Opinion
No. 1 CA-CR 14-0844
10-01-2015
STATE OF ARIZONA, Appellee, v. ROBERT DUANE BARKER, II, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Thomas K. Kelly, P.C., Prescott By Thomas K. Kelly Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Yavapai County
No. P1300CR201300547
The Honorable Tina R. Ainley, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Thomas K. Kelly, P.C., Prescott
By Thomas K. Kelly
Counsel for Appellant
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Andrew W. Gould joined. NORRIS, Judge:
¶1 Appellant Robert Duane Barker, II, appeals from his convictions and sentences for one count of Assault Per Domestic Violence, a class 2 misdemeanor, and one count of Disorderly Conduct Per Domestic Violence, a class 1 misdemeanor. On appeal, Barker argues the superior court should not have admitted a recording of a prior consistent statement of the victim—his wife ("KB")—because he had only attempted to impeach her testimony by pointing out inconsistencies and exaggerations in her prior statements to police and in her trial testimony. See Ariz. R. Evid. 801(d)(1)(B). As we explain, the court did not abuse its discretion in admitting the recording. Accordingly, we affirm Barker's convictions and sentences.
DISCUSSION
¶2 During the State's case-in-chief, KB testified that on November 7, 2012, Barker attacked her without provocation. During cross-examination, Barker attempted to impeach KB's credibility by suggesting she had lied to police from the beginning of their investigation and throughout, pointing out inconsistencies in what she had told police about the altercation and her trial testimony. Barker thus highlighted that, after meeting with her divorce attorneys "just several days after November 7, 2012," she had added "operative terms" to her original statement to police. Barker cross-examined KB further as follows:
[Counsel:] [KB], would you agree with me that someone could make up a story to gain an advantage in a pending divorce case?
[KB:] Yes.
. . .
[Counsel:] If they made up a story, it may entitle them to remain in the [marital] residence until a judge made a final decision as to what
[sic] was going to occupy that house in the divorce. Could that happen?
[KB:] I filed for divorce because of what happened that night.
[Counsel:] Okay. And you've lived in [the marital residence] since that time; correct?
[KB:] Yes.
¶3 During the State's redirect examination, the prosecutor questioned KB about her original statement to police—given the night of the incident—and offered the recording of her original statement into evidence to rebut Barker's cross-examination. Over Barker's objection, the superior court admitted the recording as a prior consistent statement under Rule 801(d)(1)(B). The court explained that, while Barker maintained KB had fabricated her story from the beginning, his cross-examination of KB had implied that she had added or embellished details to make her case stronger after seeing her divorce attorneys. For example, Barker pointed out that KB had not told police that Barker "looked like a Chinese dragon," or "gouged [his thumbs into her neck] as hard as he could." In her recorded statement, however, consistent with her trial testimony, KB told the officer that after she came home from the grocery store, Barker became upset because she changed the radio station, "went crazy . . . just snapped," put his thumbs in her throat, and slammed her up against the wall.
¶4 The superior court did not abuse its discretion in admitting the recording. See State v. Granados, 235 Ariz. 321, 328, ¶ 30, 332 P.3d 68, 75 (App. 2014) (appellate court reviews superior court's evidentiary ruling for abuse of discretion). A prior consistent statement is admissible under Rule 801(d)(1)(B)(i) if it is offered "to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying." Our supreme court has explained that, to be admissible under this Rule, the witness must have made "the prior consistent statement before the existence of facts that indicate a bias arises." State v. Martin, 135 Ariz. 552, 554, 663 P.2d 236, 238 (1983).
¶5 Here, the record reflects, as Barker argues on appeal, that his cross-examination of KB was designed to paint her as a liar. But, his cross-examination, as quoted above, also implied she was improperly motivated to add "descriptions" to her accounts of the altercation because she wanted to remain in the marital residence as she pursued a divorce. See Ariz. Rev. Stat. ("A.R.S.") § 25-315(C)(1) (Supp. 2014) (either party in dissolution of marriage proceeding may request superior court to issue temporary restraining order "[e]xcluding a party from the family home . . . on a showing that physical or emotional harm may otherwise result"). Thus, contrary to Barker's argument on appeal, he did not simply attack KB's credibility by developing and demonstrating inconsistencies in her testimony.
The Arizona Legislature has not amended A.R.S. § 25-315 since the date of Barker's offenses. Thus, we cite to its current version. --------
¶6 When a party raises an inference of recent improper influence or motive on cross-examination, a prior consistent statement is still admissible even though the party argues the declarant fabricated the story from the beginning. Compare Maricopa Cnty. Juv. Action No. JV-133607, 186 Ariz. 198, 201, 920 P.2d 320, 323 (App. 1996) (prior consistent statement inadmissible because defendant "did not make an implied charge of recent fabrication," but rather "highlighted inconsistencies in the victim's story in an attempt to show that the victim could not keep her story straight"), with State v. Moya, 138 Ariz. 7, 12, 672 P.2d 959, 964 (App. 1983) (prior consistent statements admissible to rebut inference raised in cross-examination that witness "had recently fabricated her trial testimony or had been improperly influenced by the police during their investigation of the crime"), and Granados, 235 Ariz. at 329, ¶¶ 33-34, 332 P.3d at 76 (prior consistent statements admissible to rebut line of questioning that would have left jury with impression victim's "story had substantially evolved from the time of her first police contact to her testimony at trial").
CONCLUSION
¶7 For the foregoing reasons, we affirm Barker's convictions and sentences.