State v. Scott

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DONALD LEE SCOTT, Appellant.

No. 1 CA-CR 21-0024
FILED 2-24-2022

Appeal from the Superior Court in Maricopa County
No. CR2018-106340-001
The Honorable Suzanne E. Cohen, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Peter B. Swann and Judge D. Steven Williams joined.

B A I L E Y, Judge:

¶1 Donald Lee Scott appeals his conviction and sentence for first-
degree murder. For the following reasons, we affirm.

FACTS 1 AND PROCEDURAL HISTORY

¶2 Late one evening in December 1988, Scott took his then-wife,
Diana, on a drive through the desert near the Cave Creek Highway. The
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couple rarely went to the desert, and then only in the daytime to practice
shooting Scott’s guns.

¶3 About half a mile south of the highway, Scott pulled directly
up to the body of a deceased woman, later identified as Amy. After walking
out to Amy’s body, Scott calmly informed Diana that the woman had visible
gunshot wounds. Scott drove to the nearest phone and contacted law
enforcement.

¶4 Officers arrived and Scott easily directed them to Amy, even
though the area was particularly dark and desolate. Scott told them that
they happened upon Amy while driving around in the desert. Scott
claimed he knew the area because it was where he met Diana years earlier,
a fact she would later refute. Shortly after finding Amy’s body, Scott
instructed Diana to tell officers they were together the entire day leading
up to their discovery. At that time, however, Scott was not considered a
suspect and would not be contacted again until years later.

¶5 At the crime scene, officers saw that Amy was lying in a pool
of blood and had suffered multiple gunshot wounds. Amy’s pants were
partially open, she had no underwear, and her shoes were coming off her

1 We view and thus recount the facts in the light most favorable to
sustaining the jury’s verdict. See State v. Payne, 233 Ariz. 484, 509, ¶ 93
(2013).

2 We use pseudonyms to protect the privacy of the victim and witnesses.

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feet. It appeared she had been shot and then dragged a short distance. A
medical examiner determined that Amy was shot three times, including one
gunshot wound to the back of her head. The evidence suggested that Amy
died the day her body was discovered. The examiner found premortem
bruising on Amy’s legs and an abrasion on her genitals. The examiner
collected a swab from Amy’s vaginal canal for future testing.

¶6 Over the next 30 years, as DNA technology advanced,
forensic scientists continued to test Amy’s vaginal swab. The scientists
found sperm cells with intact “tails” on the swab, which do not typically
survive past 24 hours of ejaculation. The scientists eventually identified a
single source DNA profile in the sperm cells. In 2018, a cold case detective
matched Scott’s DNA to the DNA profile on the vaginal swab and Amy’s
clothing.

¶7 The State charged Scott with one count of first-degree murder,
alleging alternate theories of premeditated and felony murder. At trial,
Defense counsel argued that Scott had consensual sex with Amy days
before her murder, he had no contact with her after that encounter, and he
was not involved in her murder. The jury returned a guilty verdict. Nine
jurors found premeditated and felony murder, two jurors found
premeditated murder, and one juror found felony murder. The superior
court sentenced Scott to life imprisonment with the possibility of release
after 25 years.

¶8 We have jurisdiction over Scott’s timely appeal pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and 13-4033(A).

DISCUSSION

I. Denial of Motion to Admit Hearsay Statements

¶9 Scott argues the superior court erred by denying his motion
to admit hearsay statements under Arizona Rule of Evidence 807(a), the
residual hearsay exception. He claims the court’s ruling violated his right
to due process. We review the court’s ruling on the admissibility of
evidence for an abuse of discretion, and related constitutional challenges de
novo. See State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006).

¶10 Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted, and is presumptively inadmissible. See Ariz. R.
Evid. 801(c), 802. Under the residual hearsay exception, a hearsay
statement may be admitted if: “(1) the statement is supported by sufficient

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guarantees of trustworthiness—after considering the totality of
circumstances under which it was made and evidence, if any, corroborating
the statement; and (2) it is more probative on the point for which it is offered
than any other evidence that the proponent can obtain through reasonable
efforts.” Ariz. R. Evid. 807(a). To qualify, the statement “must be so
trustworthy that adversarial testing would add little to its reliability.” Idaho
v. Wright, 497 U.S. 805, 806 (1990). As a result, the exception applies “only
in rare and exceptional circumstances.” State v. Luzanilla, 179 Ariz. 391, 397
(1994).

¶11 In determining whether the residual hearsay exception
applies, we may consider spontaneity, consistency, knowledge, mental
state, motivation to lie, criminal history, and the time and place statements
were made. See State v. Burns, 237 Ariz. 1, 20, ¶¶ 69-70 (2015); State v. Cruz, 218 Ariz. 149, 162, ¶¶ 62-63 (2008); State v. Valencia, 186 Ariz. 493, 498 (App.
1996).

¶12 Before and during trial, Scott moved to admit hearsay
statements made by Amy’s friends and acquaintances, who had either
passed away or suffered memory loss. He argued portions of their
interview transcripts, along with handwritten notes by an interviewing
detective, were admissible under the residual hearsay exception. Scott
sought to admit statements regarding Amy’s conduct and physical
appearance in the days before her murder, her sexual history and
orientation, and any suspects that may have been involved in her murder.
After hearing argument, the superior court denied the motion.

¶13 All of the relevant statements were made in response to
questioning by detectives, generally reducing their likelihood of
trustworthiness. See Burns, 237 Ariz. at 20, ¶ 70. Most of the statements
were speculative, emotionally charged, inconsistent or muddled, and based
on second-hand information. And, many of the witnesses admitted to
involvement in unrelated criminal activity and issues with substance abuse.
To the extent any of the statements met the standard of trustworthiness, the
documents containing those statements did not. Although the interview
transcripts and notes were likely created by law enforcement in the initial
investigation, they do not list the author of the document, the manner of
transcription, or any avowals as to their accuracy. Lacking any indicia of
reliability, the documents and the statements contained therein lacked the
requisite guarantees of trustworthiness. This case did not involve the “rare
and exceptional circumstances” in which the residual hearsay exception can
be applied. See Luzanilla, 179 Ariz. at 397.

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¶14 Beyond that, any error in excluding the statements would
have been harmless given the overwhelming evidence of Scott’s guilt,
including a highly improbable explanation for finding Amy’s body and
DNA evidence linking him to her murder. See State v. Bible, 175 Ariz. 549,
590 (1993) (finding error harmless where improper evidentiary ruling had
no impact on the jury’s guilty verdict).

II. Denial of Motion to Dismiss for Pre-Indictment Delay

¶15 Scott next argues the pre-indictment delay violated his due
process right and the superior court erred by denying his motion to dismiss.
We review the court’s ruling on a motion to dismiss for pre-indictment
delay for an abuse of discretion. See State v. Lemming, 188 Ariz. 459, 460-63
(App. 1997). We review due process claims de novo. See State v. Rosengren, 199 Ariz. 112, 116, ¶ 9 (App. 2000).

¶16 The primary guarantee against “overly stale criminal
charges” is the relevant statute of limitations. United States v. Ewell, 383 U.S.
116, 122 (1966). A charge of first-degree murder has no such limitation. See
A.R.S. § 13-107(A). Due process provides an additional, although limited,
protection against unreasonable delay. See United States v. Lovasco, 431 U.S.
783, 789 (1977). To prevail on a due process claim, the defendant must show
1) the State intentionally delayed filing charges to harass or gain a tactical
advantage over the defendant, and 2) the delay caused the defendant actual
prejudice. See State v. Broughton, 156 Ariz. 394, 397 (1988). This two-prong
test, adopted by our Supreme Court, has remained the method of
evaluating the implication of pre-indictment delay on a defendant’s right
to due process for over 40 years. See State v. Torres, 116 Ariz. 377, 378 (1977);
State v. Marks, 113 Ariz. 71, 74 (1976).

¶17 Before trial, Scott moved to dismiss for pre-indictment delay
and argued, in pertinent part, that Arizona’s two-prong test unfairly places
the burden on defendants to prove intentional delay. Scott asked the
superior court to forgo well-established Arizona law and perform a
balancing test that shifts the burden to the State. After the State responded
in objection, the court issued a minute entry denying the motion. Scott
raises the same claim on appeal, arguing Arizona’s two-prong test for
evaluating pre-indictment delay violates the due process guarantees of the
United States and Arizona constitutions.

¶18 Scott asks for a ruling we lack the authority to provide. Since
adopting the two-prong test, our Supreme Court has cast no doubt on the
constitutionality of that approach in its subsequent decisions. See State v.

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Lacy, 187 Ariz. 340, 346 (1996); State v. Williams, 183 Ariz. 368, 379 (1995);
Broughton, 156 Ariz. at 397. We are bound by those decisions, and any
departure falls within “the exclusive purview of that court.” State v.
McPherson, 228 Ariz. 557, 563, ¶ 16 (App. 2012). We have previously
rejected a similar request to ignore or overturn the two-prong test and Scott
provides no basis for us to deviate from that rationale. See State v. Romero, 236 Ariz. 451, 454, ¶ 7 (App. 2014), vacated in part on other grounds, 239 Ariz.
6 (2016).

¶19 Scott concedes that he cannot demonstrate intentional delay
under Arizona’s two-prong test. Because he has failed to make this
showing, we cannot find reversible error and need not address whether the
delay caused him prejudice. See Broughton, 156 Ariz. at 397. Even so, Scott
has not met the heavy burden of proving actual, non-speculative prejudice.
Id. at 397-98. He claims the loss of witness testimony, either through their
death or memory loss, resulted in actual prejudice. Scott has failed to
establish such testimony would have been admissible, credible, and
beneficial to his defense. See State v. Dunlap, 187 Ariz. 441, 451 (App. 1996)
(finding loss of witnesses insufficient to establish prejudice without a
showing their testimony would have impacted the verdict). On this record,
we see no due process violation. The superior court properly denied the
motion to dismiss.

¶20 Lastly, Scott argues the superior court’s failure to conduct a
hearing or allow time for a reply constituted error. Scott was not, as he
contends, deprived of a meaningful opportunity to litigate the issue. His
motion adequately preserved the issue on appeal, and nothing from the
record suggests the court improperly applied the law. See State v. Trostle, 191 Ariz. 4, 22 (1997) (“Trial judges are presumed to know the law and to
apply it in making their decisions.” (citation omitted)); see also Ariz. R. Crim.
P. 1.9(d)-(e) (providing courts with the authority to set hearings and waive
procedural requirements). We see no error.

CONCLUSION

¶21 For the foregoing reasons, we affirm Scott’s conviction and
resulting sentence.

AMY M. WOOD • Clerk of the Court
FILED: AA

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