State v. MacHado

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
________________________________________________________________

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-

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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

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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

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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

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“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.

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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

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CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Michael D. Ryan, Justice (Retired)

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