor, Vice Chief Justice
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Stanley G. Feldman, Justice
____________________________________
Thomas A. Zlaket, Justice
NOTE: Due to a vacancy on this court and pursuant to
Ariz. Const. art VI, § 3, the Honorable Robert J.
Corcoran, Justice (Retired) was designated to sit with
the court in the disposition of this matter.
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