Opinion
No. 2 CA-CR 2019-0069
04-14-2020
THE STATE OF ARIZONA, Appellee, v. JAMES EDWARD EARLEY II, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Heather A. Mosher, Assistant Attorney General, Tucson Counsel for Appellee Cochise County Office of the Legal Advocate By Xochitl Orozco, Legal Advocate, Bisbee Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Cochise County
No. S0200CR201800079
The Honorable James L. Conlogue, Judge
REVERSED AND REMANDED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Heather A. Mosher, Assistant Attorney General, Tucson
Counsel for Appellee Cochise County Office of the Legal Advocate
By Xochitl Orozco, Legal Advocate, Bisbee
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. EPPICH, Presiding Judge:
¶1 James Earley appeals his conviction for transporting marijuana for sale, arguing that the trial court erred by (1) denying his motion to suppress evidence stemming from a warrantless inspection of a truck parked within the fenced curtilage of a home and (2) permitting the state to improperly refer to his post-Miranda silence. Because the state improperly referred to Earley's silence throughout the trial and we cannot conclude these errors were harmless, we reverse and remand for a new trial.
Miranda v. Arizona, 384 U.S. 436 (1966).
Factual and Procedural Background
¶2 The following facts at trial were undisputed. In the afternoon of November 7, 2016, border patrol agents using a video surveillance system observed a truck being loaded with bundles they believed to be marijuana. An agent driving in the area was alerted, and a truck matching the description given by the other agents drove by him in the opposite direction. The agent made a U-turn, and while he was doing so saw the truck turn onto a side street. The agent momentarily lost sight of the truck; when he drove back to the corner and parked, he saw the truck parked alongside the front of a house, with Earley standing outside on the passenger side. After Earley saw the agent, he began nervously unloading cement bags from the bed of the truck. Later, after Earley left the home, police obtained a warrant, searched the truck, and seized bundles of marijuana found inside.
¶3 After a four-day trial, a jury found Earley guilty of transporting for sale marijuana weighing two pounds or more. The trial court sentenced him to a mitigated three-year prison term. Earley timely appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Earley was also indicted for and found guilty of possession for sale of marijuana weighing four pounds or more. The court dismissed this count as a lesser-included offense at sentencing.
Motion to Suppress
¶4 "In reviewing the denial of a motion to suppress evidence, we consider only the evidence presented at the suppression hearing and view that evidence in the light most favorable to upholding the trial court's ruling." State v. Olm, 223 Ariz. 429, ¶ 2 (App. 2010) (internal citation omitted). The truck in question was located on a short, dead-end street, parked alongside a house near the front door. After Earley departed with another man who arrived in a truck, the agent called police, and a state trooper arrived. Together they decided to knock on the front door of the house to ensure that any occupants were safe and to ask for information about the truck in the driveway.
¶5 A chain link fence ran along the street in front of the house, but there was an open gate leading to a worn dirt driveway toward the front door. A "No Trespassing" sign was posted next to the gate. Further along the dead-end street, a closed pedestrian gate led to a paved walkway toward the front door. A person walking through the open gate and up the driveway to the front door would pass directly beside the truck, while a direct approach to the front door via the pedestrian gate would pass near the front end of the truck.
¶6 The agent and trooper, approaching from the direction of the main road, walked through the open gate and up the dirt driveway toward the front door, passing by the truck. As they approached within a few feet of the truck, the officers smelled marijuana, and when the agent looked inside the truck, he could see what he believed to be large, square packages of marijuana underneath a blanket.
¶7 After continuing on to the front door of the house and knocking on it with no answer, the officers left the property. Police obtained a search warrant for the truck based in part on what the officers had seen and smelled while near the truck. When they later searched the truck pursuant to the warrant, they found three bundles of marijuana.
¶8 Before trial, Earley filed a motion to suppress any evidence from the truck. In the written motion, he argued that police had smelled and seen the marijuana only by entering the property on the pretext of conducting a welfare check. He argued that because the welfare check was not legitimate, the search of the truck during the welfare check was illegal, requiring suppression of information obtained in that search and evidence obtained by executing the search warrant, which was based in part on that information. At the motion hearing, Earley disputed the propriety of the officers' path to the front door of the house, arguing that the agent and trooper had purposefully entered via the driveway because that was the only way that allowed them to inspect the truck.
¶9 On appeal, Earley argues that the officers' entry into the home's curtilage via the driveway rather than the pedestrian walkway was unconstitutional, citing as factors the fence and the no-trespassing sign posted by the driveway. He further contends that entry into the property was unconstitutional because knocking on the front door was just a "pretense" to show that they had not entered the property only to examine the truck. In general, we review a trial court's ruling on a motion to suppress for abuse of discretion. State v. Morris, 246 Ariz. 154, ¶ 10 (App. 2019). "In reviewing a trial court's ruling on a motion to suppress, we defer to the trial court with respect to the factual determinations it made but review the court's legal conclusions de novo." Olm, 223 Ariz. 429, ¶ 7.
The state concedes that the truck was parked within the curtilage of the home.
¶10 "[N]o Fourth Amendment violation occurs when an officer, without a warrant, crosses the curtilage to knock on the front door to ask questions of the resident." Id. ¶ 13. And homeowners "generally do not have a legitimate expectation of privacy in a path across their driveway to and including their front porch and front door." Id. ¶ 12. "Nor are the occupant's Fourth Amendment rights violated when the officer observes contraband in plain sight from a lawful vantage point." Id. ¶ 13; see also State v. Baggett, 232 Ariz. 424, ¶ 16 (App. 2013) (police may view and smell objects from a lawful position without a warrant). But an officer may not deviate from a reasonable path to the front door to inspect a vehicle parked in the curtilage of a property. See Olm, 223 Ariz. 429, ¶¶ 15, 17 (Fourth Amendment violated where officer ventured off clear walkway to front door and into yard to examine car's VIN number).
¶11 Here, the officers' route to the front door of the house was reasonable. From where the agent and trooper had parked, they reached the open driveway gate without passing the closed pedestrian gate. Their route up the driveway to the front door was shorter than if they had continued along the street to the pedestrian gate and up the paved path. The officers therefore took the most direct route to the front door.
¶12 Moreover, both the agent and the trooper testified that they had not noticed the pedestrian gate before they had walked up the driveway. We defer to the trial court's findings that this testimony was credible and that thick vegetation around the pedestrian gate and path obscured that route from the perspective of the agent and trooper. See Olm, 223 Ariz. 429, ¶ 7. And even if the officers had seen the pedestrian gate, it would not necessarily have precluded them from entering via the driveway. See id. ¶ 12. Nor did the no-trespassing sign posted by the gate preclude the officers' entry by that gate, given that the gate was open. See State v. Lohse, 245 Ariz. 536, ¶¶ 13-14 (App. 2018) (citing cases holding that no-trespassing sign coupled with gate generally bars warrantless entry only when gate is closed).
¶13 Earley contends that the examination of the truck was nonetheless unconstitutional because knocking on the front door was a mere pretense to afford the officers a vantage point to examine the truck. Indeed, the case Earley cites to supports this contention, State v. Blakley, 226 Ariz. 25 (App. 2010), suggests that if an officer's purpose in being in a person's driveway is unreasonable, his or her presence there is unlawful. See id. ¶ 16 (citing with approval United States v. Magana, 512 F.2d 1169, 1171 (9th Cir. 1975)). But in that case, the officer professed to have intended to conduct a knock-and-talk but instead "walked past the pathway that led directly to the front door and continued walking down the driveway into an area ordinarily not used by visitors" and demonstrated "no intent to locate an occupant." Id. ¶ 17. Here, in contrast, the officers took a direct route toward the front door and knocked on it. And under our standard of review, we must credit the trooper's plausible testimony that they were interested in talking to any occupants in the house in addition to being interested in the truck. See Olm, 223 Ariz. 429, ¶ 2. In sum, we conclude that the officers had a reasonable purpose for being in the driveway.
Earley also argues that even if the officers' entry was allowed under the Fourth Amendment, it was prohibited under the corresponding provision in the Arizona Constitution, which offers heightened protections of the home. See Ariz. Const. art. II, § 8; State v. Bolt, 142 Ariz. 260, 263-65 (1984). Earley's trial court motion merely mentioned the Arizona Constitution, however; he did not develop any argument separate from his Fourth Amendment analysis. He therefore waived all but fundamental error review. See State v. Fisher, 226 Ariz. 563, n.3 (2011) (mere mention of Arizona Constitution without separate argument insufficient to preserve claim); State v. Coleman, 241 Ariz. 190, n.1 (App. 2016) (constitutional claims raised for first time on appeal reviewed for fundamental error only). And because he has failed to argue on appeal that fundamental error occurred, he has waived all review of this issue. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008).
¶14 Because the officers were lawfully in the driveway when they passed by the truck, their plain-view and plain-smell observations of it were also lawful. See Baggett, 232 Ariz. 424, ¶ 16. Thus, the trial court did not err in denying Earley's motion to suppress evidence from the truck.
Because we conclude that the officers acted lawfully, we need not reach the state's contention that Earley lacked standing to assert a Fourth Amendment violation.
References to Defendant's post-Miranda Silence
¶15 After a detective administered Earley the Miranda warnings, Earley continued to speak with the detective, answering a question about where his cell phone was located. The conversation lasted less than three minutes, and the detective did not ask Earley any other questions. Earley then invoked his right to counsel.
¶16 At trial during the detective's testimony, Earley's counsel asked to approach the bench, and the following sidebar occurred:
[Earley's Counsel]: I just wanted to know, you are not going to ask him if he interviewed [Earley]?
[Prosecutor]: Yeah, I am.
[Earley's Counsel]: No, you are not. He invoked his fifth—
[Prosecutor]: He did interview him, and he did talk to him a little bit before he invoked his rights.
[Court]: You cannot say that.
[Prosecutor]: I know that, but I can certainly ask him.
[Earley's Counsel]: No, you can't.
[Prosecutor]: I can if he interviewed him, and I can ask if you obtained any information of relevance from that, and if he mentioned anything about his whereabouts that day.The sidebar concluded, and the trial resumed. Later that day, the prosecutor asked the detective a series of questions to elicit that Earley had not made any exculpatory statements after he was arrested:
[Earley's Counsel]: He didn't do that, Judge. I have never been disclosed with anything like that.
[Prosecutor]: You have been disclosed his recorded interview, about his interview.
[Earley's Counsel]: It doesn't say anything about his whereabouts. It's your witness, does he understand that we're not going to be talking about invocation?
[Prosecutor]: He is absolutely aware, and I told him not to mention the fact that he invoked his rights.
[Earley's Counsel]: But I thought—
[Prosecutor]: He did talk to him a couple minutes before his rights.
[Court]: He talked about the phone and everything.
[Prosecutor]: He did talk about the phone.
[Earley's Counsel]: Right.
[Prosecutor]: After Mr. Earley's arrest, what did you do?
[Detective]: We transported him back to the [Department of Public Safety] office in Bisbee.
[Prosecutor]: And did you read him his Miranda rights?
[Detective]: I did.
[Prosecutor]: And did you have a conversation with him?
[Detective]: I did.
[Prosecutor]: And at any point during that conversation, did the name [D.F.] come up?
[Detective]: No.
[Prosecutor]: During that conversation, at any point, did Mr. Earley tell you about a friend borrowing his truck?
[Detective]: No.
[Prosecutor]: At any point during that conversation, did Mr. Earley mention the name [J.S.]?
[Detective]: No.
[Prosecutor]: And did you inform Mr. Earley why he was being placed under arrest?
[Detective]: Yes.
[Prosecutor]: And at any point, did he provide you with information regarding his whereabouts on that day?
[Detective]: No.
[Prosecutor]: And at any point, do you recall him making any exculpatory statements that might indicate that he is not guilty?
[Detective]: No.
Earley did not object to these questions.
Earley testified that D.F. had transported the marijuana.
J.S. was an alibi witness for Earley.
Earley testified that D.F. had transported the marijuana.
J.S. was an alibi witness for Earley.
¶17 After the jury was excused that day, Earley again raised concerns over the state's use of his silence:
[W]e're like in some real fine lines here, and I have tried to remain, you know, calm, that the good, you know, the good sense of the prosecutor, but this is all afternoon we're getting this kind of stuff. And it's troubling. I hope that it's troubling to the Court because that leaves this jury now with the impression that there was some kind of full-blown interview with this guy where he never said—mentioned [D.F.] or his truck or anything else.The prosecutor responded to Earley's concerns:
What happened was that he asked him about his phone. It's in his report, he said my phone is at work, and then he said what's this about, and he—the Officer explained why he had probable cause, and then he invoked. That's what really happened.
The State was attempting not to breach the rights regarding his right to invoke. He did have a conversation. It was a short conversation, but nonetheless, he had one, and it would be at that conversation that Mr. Earley would have the opportunity to explain an alibi, or I didn't do it, or I was innocent, and he didn't take that opportunity.Earley did not respond to the state's contention that he had not objected to the detective's testimony.
I approached the bench and discussed what I was going to ask. I made it very clear, and [Earley's counsel] did not have an objection at that point. So, I don't know what else to say.
Earley did at this point request a jury instruction to inform the jury that he "[didn't] have to talk to anybody, and it isn't an indication of guilt or innocence if somebody decides that they don't want to talk to the police." The state objected to the instruction, arguing that Earley could address his concerns by cross-examining the detective about the fact that the interview had been short and the detective had not asked him whether he had an alibi or whether a third party may have been culpable. The court did not address whether a jury instruction was warranted.
¶18 After the state rested, Earley presented a third-party-culpability defense involving D.F. and an alibi defense involving J.S. Earley testified that he had been at his grandmother's house—the house where the agent saw him—when D.F., who had borrowed the truck, pulled in, hurriedly told Earley, "I just picked up a load, and the cops are on me," and fled through the back yard on foot. J.S., a friend who lived nearby, testified that earlier in the day, Earley had been dropped off at J.S.'s house and someone else had driven away in the truck—corroborating Earley's story that the truck had been borrowed. According to J.S., Earley had said he was going to perform some maintenance work at his grandmother's house, which also corroborated Earley's alibi that he had been at the house, not driving the truck.
¶19 During cross-examination, the state questioned Earley about why he had not told the police or anyone else that D.F. was responsible. After Earley offered an explanation, the state continued to press him on his pre-trial silence:
[Prosecutor]: Why didn't you tell officers beforehand so they could investigate it before we got to trial?
[Earley]: I am not under any obligation to tell them anything.
[Prosecutor]: Okay.
[Earley]: The burden of proof is on the State, I believe.
[Prosecutor]: You don't think telling them before today would have—Earley then objected to the references to his silence. The court admonished the prosecutor that she had already "explored this area," and the prosecutor agreed to "move on."
¶20 After the defense presented its case, the prosecutor recalled the detective in rebuttal and asked him whether he would normally investigate any alibis or defenses. He answered yes and indicated he would have investigated Earley's alibi had he been aware of it. Earley again objected and moved for a mistrial based on the prosecutor's repeated references to his post-arrest silence. The trial court denied the motion for mistrial but again suggested that the prosecutor should move on to other topics.
¶21 In closing argument, the state called into doubt Earley's third-party-culpability defense implicating D.F. by referencing Earley's failure to mention it after he was arrested:
Does your sense of self-preservation kick in the month of trial? Does your sense of self-preservation kick in when you are indicted? At what point do you say it's me or [D.F.]?The state similarly questioned the credibility of Earley's alibi based on his failure to mention it until shortly before trial:
At what point do you decide to tell someone that you have an alibi that can help prove your innocence? Well, [for] Mr. Earley, that was about a month before trial.
¶22 The state argues that Earley did not timely object to the state's use of his silence and therefore has waived this claim of error. Although Earley did not initially make a clear objection—the record suggests that he withheld objection and relied on the prosecutor's "good sense" that inquiry into his silence would not cross "fine lines"—he raised unequivocal objections later when the prosecutor continued to refer to his post-Miranda silence. Even if a defendant does not raise an objection when the state first refers to his post-arrest silence, when the defendant objects to such references later during trial "in a manner sufficient to advise the court that the error was not waived," error is preserved for appeal. See State v. Downing, 171 Ariz. 431, 434-35 (App. 1992) (quoting State v. Briggs, 112 Ariz. 379, 382 (1975)). And at any rate, Earley did raise concerns about references to his post-Miranda silence before any were made, which served the purposes of an objection: to give the state an opportunity to avoid error and the trial court an opportunity to make an intelligent ruling. See Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 450 (1982). Thus, the issue is not waived.
¶23 The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. Pursuant to that right, "if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent." Miranda v. Arizona, 384 U.S. 436, 467-68 (1966). That information "must be accompanied by the explanation that anything said can and will be used against the individual in court." Id. at 469. Because of "the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial," such use violates the Due Process Clause of the Fourteenth Amendment. Brecht v. Abrahamson, 507 U.S. 619, 628 (1993) (quoting Wainwright v. Greenfield, 474 U.S. 284, 291 (1986) and citing Doyle v. Ohio, 426 U.S. 610, 619 (1976)). "[T]he Constitution does not prohibit the use for impeachment purposes of a defendant's silence prior to arrest," but the state may not refer to a defendant's "silence after that point in time," or "more generally to [a defendant's] failure to come forward with his version of events at any time before trial." Id. at 628-29.
¶24 The state cites State v. Tuzon, 118 Ariz. 205, 207 (1978), for the proposition that when a defendant does not remain silent and answers questions after arrest and then makes exculpatory statements at trial not made in the post-arrest interview, he may be impeached with his earlier failure to make those exculpatory statements. But our supreme court has since held that although a prosecutor may question police or the defendant on matters the defendant volunteers before invoking his rights, it is "impermissible to ask questions on matters about which the appellant had not made any comment or given any information." State v. Routhier, 137 Ariz. 90, 96 (1983); see also Anderson v. Charles, 447 U.S. 404, 408 (1980) (use of defendant's post-Miranda silence to impeach trial testimony proper where "[a]s to the subject matter of his statements, the defendant has not remained silent at all" (emphasis added)). Here, Earley invoked his rights without telling police anything about what had happened. It was therefore improper to undercut Earley's testimony by eliciting from the detective that Earley had not mentioned his alibi witness or the culpable third party after he was given Miranda warnings. It also was improper to question Earley about why he had not provided police with his alibi or told them that a third party was culpable. And because the questioning was improper, it was improper to refer to the questioning in closing argument by suggesting that a truthful, innocent person would have provided the exculpatory information to police when indicted or at least long before trial.
¶25 Therefore, error occurred; to decide if reversal is warranted, we determine if it was harmless. See State v. Henderson, 210 Ariz. 561, ¶ 18 (2005); State v. Green, 200 Ariz. 496, ¶ 21 (2001). "Harmless error review places the burden on the state to prove beyond a reasonable doubt that the error did not contribute to or affect the verdict or sentence." Henderson, 210 Ariz. 561, ¶ 18. To evaluate prejudice to a defendant from a prosecutor's improper references to a defendant's assertion of constitutional rights, we consider factors including: (1) whether "[the] defendant [was] forced to defend his invocation of constitutional rights through his own testimony," or was the error confined to "closing comments, which the jury [was] advised [were] not evidence"; (2) whether the references were moderate and "lacking significance when considered with the overall evidence"; (3) the degree to which the references would tend to mislead the jury and prejudice the defendant; (4) whether the references were deliberate or inadvertent; and (5) "the strength of the proof introduced to establish defendant's guilt," including whether it was "overwhelming" or "disputed circumstantial evidence that made defendant's credibility a factor." State v. Palenkas, 188 Ariz. 201, 213 (App. 1996).
¶26 We cannot conclude that the errors here were harmless. First, the improper references to Earley's silence were not confined to closing argument; the state improperly inquired into Earley's silence multiple times during trial. Moreover, the state first referred to Earley's silence through questions to the detective in its case-in-chief—effectively forcing Earley to testify to explain his reasons for remaining silent. Even had the circumstances allowed the state to impeach Earley with his silence, it still would have been improper for the prosecutor to question the detective about it in the state's case-in-chief—before Earley testified, and thus before he had made any statement to impeach. See State v. Henry, 176 Ariz. 569, 580 (1993) (evidence relevant only for impeachment not admissible in state's case-in-chief). And we reject the state's suggestion that there was no error or harm because "[d]efense counsel himself elicited information from Earley regarding . . . his reasons for not reporting his alibi and third-party culpability stories . . . to [the detective]." Improper references to a defendant's post-arrest silence are not rendered harmless merely because "[defendant's] counsel asked a few questions to try to minimize the damage." State v. Keeley, 178 Ariz. 233, 236 (App. 1994).
¶27 Second, the improper references arose out of the prosecutor's deliberate trial strategy. See Keeley, 178 Ariz. at 235-36 (reversing conviction where commentary on defendant's post-Miranda silence arose from prosecutor's "deliberate trial strategy" rather than "inadvertent slip" by testifying officer). The prosecutor repeatedly asked questions referring to Earley's post-Miranda silence, continuing with the strategy despite being alerted multiple times that the strategy might be improper. The improper references took place over the course of three days, providing the prosecutor ample opportunity to consult the relevant law and change course. Yet even after the trial court had warned that the prosecutor's strategy had caused it to become "extraordinarily nervous," the prosecutor doubled down on its strategy the next day by referring to Earley's silence in closing.
¶28 Third, the prosecutor's repeated improper references were not moderate nor lacking in potential for unfair prejudice. We are particularly troubled by the prosecutor's choice to ask the detective whether Earley had "ma[de] any exculpatory statements that might indicate that he is not guilty." This question went beyond impeachment and broadly suggested that Earley must be guilty because he failed to profess his innocence. Even were the circumstances such to allow the state to impeach Earley with his post-Miranda silence on certain matters, this question would have been improper. See State v. Carrillo, 156 Ariz. 125, 128 (1988) ("[T]he prosecutor may not raise an inference of defendant's guilty mind by remarking upon the silence of a suspect who exercised his Miranda rights.").
¶29 Finally, the proof of Earley's guilt was not overwhelming. The border patrol agent acknowledged that he temporarily lost sight of the truck and did not see who had been driving it. While the state contends that Earley's testimony that D.F. had parked the truck there and fled was "temporally and physically impossible," the state presented no evidence establishing precisely how long the agent lost sight of the truck. Evidence of this amount of time consisted solely of the estimates of the agent, who was asked whether it had taken a minute or two to get in position to view the truck again and answered, "[T]hat may be too long." Even were we to assume that the agent lost sight of the truck for less than a minute, the state does not explain precisely why Earley's version of events could not possibly have occurred within that time.
¶30 At any rate, any conclusion of impossibility would rest on the premise that Earley's testimony must be disbelieved simply because it is contradicted by a single witness's estimate of time. Our supreme court has declined to find error harmless where the defendant's testimony was contradicted by a single witness and the erroneously admitted testimony undermined the defendant's credibility. See Green, 200 Ariz. 496, ¶ 22 (error not harmless where court erroneously admitted defendant's prior convictions and state's case relied on belief in victim's testimony over defendant's). And although the state asserts that "Earley sent several texts to friends expressly admitting that he was the one who lost his truck (to forfeiture) doing a drug run," the texts, while incriminating, are susceptible to innocent explanation. The many improper references to Earley's silence undercut his effort to provide such explanations.
The state introduced the following texts sent from Earley's phone:
[R.], glad you got a phone. Lost my truck last week doing a run. Lucky I was able to walk away and just leave the truck. Long story short, you could make up for a lot of wrongs by helping out with tax return money. I am sure that you have heard that we lost [D.F.] I am very sad about it and not really dealing with it very well.
Lost my truck fishing. Got my old job back building new custom kitchens.
Don't know if you've heard, but I lost my truck last week. I am in need of a beater with a heater. If you know of someone, please let me know. Thanks.
¶31 For these reasons, we cannot conclude beyond a reasonable doubt that the errors did not contribute to the verdict.
Disposition
¶32 We reverse Earley's conviction and sentence and remand for a new trial.
Earley explained that he had told R. that he lost the truck doing a run to impress her because she "like[d] to run with bad guys," and because the truck had been forfeited because of a drug run it would have appeared to her that that was what had happened. Earley could not recall what he had meant when he said that he had lost his truck fishing, and disputed that he would necessarily say that someone else lost his truck rather than himself under the circumstances.