                                    IN THE
                        ARIZONA COURT OF APPEALS
                                 DIVISION TWO


                             THE STATE OF ARIZONA,
                                    Appellee,

                                       v.

                           CHRISTIAN BETZA VASQUEZ,
                                   Appellant.

                             No. 2 CA-CR 2012-0305
                             Filed November 8, 2013

                 Appeal from the Superior Court in Pima County
                              No. CR20110455002
                    The Honorable Clark W. Munger, Judge

                          REVERSED AND REMANDED


                                  COUNSEL

Thomas C. Horne, Arizona Attorney General
by Joseph T. Maziarz, Section Chief Counsel, Phoenix
and Nicholas Klingerman, Assistant Attorney General, Tucson

Counsel for Appellee

Altfeld & Battaile P.C.
by Robert A. Kerry

Counsel for Appellant
                               STATE v. VASQUEZ
                                Opinion of the Court



                                     OPINION

Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge
Kelly and Judge Espinosa concurred.


E C K E R S T R O M, Judge:

¶1           Following a jury trial, appellant Christian Vasquez was convicted of
one count of first-degree murder and twenty-two other felony offenses stemming
from a home invasion. He received a natural life sentence for the murder
conviction and a combination of consecutive and concurrent prison terms for the
other offenses. On appeal, Christian claims the trial court erred in denying his
motion to sever his trial from that of his codefendant and brother, Orel Vasquez.
Christian further maintains the admission of out-of-court statements made by his
brother violated the Confrontation Clause of the Sixth Amendment and resulted
in reversible error. We agree that severance was required and consequently
reverse the convictions and sentences.1

                       Factual and Procedural Background

¶2            We view the evidence in the light most favorable to upholding the
verdicts. See State v. Ruggiero, 211 Ariz. 262, ¶ 2, 120 P.3d 690, 691 (App. 2005).
On August 5, 2009, Christian, Orel, and their cousin Juan planned to burglarize a
house they mistakenly believed contained marijuana. Wearing black clothing
and ski masks, Christian, Orel, and two other men entered the house at night,
held its four occupants at gunpoint, and stole some personal property and
money. When an unknown car stopped near the house, the men ran outside and
tried to force the driver and three passengers to get out. Orel fired a rifle into the
car, killing the fifteen-year-old victim, B.A., and injuring her mother with
shattered glass. The four men ran to their own vehicle, where Juan had been
waiting for them, and fled the scene.

      1Our   disposition renders it unnecessary to address the sentencing errors
that the state has identified in its answering brief.

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                                 Opinion of the Court

¶3          Christian, Orel, and Juan then fled to Mexico. There, Juan
eventually spoke on the telephone to law enforcement officers in Tucson and
confessed his role in the crime. After accepting a plea offer, he testified at trial to
the above events. By his account, he was in the car during the entire episode,
and as he was driving away, Orel said, “[A] shot went off.”

¶4           Christian and Orel’s mother, Maria, also testified.              She
acknowledged reporting to police that she had spoken to her sons about the
incident before they had left the country. Maria reported that Christian had told
her he had been present at the scene of the home invasion, the victim had been
accidentally shot with a rifle, he had not pulled the trigger, and he was going to
Mexico because he was scared. Orel had told her that he, too, had been present
at the crime scene and was going to Mexico because he was “scared for the same
thing.” Maria further reported that she had overheard her sons talking about
going to the house to get drugs before the crimes were committed. At trial,
however, she recanted her earlier report and insisted these statements were all
lies she had told in response to threats by the police.

¶5          Juan, Orel, and Christian surrendered to authorities at the Nogales
port of entry. Orel subsequently granted an interview to a television news
reporter in which he discussed the incident. In the interview, the reporter
confronted Orel with police records alleging that “you, your brother and some
friends had walked into a home looking for drugs and money.” Orel maintained
his decision to turn himself in simply reflected that he was one of the three
suspects named by police out of six possible participants in the crime. He also
said he had agreed to the interview “so we can clear everything out.” But over
the course of the interview, Orel made various incriminating remarks, stating
that what had happened was an “accident,” that “[t]hey involved me in it,” and
that he “had to run” away. He acknowledged that his family members had
“wanted us to like turn ourselves in.” He further stated, “I’m so sorry . . . but
we’re not animals,” and he maintained it would be “up to [the victim’s mother]
whether she believes us or not.”

¶6           After the state played the video for the jury, Christian renewed his
pretrial motions to sever, which the trial court denied. The court provided no
instructions limiting the admissibility of his brother’s out-of-court statements.



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                                 Opinion of the Court

The jury subsequently found Christian guilty of twenty-three felony offenses,
and this timely appeal followed the imposition of sentence.

                                     Discussion

¶7           On appeal, Christian maintains the trial court erred in denying his
motions to sever and in admitting statements that violated his right to
confrontation. In his first motion below, Christian sought to sever his trial from
Orel’s based on the statements Orel had made in the video that incriminated
Christian. Relying on Bruton v. United States, 391 U.S. 123 (1968), and Crawford v.
Washington, 541 U.S. 36 (2004), Christian argued that “inculpatory statements of a
non-testifying co-defendant which incriminate [the other] co-defendant cannot
be introduced in a joint trial.” In his second motion to sever, he maintained
Orel’s incriminating statements to their mother were likewise inadmissible under
the Confrontation Clause. The trial court denied the motions without making
express findings.

¶8           We review a trial court’s denial of a severance motion for an abuse
of discretion. State v. Blackman, 201 Ariz. 527, ¶ 39, 38 P.3d 1192, 1202 (App.
2002). In so doing, we consider “the evidence before the court at the time the
motion was made.” Id. We review de novo a defendant’s claim that the
admission of a codefendant’s statements violated the Sixth Amendment right to
confrontation. Blackman, 201 Ariz. 527, ¶ 41, 38 P.3d at 1203.

¶9             Under Rule 13.4, Ariz. R. Crim. P., a trial court must grant a motion
to sever defendants’ trials when it “is necessary to promote a fair determination
of . . . guilt or innocence.” A trilogy of United States Supreme Court cases—
Bruton, Richardson v. Marsh, 481 U.S. 200 (1987), and Gray v. Maryland, 523 U.S.
185 (1998)—establish that a defendant’s Sixth Amendment right of confrontation
requires trials to be severed if a nontestifying codefendant makes a statement
that directly incriminates the moving defendant. Blackman, 201 Ariz. 527, ¶¶ 42,
48, 50, 38 P.3d at 1203, 1204, 1205; see also State v. Tucker, 231 Ariz. 125, ¶ 40, 290
P.3d 1248, 1264 (App. 2012) (recognizing “‘facially incriminating’” evidence from
codefendant as ground for severance under Rule 13.4), quoting State v. Murray,
184 Ariz. 9, 25, 906 P.2d 542, 558 (1995).




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                                Opinion of the Court

¶10          We may resolve the present appeal based solely on Christian’s
motion to sever trials pursuant to the Sixth Amendment and the Bruton line of
cases, due to Orel’s recorded news interview. The state did not dispute at the
pretrial hearing that the interview “tends to be facially incriminating” to
Christian, and the state conceded it would be inadmissible in a separate trial
against him. Contrary to the state’s assertion on appeal, that video is also
“testimonial” within the meaning of Crawford, and therefore subject to the
Confrontation Clause, because it is a “‘solemn declaration . . . made for the
purpose of establishing or proving some fact.’” State v. Boggs, 218 Ariz. 325, ¶ 56,
185 P.3d 111, 123 (2008), quoting Crawford, 541 U.S. at 51. In the video, Orel states
his intention in granting the interview is to “clear everything out.” His words
thus acknowledge a testimonial intent and reflect that he “‘would reasonably
expect [his pretrial statements] to be used prosecutorially.’” State v. Parker, 231
Ariz. 391, ¶ 38, 296 P.3d 54, 65-66 (2013), quoting Crawford, 541 U.S. at 51. And,
although no detective was present, Orel made his statements while in custody,
pending prosecution for the events that he addressed, and did so in the presence
of a video camera that he knew would memorialize anything he said. This
would lead “a reasonable person in the position of the declarant [to] objectively
foresee that his statement might be used in the investigation or prosecution of a
crime.” State v. King, 212 Ariz. 372, ¶ 21, 132 P.3d 311, 316 (App. 2006), quoting
United States v. Summers, 414 F.3d 1287, 1302 (10th Cir. 2005). By any measure,
the video was testimonial evidence.

¶11          The video also contained hearsay evidence that was inadmissible
against Christian. Hearsay is defined as an out-of-court statement offered to
prove the truth of the matter asserted. Ariz. R. Evid. 801(c); State v. Bass, 198
Ariz. 571, ¶ 20, 12 P.3d 796, 802 (2000); see State v. Roque, 213 Ariz. 193, ¶ 70, 141
P.3d 368, 389 (2006). Crawford acknowledges that testimonial statements are
exempt from the Confrontation Clause when they are used “for purposes other
than establishing the truth of the matter asserted.” 541 U.S. at 59 n.9. But Orel’s
recorded news interview does not fall within this exception. The video contains
at least two items of testimonial hearsay that incriminate Christian, specifically
Orel’s statements that (1) he was “sorry . . . but we’re not animals” and (2) his
family members “wanted us to like turn ourselves in.”

¶12         Even though Orel generally maintains his innocence in the video,
the state sought to introduce it into evidence, in part, for the truth of these


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                               Opinion of the Court

incriminating statements. When a person is “sorry,” it usually indicates that he
feels “sorrow, regret, or penitence.” Webster’s Third New Int’l Dictionary 2175
(1971). The latter sense specifically indicates a feeling of “sorrow for sins or
faults.” Id. at 1670. Being “sorry” is also nuanced in that it can indicate the
speaker either is “feeling or expressing sorrow.” The American Heritage Dictionary
1672 (5th ed. 2011). The state offered Orel’s statement that he was “sorry” not
necessarily for its truth about his emotions, but rather for its truth as an
expression of penitence and an acknowledgement of fault for the victim’s
murder, which Orel had characterized as an accident. Similarly, the state
introduced the second statement about his family members’ wishes to show the
truth of the matter asserted—namely, that they wanted Christian, Orel, and Juan
to turn themselves in. This statement, in turn, allowed the jury to infer that the
brothers’ family, including their mother, believed them to be involved in the
August 5 offenses and hiding in Mexico. As the state summarized during closing
argument:

            [Orel] was there, because he says over and over again, it
            was an accident, I am sorry, the sort of thing that people
            would say if they were there, because he was, just like
            Juan . . . said, and just like other people saw that day,
            and that’s why he left to Mexico, that’s why Christian
            Vasquez left for Mexico, that’s why Juan . . . left for
            Mexico, which is why we don’t have masks or guns.

¶13          On appeal, the state analogizes this case to Richardson. There, the
Supreme Court held the Confrontation Clause does not require severance if a
codefendant’s statement is not “facially incriminating” to a defendant, but rather
becomes incriminating “only when linked with evidence introduced later at
trial.” 481 U.S. at 207, 208. In such a situation, the constitution permits “the
admission of a nontestifying codefendant’s confession with a proper limiting
instruction.” Id. at 211. The state maintains Orel’s use of “nondescriptive plural
pronouns” such as “we” and “us” did not facially incriminate Christian and
require severance. The state therefore concludes reversal is not warranted here.
This argument fails for at least two reasons.

¶14         First, the pronouns used in the video leave no doubt to whom “we,”
“us,” or “our” refer. The video establishes that the questions refer to “you, your


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                                Opinion of the Court

brother and some friends.” The case is thus distinguishable from Richardson,
which expressly did not apply its holding to situations where “the defendant’s
name has been replaced with a . . . neutral pronoun.” Id. at 211 n.5. The present
case is instead similar to Gray. There, the Court found severance required when
a statement had been obviously redacted to include blank spaces in lieu of
proper names. 523 U.S. at 189, 197. The problem with such evidence, the Court
reasoned, is that it still “function[s] the same way grammatically” as a statement
naming a defendant; that is, it incriminates the defendant and essentially points a
finger at him. Id. at 194. The same problem is created by unique or specific
descriptions of an individual. Id. at 195. “[Y]our brother” is just such a
description that plainly identifies Christian as the topic of Orel’s incriminating
statements.

¶15          Despite the state’s claim that the first-person pronouns in the video
possibly could refer “to the other accomplices not on trial,” the fact remains that
they do not. In the news interview, Orel notes that police had “found three
names” and had “said it was you guys,” referring to himself, Christian, and Juan.
Orel uses the words “we” or “us” when discussing the criminal proceedings or
offering some of his apologies. His use of first-person pronouns contrasts with
his use of third-person pronouns and descriptions of other, unnamed
individuals: “[t]hey [who] involved me in it,” “a snitch,” “[w]hoever snitched
me out, snitched us out,” and “the other three [possible suspects] . . . over here in
Tucson.” In the video, “we” and “us” refer to, at most, the three relatives and
named suspects who were sought by the police and who had been hiding in
Mexico: Orel, Christian, and Juan. But given Juan’s cooperation with the police,
and Orel’s negative description of him as a “snitch,” the two people “we” and
“us” refer to consistently and unambiguously are Orel and Christian. Like the
defendant in Gray, Christian was thus directly implicated by Orel’s news
interview because his statements “obviously refer directly to someone, often
obviously the defendant, and . . . involve inferences that a jury ordinarily could
make immediately, even were the confession the very first item introduced at
trial.” 523 U.S. at 196. The trial court therefore erred in denying the motion to
sever.

¶16          The state’s argument also suffers a second, independent defect.
Even if the state were correct that the video does not require severance pursuant
to Richardson, reversal still would be required due to the trial court’s inadequate


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                                Opinion of the Court

jury instructions. The state overlooks that Bruton, Richardson, and Gray are all
distinguishable in the critical respect that the courts in those cases provided
instructions that expressly limited the admissibility of the codefendants’
statements. In Bruton, “the trial judge instructed the jury that although Evans’
confession was competent evidence against Evans it was inadmissible hearsay
against [Bruton] and therefore had to be disregarded in determining [Bruton]’s
guilt or innocence.” 391 U.S. at 125. In Richardson, “[a]t the time the confession
was admitted, the jury was admonished not to use it in any way against
[defendant Marsh],” 481 U.S. at 204, and the court repeated the same instruction
after closing arguments. Id. at 205. In Gray, “the trial judge specified that the
confession was evidence only against Bell; the instructions said that the jury
should not use the confession as evidence against Gray.” 523 U.S. at 189. The
central question in all these cases was whether such instructions were adequate
to protect the defendants’ confrontation rights, or whether severance was
required notwithstanding the instructions. See id. at 188, 192; Richardson, 481 U.S.
at 206-07, 211; Bruton, 391 U.S. at 126.

¶17          Here, as noted above, the trial court never limited the admissibility
of the video. It merely instructed the jury as follows:

                  There are 2 defendants. You must consider the
            evidence in the case as a whole. However, you must
            consider the charge[s] against each defendant
            separately.

                  Each defendant is entitled to have the jury
            determine the verdict as to each of the crimes charged
            based upon that defendant’s own conduct and from the
            evidence which applies to that defendant, as if that
            defendant were being tried alone.

                  The defendant’s conduct may include acting as a
            principal, an accomplice, or a co-conspirator.

Despite the state’s claim to the contrary, the above passage demonstrates that the
court did not actually prohibit the jury from considering Orel’s out-of-court
statements from the video when assessing Christian’s guilt. That is, the court


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                                Opinion of the Court

never told the jury that the video could be considered only as “evidence which
applies to” Orel’s culpability, and could not be considered as evidence against
Christian. Cf. Blackman, 201 Ariz. 527, ¶ 35, 38 P.3d at 1202 (permitting joint trial
where jury instructed statement was “admitted against [declarant] only, and is
not to be considered . . . as evidence against any of the other defendants”). While
the above instruction could serve to reinforce an earlier, express limitation on the
admission of evidence, see id. ¶ 38, without such an antecedent, the instruction
simply reminds the jury to keep the evidence about each defendant distinct when
weighing it. In the court’s other instructions here, it informed jurors they were to
determine the facts from the evidence produced in court. So it was reasonable
and consistent with the court’s instructions as a whole for the jury to conclude it
could consider Orel’s statements to the extent they implicated Christian. Unlike
in Richardson, 481 U.S. at 206, the presumption that jurors follow instructions in
no way prevented a violation of his right to confront adverse witnesses.

¶18         Indeed, the prosecutor’s own statements during closing argument
suggested the jury could consider the video as evidence against Christian. She
argued:

             [W]ith the evidence that you have, and what [that]
             evidence is, is the testimony that came out of that stand,
             that is evidence. The pictures that were admitted
             during this trial, the documents, the plea, and that
             video, that is what you get to decide this case. And in
             looking at all that, it is beyond a reasonable doubt that
             these defendants committed this crime, that they are
             guilty of these offenses. . . . If you are firmly convinced,
             from listening to the testimony and looking at these
             pictures, from seeing what Orel Vasquez had to say on
             that day, if you are firmly convinced that these
             defendants committed these crimes, . . . if you are firmly
             convinced of that, then you have to find them guilty,
             that’s what the law says, and they are.

¶19         In light of these statements from the prosecutor, we reject the state’s
contention that the error here was harmless. An error is harmless only if a
reviewing court can determine beyond a reasonable doubt that it did not affect


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                                Opinion of the Court

the verdict. State v. Bocharski, 218 Ariz. 476, ¶ 38, 189 P.3d 403, 413 (2008). Proof
beyond a reasonable doubt is “the highest burden that exists in our judicial
system.” United States v. Garcia, 94 F.3d 57, 63 (2d Cir. 1996). And the burden of
showing harmlessness rests with the state. State v. Henderson, 210 Ariz. 561, ¶ 18,
115 P.3d 601, 607 (2005).

¶20          Subtracting the video here would put this case in a very different
evidentiary posture, because it would remove significant and objective
corroborating evidence from the state’s case. As the prosecutor pointed out in
summation, the video was “great” from an evidentiary perspective “because you
don’t just have a detective up there saying Orel Vasquez told me such and such
and such.” In the absence of the video, the evidence of guilt was strong, but
largely subjective and open to credibility challenges. The evidence was not
overwhelming. The case against Christian ultimately depended on testimony
rather than physical evidence, and the most probative testimony highlighted by
the state—specifically, his mother’s recanted statements and Juan’s account at
trial—was interrelated with, and substantiated by, Orel’s incriminating
statements in the video. Without the video, therefore, the jury might have
credited his mother’s recantation or might have doubted Juan’s testimony, given
that Juan had accepted a favorable plea agreement, had given an account of
events that tended to minimize his role in the crime, and had admitted lying to a
news reporter about the incident, even after he had already spoken about it to
the police. In a separate trial, a reasonable doubt defense would have been much
more plausible.

¶21           In all likelihood, the inadmissible video also had an evidentiary
impact beyond Orel’s statements therein. The state argued below that the video
was significant in that it shows Orel “smirking” and “trying to be cute,” which
generally “shows what type of person he is when he is talking about this horrible
crime.” Christian characterizes Orel’s attitude in the video as indescribably
“reprehensible.” Christian further maintains “the jury naturally would apply its
prejudice to Christian as well as to Orel” because they were brothers and were
seated together at the defense table. The state acknowledges on appeal that the
video was incriminating largely because of Orel’s “elusiveness and demeanor” in
it. For all these reasons, we cannot say the denial of severance had no effect on
the verdicts.



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                                Opinion of the Court

¶22          We emphasize that our decision to reverse the convictions and
sentences here is based solely on the erroneous admission against Christian of
Orel’s statements contained within the news interview video at their joint trial.
We have elected, for several reasons, not to resolve the evidentiary questions
concerning Orel’s other out-of-court statements reported by his mother and Juan.
First, federal Confrontation Clause jurisprudence concerning testimonial
statements is unsettled and subject to rapid development. See Michigan v. Bryant,
___ U.S. ___, ___ n.3, 131 S. Ct. 1143, 1155 n.3 (2011) (reserving ruling on
testimonial character of statements to private parties); see also State v. Medina, 232
Ariz. 391, ¶ 60, 306 P.3d 48, 63 (2013) (observing Williams v. Illinois, ___ U.S. ___,
132 S. Ct. 2221 (2012), supplies “no binding rule for determining” what is
testimonial); State v. Shivers, 230 Ariz. 91, n.5, 280 P.3d 635, 637 n.5 (App. 2012)
(describing federal precedents as “choppy waters”). Second, we do not know
which specific statements the state might seek to introduce on retrial that would
require our analysis. Orel’s alleged statement to his mother that he was “scared
for the same thing,” for example, appears to be a paraphrased version of what
she had reported to the police. Third, we do not know the grounds or theories
on which the state will seek to introduce such out-of-court statements on
remand, nor do we know the grounds on which the defendant will oppose their
admission. Ruling on the admissibility of all the statements challenged here is
therefore premature.

                                    Disposition

¶23         Because the trial court erred in denying Christian’s motion to sever
trials pursuant to Bruton and the Sixth Amendment to the United States
Constitution, we reverse his convictions and sentences and remand the case for
further proceedings consistent with this opinion.




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