                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                          ISMAEL LEON, Appellant.

                             No. 1 CA-CR 14-0128
                               FILED 3-10-2016


           Appeal from the Superior Court in Maricopa County
                      No. CR2013-002558-001-DT
               The Honorable Sherry K. Stephens, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee

The Hopkins Law Office, P.C., Tucson
By Cedric M. Hopkins
Counsel for Appellant
                            STATE v. LEON
                          Decision of the Court



                     MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the Court, in which
Acting Presiding Judge John C. Gemmill and Judge Margaret H. Downie
joined.


B R O W N, Chief Judge:

¶1            Ismael Leon appeals his convictions and sentences for first-
degree felony murder, drive-by shooting, and assault. For the reasons that
follow, we affirm.

                            BACKGROUND

¶2            On the evening of February 11, 2012, Leon and his cousin,
Jaime Martinez, attended a party with friends at an apartment in Buckeye.
Around 1:00 a.m., M.B. and the victim (M.B.’s boyfriend), guests from the
neighboring apartment, knocked on the door where the party was being
held and asked the occupants to turn down the music so their children
could sleep. The occupants refused, yelling and cursing at M.B., so she
called the police.

¶3            At that point, the victim turned to pick up a child, but Leon
and Martinez, who had joined the group in front of the apartment,
immediately knocked the victim to the ground, beating and kicking him.
Eventually the victim was able to stumble away from the apartment, while
Leon and Martinez ran toward the parking lot. Seeing his attackers fleeing,
the victim “ran to his truck” and parked behind Leon’s vehicle to block it
in. The victim approached Leon’s vehicle and was shot in the chest. He
stumbled for a short distance, but then fell to the ground. As the driver,
Leon maneuvered his vehicle around the victim’s truck and fled the
parking lot. The victim died shortly after police and emergency responders
arrived at the scene. No weapons were found on the victim’s body or
elsewhere in the parking lot.

¶4           An officer responding to the emergency call spotted a vehicle
on a nearby residential street. The officer activated her patrol vehicle’s
lights and parked in front of the car. When the officer approached, Leon
was the only person in the car. The officer observed blood running down




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                             STATE v. LEON
                           Decision of the Court

the rear driver’s side window “like water.” The officer then placed Leon
under arrest.

¶5            Subsequent to Leon’s arrest, detectives searched the area
surrounding Leon’s vehicle and found a “pistol grip” shotgun laying in
front of a chain link fence at a residence. Detectives executed a search
warrant on Leon’s vehicle and impounded three spent shell casings, which
matched the firing pin impressions of the shotgun. Leon’s palm print was
also found on the shotgun. Based on forensic evidence obtained from
Leon’s vehicle and the blood spatter on his clothing, police concluded Leon,
not Martinez, shot the victim. The State subsequently charged Leon with
one count of first-degree felony murder, one count of drive-by shooting,
and one count of aggravated assault. Martinez1 was charged with one
count of aggravated assault and one count of hindering prosecution in the
first degree.

¶6             At trial, Leon testified that the victim “swung” at him during
the initial altercation and he therefore acted in self-defense when he and
Martinez struck the victim ten to fifteen times. Leon further testified that
the victim ran into the neighboring apartment and returned with a “knife
or a gun,” so he and Martinez ran. In response to questioning, however,
Leon admitted that he did not actually see a weapon and it “could have
been anything.” Leon also testified that after he and Martinez got into his
car, Martinez pushed him out of the way and shot the victim. Leon then
drove several blocks and Martinez told him to stop the car. Martinez then
fled with the gun before Leon was placed under arrest. Leon admitted he
owned the gun used to kill the victim and that he kept the gun loaded in
his backseat. Leon also acknowledged he initially told police officers that
he alone fought the victim and an unidentified Hispanic man shot the
victim. Leon did not claim Martinez was the shooter until January 2013,
eleven months after the shooting.

¶7            After a nineteen-day trial, a jury found Leon guilty of first-
degree felony murder, drive-by shooting, and the lesser-included offense
of assault. The trial court sentenced Leon to natural life for the murder
conviction, a concurrent, presumptive prison term of 10.5 years for drive-
by shooting, and a jail term of six months for assault. Leon timely appealed.




1      Martinez was not in the vehicle when Leon was arrested; however,
he self-surrendered the next day with the assistance of counsel.

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                             STATE v. LEON
                           Decision of the Court

                              DISCUSSION

    I.    Witness Invocation of the Fifth Amendment

¶8             Leon argues the trial court erred by permitting Carmen
Martinez (Martinez’ mother) and Adela (Leon) Dennett (Leon and
Martinez’ aunt) to invoke their Fifth Amendment privilege against self-
incrimination and refuse to testify. Specifically, Leon contends the court
failed to follow the requisite procedures to ascertain whether the witnesses
were entitled to a blanket invocation of the privilege.

¶9            In June 2013, Leon filed a supplemental notice of defense
witnesses in which he identified several potential witnesses, including
Carmen and Adela, and stated “there is potential that Adela Leon . . . and
Carmen Martinez could incriminate themselves as to hindering
prosecution, and tampering/destruction of evidence, and [Leon] therefore
requests this court to appoint counsel to those individuals[.]”2 Consistent
with Leon’s request, the court appointed counsel to represent Carmen and
Adela.

¶10           Leon then requested a hearing regarding the validity and
scope of the prospective witnesses’ invocation of the Fifth Amendment. In
his motion, Leon argued the scope of the witnesses’ Fifth Amendment
privilege should be limited and they, as witnesses to Martinez’
“appearance, demeanor, and actions on the night of the shooting and
shortly thereafter,” should be compelled to testify regarding those
observations. Leon acknowledged that “these witnesses committed crimes
of concealment and destruction of evidence that would be covered by the
Fifth Amendment,” but argued “their eyewitness observations are not
covered by that invocation.”

¶11           On July 8, 2013, the trial court held a pretrial hearing to
discuss, among other matters, Carmen and Adela’s invocation of the Fifth
Amendment. Defense counsel explained she anticipated the court would
hold a hearing at which the invoking witnesses “would take the stand,” be
subjected to examination, and the court would determine “whether all the
[proffered] questions would, indeed, be covered under the scope” of the
Fifth Amendment. At that point, Carmen’s appointed counsel informed the


2      Leon also noticed Jessica Leon, Martinez’ sister, as a prospective
witness, based on her exposure to criminal liability for hindering
prosecution and destroying evidence. Jessica did not, however, assert the
privilege against self-incrimination.

                                     4
                              STATE v. LEON
                            Decision of the Court

court that defense counsel had emailed “the questions that were going to
be asked” and the “main” questions were: “What did you do with the gun?
How did you help [Martinez] in terms of, you know, getting out of?” Based
on the nature of the submitted questions, Carmen’s attorney explained that
he did not bring his client to the hearing because, “without fail, we’re going
to assert the Fifth.” The court instructed counsel to bring Carmen to a
hearing scheduled for August 6, 2013 so they could question her “on the
record.”

¶12           At the outset of the August 6 hearing, defense counsel again
stated her “understanding” that she would be allowed to question Carmen
and Adela and the court would then determine whether the witnesses
could invoke the Fifth Amendment on a “question by question basis.”
Defense counsel noted that Carmen and Adela “probably are exposed to
some sort of criminal liability, however, those weren’t the crux of the issues
that I wanted to ask them about. I wanted to ask them about their
observations and admissions which would be non-hearsay by [Martinez] to
them.” Defense counsel suggested that the exposure to liability problem
could be resolved if the State offered Carmen and Adela immunity, but the
prosecutor responded that she had “no intention of offering anyone any
immunity[.]” The prosecutor further stated her belief that, if Carmen and
Adela were questioned regarding whether they saw Martinez that night
and whether he made any admissions to them,” it’s my position that [they]
could tend to incriminate themselves if they helped him avoid capture by
taking him to a hotel . . . and if they destroyed [his] clothing,” as alleged by
defense counsel. The prosecutor opined that “even just testifying about
observations could incriminate them . . . [s]o I think they have a valid Fifth
Amendment right to all questions posed by [defense counsel] in this case.”
The court then found “there is a [Fifth Amendment] privilege with respect
to these two witnesses.”

¶13            “We review a trial court’s decision to excuse a witness
asserting the privilege against self-incrimination for an abuse of discretion.”
State v. Rosas-Hernandez, 202 Ariz. 212, 216, ¶ 10 (App. 2002). Although a
criminal defendant has a right to compulsory process to obtain material and
favorable testimony, this right is “not absolute” and a trial court must
“balance the defendant’s Sixth Amendment right to compulsory process
against a witness’s Fifth Amendment right to avoid self-incrimination.”
State v. Maldonado, 181 Ariz. 208, 210 (App. 1994). Under this balancing
test, a “valid assertion of [a] witness’ Fifth Amendment rights justifies a
refusal to testify despite the defendant’s Sixth Amendment rights.” Id.
(internal quotation omitted); Rosas-Hernandez, 202 Ariz. at 216, ¶ 10
(explaining that a “defendant’s right to compulsory process must yield” to


                                       5
                              STATE v. LEON
                            Decision of the Court

a witness’ proper invocation of the privilege not to incriminate himself).
When the trial court “determines that a witness could legitimately refuse to
answer essentially all relevant questions, then that witness may be totally
excused without violating an individual’s Sixth Amendment right to
compulsory process.” State v. Harrod, 218 Ariz. 268, 276, ¶ 20 (2008)
(internal quotations omitted).

¶14            The determinative issue here, therefore, is whether the
witnesses had a valid Fifth Amendment right to assert. Rosas-Hernandez,
202 Ariz. at 216, ¶ 10. “To validly invoke Fifth Amendment rights, a witness
must demonstrate a reasonable ground to apprehend danger from being
compelled to testify.” Id. at ¶ 11. The trial court may evaluate the validity
of a witness’ Fifth Amendment invocation by conducting an in camera
hearing. State v. Mills, 196 Ariz. 269, 276, ¶ 31 (App. 1999). However, the
court need not “personally question the witness, conduct a hearing, or
allow counsel to call the witness to the stand if the court possesses extensive
knowledge of the case such that it can find that the witness can legitimately
invoke the Fifth Amendment to all relevant questions asked.” Harrod, 218
Ariz. at 276, ¶ 21 (internal quotation omitted).

¶15           Applying these principles here, both the prosecutor and
defense counsel acknowledged that Carmen and Adela would be exposed
to criminal liability if they testified regarding their actions following the
shooting. Although defense counsel asserted she could question the
witnesses regarding their observations of Martinez without infringing on
their right against self-incrimination, the prosecutor opined that Carmen
and Adela would be exposed to criminal liability if they testified regarding
their involvement in any of the events that occurred that evening. Defense
counsel submitted questions to the witnesses’ counsel in advance of the
hearing, but these email communications are not in the record. Instead, the
only questions included in the record are those read by appointed counsel
at the July 8, 2013 hearing, both of which clearly implicate the Fifth
Amendment. Defense counsel made no proffer of other questions that
would not trigger the witnesses’ privilege against self-incrimination or
otherwise explain how she would question the witnesses regarding what
they observed while committing crimes, without exposing them to criminal
liability for the underlying crimes. Because the witnesses’ possible
observations following the shooting cannot be bifurcated from their alleged
criminal activities that evening, the trial court did not abuse its discretion




                                      6
                              STATE v. LEON
                            Decision of the Court

by finding the Fifth Amendment right against self-incrimination precluded
defense counsel from calling Carmen and Adela to testify.3

    II.    Lack of Immunity

¶16           Leon argues the trial court erred by failing to sua sponte grant
Carmen and Adela immunity so they could testify at trial without being
exposed to criminal liability. Citing State v. Axley, 132 Ariz. 383 (1982), Leon
contends that a trial court must grant immunity when a prospective witness
will present “clearly exculpatory evidence” and the failure to do so will
prevent the defendant from presenting “a complete defense.”

¶17            As noted by the State, Leon did not raise this claim in the trial
court, and we therefore review the claim only for fundamental error. State
v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). As our supreme court stated in
Axley, it is generally “a matter of prosecutorial discretion to decide when
the public interest would be best served by a grant of immunity.” 132 Ariz.
at 388. Nonetheless, a court may require the government to extend
immunity if “prosecutorial misconduct caused the witness to withhold
testimony” or the testimony is “clearly exculpatory and essential to [the
defendant’s] case.” Id. at 388. Absent these limited exceptions, the Sixth
Amendment does not require “either the prosecutor or the court . . . to
secure testimony from a defense witness by replacing the protection of the
self-incrimination privilege with a grant of use immunity.” Id. at 389
(internal quotation omitted).

¶18           With respect to the first exception, Leon has not asserted any
claim of prosecutorial misconduct. As to the second exception, Leon
provided no offer of proof demonstrating Carmen and Adela would
provide clearly exculpatory evidence. Instead, Leon expressed an intent to
elicit testimony regarding Martinez’ demeanor, appearance, and conduct
the night of the shooting. Assuming the witnesses would testify that
Martinez’ appearance and demeanor were consistent with having been
involved in a shooting, this evidence would possibly serve to inculpate


3      We also reject Leon’s additional claim that the trial court erred by
excusing Adela from testifying because, unlike Carmen’s appointed
counsel, Adela’s attorney did not specifically inform the court his client
would invoke the Fifth Amendment in response to each of defense
counsel’s submitted questions. The record reflects that both the prosecutor
and defense counsel regarded the witnesses as similarly situated with
respect to their alleged criminal activity and Fifth Amendment protections,
and there is no basis on this record for distinguishing between them.

                                       7
                             STATE v. LEON
                           Decision of the Court

Martinez, but would not clearly exculpate Leon, given the State’s evidence
relating to the likely connection between Leon, as the shooter, and the
significant blood spatter on his body and clothing at the time of his arrest.
Moreover, defense counsel asserted Martinez may have told Carmen and
Adela that he, not Leon, was the shooter. Mere speculation that a
prospective witness may provide exculpatory evidence does not mandate
court-ordered immunity.       Therefore, because the testimony of the
prospective witnesses was not clearly exculpatory, we find no error, much
less fundamental error, in the trial court not sua sponte granting Carmen
and Adela immunity.

   III.   Exclusion of Witness Testimony Based on a Lack of
          Trustworthiness

¶19            Leon argues the trial court erred by excluding the testimony
of his sister, Victoria Leon. Specifically, he contends Victoria should have
been permitted to testify regarding self-inculpatory statements Martinez
allegedly made to her under the hearsay exception outlined in Arizona Rule
of Evidence (“Rule”) 804(b).

¶20           Before trial, the State filed a motion in limine to preclude
Victoria from testifying that Martinez made certain statements to her the
night of the shooting. Applying Rule 804(b)’s three-part test, the State
conceded that the declarant was unavailable to testify (Martinez having
asserted his Fifth Amendment privilege against self-incrimination) and that
the alleged statement was against the declarant’s interest (exposing
Martinez to criminal liability). With respect to the third prong of the test,
however, the State asserted the statement lacked trustworthiness and was
therefore inadmissible.

¶21            At an evidentiary hearing held on September 11, 2013,
Victoria testified that she was asleep when she received a telephone call
from Jessica Leon (her cousin and Martinez’ sister) between 12:00 a.m. and
2:00 a.m. on February 12, 2012. Jessica asked Victoria if she knew where
Leon was and Victoria stated she did not know. Jessica then explained that
Leon and Martinez had been involved in a fight and Martinez “had shot
somebody.” Jessica told Victoria that she and Martinez were at their dad’s
apartment in West Phoenix. At that point, Jessica handed the phone to
Martinez and he told Victoria that he and Leon “got in a fight” and “some
guy was running after them . . .with a gun” and was going to shoot Leon so
Martinez “reacted and had to shoot the guy.” Victoria asked Martinez
whether he actually shot the man or just shot at him and Martinez replied
“I shot him. That fool dropped.” Martinez then told Victoria that he got


                                     8
                              STATE v. LEON
                            Decision of the Court

rid of the gun, ran “as far as [he] could,” lost one shoe, and then “somebody
gave [him] a ride.” When asked whether she could substantiate the phone
call through phone records, Victoria testified that she contacted her service
provider and was informed phone records are only maintained for six
months and therefore no record was available. Victoria acknowledged she
had not informed the State about her phone call with Martinez until seven
months after the shooting, but claimed she told Leon’s initial attorney,
Michael Leal, about the conversation shortly after he was retained.

¶22           At a subsequent evidentiary hearing held mid-trial, Leal
testified he had no recollection of Victoria mentioning the phone call with
Martinez. Indeed, Leal testified that no one told him Martinez had
confessed to the shooting. An investigator for the defense testified he did
not learn of Martinez’ alleged confession to Victoria until September 28,
2012. In an attempt to corroborate Victoria’s description of events, he
listened to Martinez’ jail phone calls with Carmen. In those phone calls,
Martinez told Carmen he lost a shoe the night of the shooting while running
from the police and that the shooting was in self-defense.

¶23            After hearing oral argument on the motion, the trial court
found Martinez was unavailable and the alleged hearsay constituted a
statement against interest for purposes of Rule 804(b), but further found
Leon had not met his burden of proving the hearsay statements were
“clearly trustworthy.” In making this ruling, the court noted: (1) Jessica
denied the conversation between Martinez and Victoria occurred; (2) Leal
had no recollection of Victoria reporting the alleged confession; (3) in her
written statement, Victoria stated Martinez stood outside the vehicle when
he shot the victim, contrary to all forensic evidence and eyewitness
testimony; (4) Victoria did not disclose the alleged confession to any
attorney (other than Leal, allegedly) or law enforcement personnel until
many months after it allegedly occurred; (5) according to Victoria, Martinez
stated the victim “dropped,” which was inconsistent with forensic evidence
and eyewitness testimony that he walked several feet before collapsing; and
(6) contrary to Martinez’ alleged statement, there is no evidence the victim
had a gun or other weapon. Finding that the corroborating circumstances
failed to clearly indicate trustworthiness, the court precluded Victoria from
testifying as to Martinez’ alleged confession.

¶24           We review a trial court’s decision whether to allow witness
testimony for an abuse of discretion. State v. Carlos, 199 Ariz. 273, 277, ¶ 10
(App. 2001). In general, out-of-court statements offered to prove the truth
of the matter asserted are inadmissible unless rooted in a hearsay exception.
Ariz. R. Evid. 801(c); 802. One recognized exception is for statements


                                      9
                              STATE v. LEON
                            Decision of the Court

against interest, permitting the introduction of an out-of-court statement
when the declarant is unavailable, the nature of the statement is against the
declarant’s interest, and the veracity of the statement is “supported by
corroborating circumstances that clearly indicate its trustworthiness[.]”
Rule 804(b)(3).

¶25           “A declarant is considered unavailable if he asserts his
privilege against self-incrimination.” State v. LaGrand, 153 Ariz. 21, 27
(1987). The State concedes that Martinez has invoked his Fifth Amendment
right and is unavailable to testify. Contrary to its position before the trial
court, however, the State now contends Martinez’ statement that he shot
the victim in self-defense is not a statement against interest because, rather
than exposing Martinez to criminal liability, the statement presented a
defense to criminal liability.

¶26           To qualify as a statement against interest, a statement must be
one that “a reasonable person in the declarant’s position would have made
only if the person believed it to be true because, when made, it . . . had so
great a tendency . . . to expose the declarant to civil or criminal liability.”
Ariz. R. Evid. 804(b)(3)(A). “Courts must analyze each proffered statement
separately to determine whether it is truly against penal interest,” and only
self-inculpatory statements are admissible under Rule 804(b)(3). State v.
Nieto, 186 Ariz. 449, 455 (App. 1996). Therefore, when a statement is
partially self-inculpatory and partially self-exculpatory, only the self-
inculpatory portions of the statement are admissible under the Rule
804(b)(3) hearsay exception. Id.

¶27            Here, Martinez’ alleged statement that he shot the victim is
self-inculpatory because it would expose him to criminal and civil liability.
The portion of his statement justifying the shooting as an act of self-defense
is not self-inculpatory and therefore is not admissible under Rule 804(b)(3).
Because the portion of the statement that Leon primarily sought to present
to the jury was self-inculpatory, we must consider whether the statement is
sufficiently trustworthy to qualify for the hearsay exception.

¶28            “To determine whether guarantees of trustworthiness exist,
courts must consider the totality of circumstances . . . that surround the
making of the statement and that render the declarant particularly worthy
of belief.” Nieto, 186 Ariz. at 454 (internal quotation omitted). Our supreme
court has identified several factors to consider in determining whether a
statement demonstrates sufficient trustworthiness: (1) the existence of
corroborating and contradictory evidence; (2) the relationship between the
declarant and the listener; (3) the relationship between the declarant and


                                      10
                             STATE v. LEON
                           Decision of the Court

the defendant; (4) the number of times the statement is made; (5) the
amount of time that has passed between the event at issue and when the
statements are made; (6) whether the declarant will benefit from the
statement; and (7) the psychological and physical environment
surrounding the making of the statement. LaGrand, 153 Ariz. at 27-28.
Because credibility questions “traditionally fall within the province of the
jury rather than the judge,” the supreme court explained that the court’s
role “should be limited to asking whether evidence in the record
corroborating and contradicting the declarant’s statement would permit a
reasonable person to believe that the statement could be true.” Id. In the
event the court determines a reasonable person could conclude “from
corroborating and contradictory evidence in the record that the declarant’s
statement could be true,” the court “must admit the statement into
evidence,” and allow the jury to consider the other factors and assess
credibility. Id.

¶29           Analyzing the corroborating and conflicting evidence,
Martinez’ jail telephone call to Carmen supports Victoria’s testimony
because Martinez stated he lost one of his shoes the night of the shooting
and also claimed the shooting was an act of self-defense.4 The contradictory
evidence, on the other hand, includes Jessica’s testimony that Martinez was
not with her the night of the shooting and the alleged phone call between
Victoria and Martinez at her father’s apartment never occurred, Leal’s
testimony that he did not recall Victoria informing him of the alleged
confession, and the forensic evidence and eyewitness testimony
contradicting Victoria’s written statement that Martinez told her he was
outside Leon’s vehicle when he shot the victim. On balance, the
corroborating and conflicting evidence would not permit a reasonable
person to believe the alleged statements are true and therefore the trial
court acted within its discretion in excluding Martinez’ alleged statement.




4      Leon’s statements identifying Martinez as the shooter also arguably
corroborate Victoria’s testimony. The weight accorded these self-serving
statements is minimal, however, given Leon’s claim for nearly a year after
the shooting that the shooter was an unidentified Hispanic man.

                                    11
                           STATE v. LEON
                         Decision of the Court

                            CONCLUSION

¶30          For the foregoing reasons, we affirm Leon’s convictions and
sentences.




                                :ama




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