Opinion
1 CA-CR 22-0478
06-27-2024
STATE OF ARIZONA, Appellee, v. JESSE DUONNE HERNANDEZ, Appellant.
Arizona Attorney General's Office, Phoenix By Gracynthia Claw Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Aaron J. Moskowitz Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2019-146173-001 The Honorable Eartha K. Washington, Judge (retired) Affirmed
Arizona Attorney General's Office, Phoenix By Gracynthia Claw Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix By Aaron J. Moskowitz Counsel for Appellant
Presiding Judge Anni Hill Foster delivered the decision of the Court, in which Judge Brian Y. Furuya and Vice Chief Judge Randall M. Howe joined.
MEMORANDUM DECISION
FOSTER, JUDGE
¶1 Jesse Hernandez appeals his conviction for second-degree murder. This court affirms for reasons that follow.
FACTUAL AND PROCEDURAL HISTORY
¶2 Hernandez and his wife separated in 2019. Hernandez moved in with his parents, while his wife moved with their children to an apartment in Mesa. The wife's sister, D.V., moved into the same apartment complex with her husband, K.E.
¶3 Hernandez's wife filed for divorce in September 2019. Later that month, Hernandez went to her apartment building. Hernandez spoke with his wife in her apartment. Their conversation became heated, and at one point, Hernandez placed his hands around her neck. D.V. and K.E. knocked on the apartment door, and Hernandez's wife opened it. When D.V. saw her sister with disheveled hair, "huge" eyes, and pale lips holding her neck, she asked if Hernandez "put his hands on" her, and her sister acknowledged they had been "fighting."
¶4 D.V. and K.E. began yelling and cursing at Hernandez, who left the apartment with a backpack. Though Hernandez's wife had given him a key to the apartment, she wanted D.V. and K.E. to have it instead. K.E. followed Hernandez out of the apartment to obtain the key. Within a short time, gunshots rang out, K.E. staggered back to the apartment saying, "he shot me," and he collapsed. Hernandez fled in his vehicle while his wife and other residents of the apartment complex called 911.
¶5 K.E. was shot multiple times in the torso and arms. K.E. had no pulse when police and paramedics arrived and died from his wounds after being transported to a hospital. No weapons were found on K.E. or at the scene. Hernandez fled to his parents' house, where family members persuaded him to contact police.
¶6 In response to his family's pleas to contact police, Hernandez, accompanied by a family member, went to a Phoenix police precinct where the family member told a sergeant there that Hernandez was "turn[ing] himself in" because "he shot somebody." Hernandez told the sergeant he was in his car about to leave his wife's apartment building when K.E. told him, "don't come back over here," "I'm going to take care of you," and then "bum-rushed" him. Hernandez said he responded with a "quick reaction."
¶7 Hernandez was handcuffed and transported to the Mesa Police Department. There, he spoke with a detective for more than two hours. Initially, Hernandez told the Mesa detective that he was outside his wife's apartment building when a homeless black man approached him, called him a slur, and asked him for money. Hernandez said he fired one shot into the air and then disposed of the gun.
¶8 After about an hour into Hernandez's interview, the detective confronted Hernandez about how the facts at the scene and witness statements did not support his story. Hernandez paused at that point and then described an altercation with K.E. He said he was about to drive away from his wife's apartment building when K.E. approached him, asked for his wife's apartment key, and told him they did not want to see him over there. In relating the story, Hernandez stated that K.E. threatened to harm Hernandez if he returned; Hernandez goaded him; K.E. then "rushed" him. Hernandez panicked, retrieved the gun from his backpack, exited the car, and pulled the trigger. His account contained several details that proved to be false: he said he was in a friend's car, with the friend in the passenger seat at the time of the shooting; he fired a shot "straight up," just once, after K.E. rushed him; and he disposed of the gun.
¶9 The State indicted Hernandez on second-degree murder and misconduct involving weapons charges-which were severed at his request. At trial on the murder charge, Hernandez testified that he shot K.E. in self-defense. He said that soon after leaving his wife's apartment, K.E. followed him outside, screaming and yelling, and reached out to grab him. Hernandez said he hopped backwards to avoid K.E. but when K.E. kept coming forward he removed the gun from his backpack and started shooting. Hernandez's statements to the Mesa police detective were admitted at trial and the subject of substantial cross-examination, but the superior court precluded him from offering his earlier statement to the Phoenix police sergeant. A jury rejected Hernandez's claim of self-defense and found him guilty as charged with three aggravating circumstances proven. The superior court sentenced him to 23 years' imprisonment.
¶10 Hernandez timely appealed. This court has jurisdiction under Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
After the murder verdict, Hernandez pled guilty to the charge of misconduct involving weapons and was sentenced on both counts on the same day. Although Hernandez purports to appeal both convictions, the misconduct involving weapons count is not at issue in this appeal. See A.R.S. § 13-4033(B).
DISCUSSION
¶11 On appeal, Hernandez contends the superior court made three errors: (1) precluding his first statement to the Mesa police sergeant, (2) denying evidence about his psychological issues, and (3) allowing the State to impeach him with a prior conviction.
I. The superior court permissibly precluded Hernandez's first statement to police.
¶12 Hernandez moved before trial to admit the statement he made to the Phoenix police sergeant. He argued the statement was admissible pursuant to his constitutional rights to due process, confrontation, and a fair trial, as well as under the "rule of completeness" embodied in Arizona Rule of Evidence ("Rule") 106. The superior court denied his motion, concluding that the statement was hearsay and not admissible under Rule 106.
¶13 On appeal, Hernandez does not dispute that his statement to the Phoenix police sergeant was hearsay. But he argues it was admissible under both Rule 106 and his constitutional right to present a complete defense. The superior court's evidentiary ruling is reviewed for an abuse of discretion, but its interpretation of the rules of evidence and constitutional requirements are considered de novo. State v. Champagne, 247 Ariz. 116, 131, ¶ 28 (2019); State v. Payne, 233 Ariz. 484, 502, ¶ 49 (2013).
¶14 Rule 106 provides: "[i]f a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part-or any other statement-that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection."
This Court recites the current version of Rule 106, which was recently amended from the version in effect when Hernandez was charged and tried. The changes do not affect the analysis.
¶15 Hernandez argues that his earlier statement to the Phoenix police sergeant should have been admitted under Rule 106 because it "provide[d] context for" and "put . . . in perspective" his later statements to the Mesa police detective. The argument is unpersuasive. Hernandez is correct that Rule 106 authorizes admission of a statement "necessary to qualify, explain or place into context the [statement] already introduced." State v. Cruz, 218 Ariz. 149, 162, ¶ 58 (2008) (citation and internal quotation marks omitted); see also Champagne, 247 Ariz. at 134, ¶ 45 (observing that Rule 106 allows admission of a statement if "needed to complete a statement already introduced, to avoid the introduced statement from being taken out of context, or to prevent jury confusion"). But Hernandez fails to establish that his earlier statement was needed to qualify, explain, or contextualize his later statements. To be sure, the earlier statement may have bolstered Hernandez's account of self-defense. But the mere fact that the earlier statement harmonized with a portion of his later statements, or that the earlier statement might have aided his credibility, did not entitle it to admission under Rule 106. See Cruz, 218 Ariz. at 162, ¶ 58 ("Rule 106 does not create a rule of blanket admission for all exculpatory statements simply because an inculpatory statement was also made."); see also Champagne, 247 Ariz. at 134, ¶ 45 (holding that the defendant's "separate statement from an entirely separate conversation that occurred on a separate date" was not admissible under Rule 106 where the statement sought to be admitted was not needed to complete, explain, or contextualize an admitted statement but was offered merely "to rebut" such statement).
¶16 Nor does Hernandez establish that admission of his earlier statement was constitutionally required. "'Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense."'" Cruz v. Blair, 255 Ariz. 335, 337, ¶ 38 (2023) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). Even so, "[a] defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions." United States v. Scheffer, 523 U.S. 303, 308 (1998). Such restrictions include rules excluding evidence provided "they are not 'arbitrary' or 'disproportionate to the purposes they are designed to serve.'" Id. (citation omitted); see also State v. Cabrera, 250 Ariz. 356, 360, ¶ 15 (App. 2021).
¶17 Hernandez's statement to the Phoenix police sergeant was precluded by the hearsay rule. See Ariz. R. Evid. 801, 802. Even if the hearsay rule excludes relevant evidence at times, Hernandez fails to argue, let alone establish, that the rule is arbitrary or that it does not serve a legitimate purpose. Thus, the rule in itself does not violate a defendant's right to have a meaningful opportunity to present a complete defense. See Cabrera, 250 Ariz. at 360, ¶ 15 (suggesting that excluding a defendant's exculpatory statement under the hearsay rule does not deprive him of a meaningful opportunity to present a complete defense because the rule is "reasonable"); cf. State v. Gilfillan, 196 Ariz. 396, 402-03, ¶¶ 20, 23 (App. 2000) (holding that even though the Arizona Rape Shield Law "operates to prevent a criminal defendant from presenting relevant evidence, confronting adverse witnesses and presenting a defense," its restrictions are constitutional because they "are not disproportionate" to the law's purpose), abrogated in part on another ground by State v. Carson, 243 Ariz. 463 (2018). Furthermore, application of the hearsay rule here did not prevent Hernandez from offering other evidence of self-defense, including exculpatory portions of his admitted statements to the Mesa police detective and his own trial testimony. See Cabrera, 250 Ariz. at 360-61, ¶ 15 (observing that the defendant had a meaningful opportunity to present a complete defense where he was able to testify consistently with the excluded exculpatory statement).
II. The superior court permissibly precluded testimony on Hernandez's psychological issues.
¶18 After he was charged, Hernandez retained a psychologist to conduct a neuropsychological evaluation of him, prepare a report, and provide an opinion about why he might have offered inconsistent accounts to police of what happened. Based on interviews of Hernandez and his family members, the psychologist reported that he had a childhood diagnosis of ADHD, a history of anxiety and poor stress management, and that he was under significant stress around the time of the shooting. The psychologist opined that Hernandez's stress could have led him to fabricate an account of what happened. Her opinion was based on research showing that "acute stress can impair recollection of stressful events, particularly under stressful conditions" and "once a person has fabricated a recollection of an event, such fabrication . . . further impairs recall of truthful details."
¶19 After Hernandez disclosed the report, the State moved to preclude the psychologist from testifying at trial. Hernandez opposed the motion, arguing that the testimony would be relevant to explain why he gave inconsistent accounts and to rebut the State's argument that he intentionally lied. After an evidentiary hearing in which the psychologist testified about the bases of her opinions, the superior court precluded the testimony because it was not probative as to a material issue in dispute and would not assist the jury in understanding the evidence.
¶20 But when Hernandez testified on cross-examination at trial, he volunteered that he had "ADD," which caused his mind to "wander[ ]." The prosecutor later asked him about the fact that he denied suffering from anxiety or a tendency to misremember information when the Mesa police detective questioned him about those issues after the shooting. Hernandez responded that he did, in fact, have anxiety but did not disclose it to the detective because he "didn't want her to look at [him]" in a negative light. A juror sought to ask Hernandez whether he had a "formal medical diagnosis" and took "prescription medication" for ADD and anxiety but the State sought to preclude the questions over relevancy. After argument, the court declined to ask the question.
¶21 Hernandez argues that the superior court should have allowed him to present testimony by the psychologist and testimony about his ADHD and anxiety in response to the juror question. He contends that the court erred in precluding such evidence because his reason for making inconsistent statements was a material issue in dispute. The court's exclusion of expert testimony and a juror question are reviewed for an abuse of discretion. State v. Malone, 247 Ariz. 29, 31, ¶ 7 (2019) (expert testimony); State v. Villalobos, 225 Ariz. 74, 82, ¶ 33 (2010) (juror question). Its ruling will be upheld "if the result was legally correct for any reason." State v. Perez, 141 Ariz. 459, 464 (1984).
¶22 Here, the superior court did not abuse its discretion by excluding evidence about ADHD and anxiety because no evidence linked either condition to his making false statements. The psychologist who evaluated Hernandez would have testified that he was "more than likely" experiencing "a high level of stress" after the shooting and that acute stress can impair a person's ability to accurately recall details. Additionally, Hernandez's childhood ADHD diagnosis was irrelevant to the psychologist's opinion because she did not report any association between ADHD and stress. Even if Hernandez's anxiety had some bearing on his stress level, no evidence showed that his ability to accurately recall details about the shooting was impaired in any way. Hernandez denied having any reason he might not remember details about the shooting when the detective asked him if he had a reason. The interview thus refutes any suggestion that Hernandez spoke falsely because of stress-induced memory loss. Similarly, at trial he testified that he lied to the detective not because he blacked out, or could not recall what happened, but because he did not know what police knew about the incident and thought his false statements would enable his release. Because the psychologist's opinion related to a memory failure-of which there was no evidence-her testimony would not have helped jurors understand why Hernandez provided inconsistent accounts. See Ariz. R. Evid. 702. Similarly, Hernandez fails to show that the juror question about his ADD and anxiety would have led to relevant evidence. See Ariz. R. Evid. 401.
III. The superior court committed no error or abuse by allowing the State to impeach Hernandez with a prior felony conviction.
¶23 Not long after Hernandez was indicted, the State alleged that he had a prior conviction for resisting arrest, a class 6 felony, and it requested a Rule 609 hearing to determine whether it could impeach him with that conviction at trial. See Ariz. R. Evid. 609(a)(1)(B). The trial began more than two years later without a Rule 609 hearing having been held.
¶24 During a break in the State's cross-examination of Hernandez, the prosecutor informed the court that she intended to impeach him with his prior conviction and noted that the court had not addressed the conviction's admissibility under Rule 609. Hernandez objected to any mention of the prior conviction, asserting that a Rule 609 hearing would be untimely at this point. He also argued allowing him to be impeached with the prior conviction would be fundamentally unfair because a separate pretrial ruling precluded him from explaining the circumstances of the conviction.
¶25 The superior court asked Hernandez to search for legal authority supporting his position over the break. When Hernandez returned, he acknowledged that he had found no decision preventing the court from conducting a Rule 609 hearing at this juncture. The court then considered the prior conviction under Rule 609 and determined that the State could impeach Hernandez with the fact of the conviction. When Hernandez returned to the stand for further cross-examination, he admitted that he had been convicted of a felony in 2018.
¶26 On appeal, Hernandez reasserts that the court should have barred the State from impeaching him with his prior conviction. He does not challenge the substantive admissibility of the conviction under Rule 609 but only the timing of the court's determination. Hernandez contends that the State's request for a Rule 609 hearing should have been treated as denied when he took the stand without a prior ruling or renewed request from the State. See State v. Hill, 174 Ariz. 313, 323 (1993) ("A motion that is not ruled on is deemed denied by operation of law."). He also argues that by conducting a Rule 609 hearing after he had already testified on direct examination, the court violated his rights to due process and fundamental fairness because it prevented him from "draw[ing] the sting" of the prior conviction. See U.S. Const. amend. XIV, § 1; Ariz. Const. art. 2, § 4; State v. Melendez, 172 Ariz. 68, 71 (1992) ("The touchstone of due process under both the Arizona and federal constitutions is fundamental fairness."). Hernandez further contends that because the effect of such an error cannot be determined under the circumstances, a finding of error requires reversal.
¶27 The superior court's decision to allow impeachment by prior conviction under Rule 609 is reviewed for an abuse of discretion. See State v. Bolton, 182 Ariz. 290, 302-03 (1995). But whether an evidentiary ruling violates due process and fundamental fairness is considered de novo. See State v. McGill, 213 Ariz. 147, 159, ¶ 53 (2006). Contrary to Hernandez's proposition, "[i]mproper admission of evidence of prior convictions is subject to harmless error analysis." Bolton, 182 Ariz. at 303.
¶28 The superior court's conduct reveals no error or abuse. No authority expressly prevented the court from conducting a Rule 609 hearing during Hernandez's cross-examination. Cf. State v. Colvin, 231 Ariz. 269, 271, ¶ 7 (App. 2013) ("Trial courts have discretion to extend the time for filing motions and, implicitly, to hear untimely motions."). Nor did the timing of the court's ruling rise to the level of a due process violation. Depriving Hernandez of the ability to assist his credibility by "drawing the sting" of the prior conviction on direct examination did not "necessarily prevent[ ] a fair trial," Lisenba v. California, 314 U.S. 219, 236 (1941), or take from him "a fair opportunity to defend against the State's accusations," Chambers v. Mississippi, 410 U.S. 284, 294 (1973).
CONCLUSION
¶29 Hernandez's conviction and sentence for second-degree murder are affirmed.