State v. Lansman
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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 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. ) ) MESCHELL ARIN LANSMAN, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 10/26/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL No. 1 CA-CR 09-0511 DEPARMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR 2008-1127 The Honorable Steven F. Conn, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Adriana M. Rosenblum, Assistant Attorney General Attorneys for Appellee Phoenix Carlene H. Lacey, Mohave County Public Defender By Jill L. Evans, Deputy Public Defender Attorney for Appellant Kingman D O W N I E, Judge ¶1 Meschell Arin Lansman ( defendant ) appeals her convictions and sentences for two counts of aggravated assault. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY 1 ¶2 Defendant and victim lived together for a little over a year. Victim moved out in June 2008. The couple had a rocky break-up, but continued to communicate. 2008, victim met defendant for lunch. On July 15, After an argument ensued, victim left. Approximately twenty minutes later, victim called defendant discuss to the argument. The second time victim called, a man answered defendant s phone and identified himself as James. Victim could hear a couple other guys in the background. James told victim to leave [defendant] alone or else, and said, I can come to your house and I ll handle you. After the call ended, the guys called victim three more times, but victim hung up on them. Defendant then called victim and said, You re going to get yours. kind of player. You think you re slick, some Victim hung up the phone, and after some text message exchanges, decided to take a nap before going to work. ¶3 Victim heard a knock at his door and saw a stranger on his doorstep. He grabbed a pair of brass knuckles because he 1 We view the facts in the light most favorable to sustaining the jury s verdicts and resolve all reasonable inferences against defendant. State v. Vandever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005). 2 had a feeling it was the guys from the phone conversations. When victim walked outside, the man who had knocked was at the end of the driveway. van. Victim saw two other men and defendant s Victim asked, Do you have a problem? Can I help you? to which the man responded, You got a problem? Apparently house. you re the one with the problem. Victim said, You re at my He then looked over at defendant, gave her a dirty look, and flipped her off. The man standing next to the van punched victim in the face. Victim pulled the brass knuckles from his pocket but immediately lost them. All three men began hitting and kicking victim. ¶4 Victim eventually fell to his elbows and knees, and the men kicked him, pulled his hair, and tried to punch him in the face. He was never able to punch any of the men. The men jumped the victim. in van twice, but exited Victim heard defendant say, Okay. and He s bleeding. A neighbor yelled, The cops are coming. cops. again ¶5 We got him. I already called the Defendant said, The cops are coming. then drove off. beat Let s go. They The neighbor witnessed the incident. Victim suffered a broken nose and extensive bruising. He sent a text message to defendant asking why he had been assaulted. She responded, None of that was supposed to happen. They promised me. You know that I wouldn t want anything to happen to anyone like that. I m sorry. 3 ¶6 Defendant was charged with one count of aggravated assault, a class 4 felony, and one count of aggravated assault, a class 6 defendant felony. guilty After of both a two-day counts. trial, Defendant the jury found received three years probation, including ninety days in jail and an order to pay restitution. ¶7 Defendant filed a timely notice of appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2010) and -4033 (2010). DISCUSSION ¶8 Defendant argues that statements made by her co- defendants to law enforcement should have been admitted at trial under either Arizona Rule of Evidence ( Rule ) 804(b)(3) or Rule 804(b)(7). 2 We review the trial court s admission or exclusion of evidence for an abuse of discretion. State v. Robinson, 165 Ariz. 51, 56, 796 P.2d 853, 858 (1990). ¶9 The trial. co-defendants did not testify at defendant s They asserted their Fifth Amendment rights against self- incrimination because they were awaiting sentencing following guilty pleas. 2 In 2010, the residual exception was renumbered from Rule 804(b)(5) to 804(b)(7). We cite to the renumbered version of the rule as no substantive changes were made. 4 ¶10 Two interviewed Deforte, days the and identical. events: after three Eric the assault, co-defendants: Heberling. a sheriff s James Their deputy Deforte, Joseph statements were almost The co-defendants related the following version of The three men and defendant were at Joseph s house. Defendant was on the phone with victim. Joseph got on the phone and told victim that defendant did not want to talk to him and to leave her alone. The group left in defendant s van en route to Tequila Bob s and Eric s DUI class when defendant took a detour and ended up near victim s house. going to arrived, James tell victim got out defendant. saw that [victim] was of to stop already the van calling outside and Defendant said she was and told her. When they the van. approached victim to stop calling Victim took his hand out of his pocket, and James he had brass knuckles. Victim shoulder, causing him to fall to the ground. out of the van and went after victim. hit James in the Joseph then jumped Eric stated that he separated Joseph and victim, and the group started to get in the van, but then victim kicked at him, and Eric moved out of the way and hit victim in the face. ¶11 Rule 804(b)(3) The group then left. provides that a statement against interest is admissible when the declarant is unavailable as a witness. Here, the unavailability prong is satisfied because the co-defendants invoked their Fifth Amendment rights to remain 5 silent, and the trial court quashed subpoenas that the defense had served on them. ¶12 A statement against interest is: A statement which was at the time of its making so far contrary to the declarant s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement[.] Id. Not only must the statements be against the declarants interests, but when a defendant wishes to offer the statements to exculpate herself, as here, there must also be corroborating circumstances that clearly indicate the trustworthiness of the exculpatory statement[s]. State v. LaGrand, 153 Ariz. 21, 27, 734 P.2d 563, 569 (1987). ¶13 A statement against interest does not have to be a direct confession of guilt, but it must be of some probative value in a trial against the declarant. Id. (citations omitted); see also State v. Lopez, 159 Ariz. 52, 54, 764 P.2d 1111, 1113 (1998) ( Subjecting oneself to criminal qualifies as a declaration against interest. ). liability Each statement must be scrutinized in a fact-intensive inquiry to determine if 6 it is truly self-inculpatory in light of the totality of the circumstances. State v. Nieto, 186 Ariz. 449, 455, 924 P.2d 453, 459 (App. 1996) (citing Williamson v. United States, 512 U.S. 594, 603-604 (1994)). admissible if they are Confessions of co-defendants may be truly self-inculpatory, merely attempts to shift blame or curry favor. rather than Williamson, 512 U.S. at 603; see, e.g., United States v. Hazelett, 32 F.3d 1313, 1317 (8th Cir. 1994) ( statement admitting guilt and implicating another person, made while in custody may well be motivated by a desire to curry favor with the police and do not qualify as a statement against interest (citation omitted)). ¶14 Self-inculpatory confession s confessions non-self-inculpatory do parts not more make a credible. Williamson, 512 U.S. at 599-600 ( One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly nature. ). declarant persuasive because of its self-inculpatory Only those portions that actually incriminate the are admissible under the exception. LaGrand v. expose the Stewart, 133 F.3d 1253, 1267-68 (9th Cir. 1998). ¶15 Here, the proffered statements declarants to criminal liability. do not Although each co-defendant admitted being at victim s home and getting out of the van at some point, none of the statements was truly self-inculpatory. James said it was the victim who came up to the van as soon as 7 they arrived. victim punched admitted He claimed he was only speaking to victim when him touching with the brass knuckles. victim or participating in James the never assault. Joseph stated he got in a wrestling match with victim, but never admitted hitting or kicking victim. Joseph claimed they tried to leave several times, but victim prevented them from doing so. Eric admitted hitting victim in the face, but stated he did so only after victim tried to kick him. ¶16 Each of the statements characterized aggressor and co-defendants as the victims. victim as the Each co-defendant portrayed himself as acting in self-defense or in defense of others. James even advised a deputy that he did not desire prosecution. ¶17 if Moreover, defendant glosses over the fact that, even the 804(b)(3) co-defendants exception, statements only those qualified portions under that the are incriminating to the declarants would be admissible. Rule actually At most, this might include Joseph s statement about a wrestling match or Eric s admission to hitting victim in the face. Neither of these statements tends to exculpate defendant. ¶18 Furthermore, no corroborating circumstances clearly indicate the trustworthiness of the co-defendants statements. Trustworthiness is existence supporting of determined by and many factors, contradictory 8 including evidence, the the relationship between the declarant and the listener, the relationship between the defendant and the declarant, the number of times the statement was made, the length of time between the event and the environment at statement, the time the of the psychological statement, declarant benefits from the statement. 27-28, 734 P.2d at 569-70. corroborating and and physical whether the LaGrand, 153 Ariz. at Here, there is not merely a lack of circumstances, there is ample contradictory evidence. ¶19 An testified independent that the eyewitness, co-defendants closed victim s in on neighbor, victim all at once, with one behind him [who] hit him in the back of the head and one on the side and one in the front. According to the neighbor, victim was not able to fight back and tried to protect himself by covering his head. At one point, the neighbor saw one man grab victim by his hair and swing him into the street. When victim was down on all fours, the neighbor saw the men get out of the van and start kicking him in the head, ribs, and stomach. ¶20 The victim s testimony also refuted the co-defendants statements. So too did defendant s after-the-fact text messages apologizing for the assault. The co-defendants statements are also physical inconsistent victim. with the injuries sustained by Additionally, the fact that the statements were given 9 two days after truthfulness, opportunity the as to assault the discuss casts co-defendants and agree further would upon a doubt on had have version their ample of events. Finally, the statements were made to law enforcement, which does not bolster their credibility because they could have been made in an attempt to curry favor and obtain a reduced sentence. LaGrand, 153 Ariz. at 27, 734 P.2d at 569. We agree with the trial did court that the proffered statements not meet the requirements for admissibility under Rule 804(b)(3). ¶21 Rule 804(b)(7) provides a residual exception to the hearsay rule when a declarant is unavailable to testify. states: A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent s intention to offer the statement and the particulars of it, including the name and address of the declarant. 10 It Ariz. R. Evid. 804(b)(7). ¶22 The record does not establish (nor does defendant contend) that the defense complied with the notice requirements of Rule 804(b)(7). residual exception A statement may not be admitted under the unless its proponent advises the opposing party sufficiently in advance of the trial, of the intention to offer the statement and the particulars of it, including the name and address of the declarant. disclose her reliance on Rule Id. Defendant did not 804(b)(7) until trial was underway. More fundamentally, for the same reasons discussed in connection with lacked Rule 804(b)(3), circumstantial the guarantees co-defendants of statements trustworthiness. Id. They were thus inadmissible under Rule 804(b)(7). ¶23 Defendant defendants defense. also statements asserts denied 302 unfettered her the excluding right to the present coa The right of an accused to present witnesses in her own defense is fundamental. 284, that (1973). right Chambers v. Mississippi, 410 U.S. However, to offer an accused testimony does that is not have an incompetent, privileged, or otherwise inadmissible under standard rules of evidence. Taylor v. Illinois, 484 U.S. 400, 410 (1988). The exclusion of the co-defendants statements was not a result of rigid or mechanistic application of the rules of evidence. The court and ruled only after analyzing 11 the corroborating contradictory benefit from circumstances, the statements, whether the the length of declarants time would between the event and the statements, and whether there was other evidence defendant could procure through reasonable efforts. court s ruling followed applicable law and did The trial not deprive defendant of her right to present a defense. CONCLUSION ¶24 For the foregoing reasons, defendant s convictions and sentences are affirmed. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ PATRICIA A. OROZCO, Judge 12
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