State v. Srout

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9NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. DAVID WAYNE SROUT, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 12/10/09 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 08-0284 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR2006-1144 The Honorable Robert R. Moon, Judge AFFIRMED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix Dana P. Hlavac, Mohave County Public Defender by Jill L. Evans, Deputy Public Defender Attorneys for Appellant Kingman I R V I N E, Judge ¶1 for David Wayne Srout ( Srout ) appeals his convictions first-degree murder, armed robbery, and hindering prosecution of murder in the first degree. Srout argues that the trial court abused its discretion in denying his motion for a new trial by precluding exculpatory statements by an unavailable accomplice pursuant to Rule 804(b)(3) of the Arizona Rules of Evidence. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY 1 ¶2 In August, 2005, Srout and Shannon Blair ( Blair ) lived with Gene Tate ( Tate ), a friend of Srout. 2 Behind Tate s house was a small shed, containing a room with an engine hoist, a general living room area, and an office area. 3 Srout, Tate, and Withers spent the majority of their time in this shed. On the evening of August 3, 2005, Tate informed Blair and Srout that Victim was planning on buying a car with cash from Withers. While Withers and Victim were on a test-drive, Tate instructed Blair to hide in a small area in the rear of the shed with a crow bar and wait for them to return. ¶3 When Victim and Withers entered the shed, Blair hit Victim in the face with the crow bar. Tate then shoved Victim 1 We present the facts in the light most favorable to sustaining the jury s verdict. State v. Tucker, 205 Ariz. 157, 160 n.1, 68 P.3d 110, 113 n.1 (2003). 2 Tate s wife and children, Srout s son, and Mike Withers ( Withers ), another friend of Srout and Tate, also lived at Tate s house. 3 Sally Roberts, Tate s previous girlfriend, testified that [a person] could hear anybody in that shed anywhere. It s that small. 2 into a different room. As they struggled, Srout handed Tate a pillow to place over Victim s mouth. Tate then grabbed a knife and cut Victim s throat, which ultimately resulted in Victim s death. After Victim was wrapped in a blanket and carpet, Blair and Srout drove to a desert area near the airport, dug a ditch, and buried Victim. Blair and Srout then met convenience store and gave him Withers car. 4 Blair and Srout from the store and they a friend at a Tate picked-up returned to Tate s house. ¶4 On July 7, 2006, the grand jury issued an indictment, charging Srout with Count 1, first-degree murder, a class one felony; Count 2, armed robbery, a class two felony; and Count 3, hindering prosecution of murder in the first degree, a class three felony. Before trial, Srout filed a Notice of Intent to Use Statements by Mike Withers. The State responded and agreed that all statements against interest made by Mike Withers to law enforcement should come in; however, the State noted that the court must determine whether each statement is truly against penal interest, and that attempts to shift blame and curry favor are not truly self-inculpatory and fail to qualify as statements against interest. 4 The police later found the car abandoned in a Safeway parking lot. 3 ¶5 A jury trial commenced on February 20, 2008. At trial, Blair s and Srout s testimony contradicted one another. The court allowed Srout to present a portion of Withers interview with investigators. Sergeant Cooper testified that Withers admitted to: knowing of the plan to rob Victim; seeing Tate sitting on top of Victim and placing his hands around Victim s throat; using receiving bleach money to from clean Tate. the The carpet jury found in the Srout shed; and guilty as charged. The court sentenced Srout to life imprisonment with no possibility of release for 25 years for Count 1, a concurrent mitigated term of 10 years imprisonment for Count 2, and an aggravated term of 6 years imprisonment for Count 3. The court further ordered that Count 2 be served concurrently with Count 1 and that Count 3 be served consecutively with Counts 1 and 2. 5 ¶6 Srout sentences. We timely have appealed jurisdiction from his pursuant convictions to the and Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A)(1) (Supp. 2008). 5 On February 27, 2008, Srout filed a motion for new trial that asserted [j]udicial error in not allowing all of Mike Withers interview regarding Mr. Srout under State v- Gibson and [j]udicial error in assisting County Attorney. At the posttrial hearing on the motion, the court denied the motion. 4 DISCUSSION ¶7 Srout argues that the trial court abused its discretion in precluding exculpatory statements by Withers, an unavailable accomplice. Srout contends that the court erred in finding that Withers out-of-court statements were not against interest, or if against interest, not trustworthy. Srout further contends that the court erred because there was neither corroborating nor conflicting evidence to support the court s decision to preclude the statements on the ground that they were not trustworthy. ¶8 We review the admission or exclusion of evidence for abuse of discretion. This court will not reverse the [trial] court s rulings on issues of the relevance and admissibility of evidence absent a clear abuse of its considerable discretion. State v. Davis, 205 Ariz. 174, 178, ¶ 23, 68 P.3d 127, 131 (App. 2002) (internal quotations and citations omitted). An out-ofcourt statement that tend[s] to expose the declarant to criminal liability and [is] offered to exculpate the accused may be admitted under an exception to the hearsay rule if three requirements are met: (1) The declarant is unavailable as a witness; (2) the statement is against the declarant s interest; and (3) corroborating circumstances clearly indicate the trustworthiness of the statement. Ariz.R.Evid. 804(b)(3); see 5 also State v. Tankersley, 191 Ariz. 359, 370, ¶ 45, 956 P.2d 486, 497 (1998). ¶9 At trial, despite finding the entire interview unreliable, the court permitted Srout to introduce a portion of Withers previous investigators. statements reflected as statements The court hearsay. denying, It made excluded determined minimizing, in an the remainder that and interview these of with the statements rationalizing. Additionally, the court found that many of Withers statements did not inculpate Withers, did not exculpate Srout, and did not find the sufficient circumstantial indicia of trustworthiness of his statements. ¶10 The first requirement of Rule 804(b)(3) is that the declarant must be unavailable. Srout and the State agree that this requirement was satisfied because Withers attorney stated that Withers would invoke his Fifth Amendment right if called to testify. We agree. ¶11 Second, as mentioned above, the out-of-court statement must be against the declarant s interests. The statement must be so far against the declarant s interest that he would not have made it unless he believed it to be true. Ariz.R.Evid. 804(b)(3). A statement that does not inculpate the declarant or exculpate another person is not admissible. Williamson v. United 6 States, 512 U.S. 594, 599-604 (1994); State v. Soto-Fong, 187 Ariz. 186, 195-96, 928 P.2d 610, 619-20 (1996). ¶12 Our review of the record indicates that many of Withers statements did not subject him to criminal liability. For example, Withers stated that: he did not know what was going on; he was scared and crying; he ran out of the house when he heard Victim scream; he did not see Srout in certain locations of the house/shed or was unsure of Srout s whereabouts; and Tate and Blair Withers were responsible. statement together. Such also sought to Tate that Srout and Victim were doing are not self-inculpatory statements present drugs and were properly excluded. ¶13 Finally, Rule 804(b)(3) provides that [a] statement tending to expose the offered to exculpate declarant the to accused is criminal not liability admissible and unless corroborating circumstances clearly indicate the trustworthiness of the statement. trustworthiness is Ariz.R.Evid. adequately 804(b)(3). established, To the determine judge if should examine both the corroborating evidence and the contradictory evidence. State v. LaGrand, 153 Ariz. 21, 27, 734 P.2d 563, 569 (1987). This requires an evaluation of a number of factors, including: the existence of supporting and contradictory evidence, the relationship between the declarant and the listener, the relationship between the declarant and the 7 defendant, the length time of psychological statement, number between and and of times the physical whether the the statement made, the and event was statement, the environment declarant the at the would time the from benefit of the statement. Tankersley, 191 Ariz. at 370, ¶ 45, 956 P.2d at 497. The judge s evidence inquiry in the declarant s is record statement limited to the corroborating would permit question and a of whether contradicting reasonable the person to believe that the statement could be true. LaGrand, 153 Ariz. at 28, 734 P.2d at 570. If the judge determines that a reasonable person could conclude that the statement could be true, the evidence comes in for the jury s consideration. State v. Lopez, 159 Ariz. 52, 55, 764 P.2d 1111, 1114 (1988). ¶14 The support record Withers here statements. lacks We corroborating initially note evidence that to Withers interview was conducted approximately one year after the night in question. could not During the interview, remember and did not Withers know admitted specific that details he and admitted to doing drugs on the night in question. Further, there was no evidence that corroborated Withers statement that Tate and Blair were the only two people involved. Blair testified at length to Withers and Srout s involvement, and Srout testified that he did not know who was involved. Neither Blair nor Srout corroborated Withers statements 8 that Withers and Srout were scared or ran out of the house. In fact, Withers statements were inconsistent with Srout s statements to police and trial testimony. Withers stated that he and Srout were scared and crying when they heard Victim scream. Conversely, Srout continuously asserted that he never saw Victim and did not know of the murder until after he buried the carpet. ¶15 Given presence of the unreliability contradictory of evidence, the and statements, the lack the of corroborating evidence, we conclude that the trial court did not abuse its discretion when it precluded portions of Withers interview. CONCLUSION ¶16 For the foregoing reasons, we affirm. /s/ __________________________________ PATRICK IRVINE, Judge CONCURRING: /s/ _____________________________________ JOHN C. GEMMILL, Presiding Judge /s/ _____________________________________ ANN A. SCOTT TIMMER, Chief Judge 9

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