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State v. Brubaker

Court of Appeals of Arizona, First Division, Department B

August 6, 2013

STATE OF ARIZONA, Appellee,
v.
BRIAN JOSEPH BRUBAKER, Appellant.

Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause No. CR2008-155927-001 The Honorable Karen L. O'Connor, Judge.

Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals and Barbara A. Bailey, Assistant Attorney General Attorneys for Appellee.

Debus, Kazan & Westerhausen Phoenix By Tracey Westerhausen Attorneys for Appellant.

MEMORANDUM DECISION

RANDALL M. HOWE, Presiding Judge

¶1 Brubaker appeals his convictions and sentences for manslaughter, endangerment and leaving the scene of a fatal accident. He contends his trial was unfair due to prosecutorial misconduct. He also argues the trial court erred in its determination that witness testimony was inadmissible hearsay. For the reasons that follow, we find no error and affirm.

BACKGROUND [1]

¶2 After spending the day with friends at a bar and drinking "six or seven" beers, Brubaker drove westbound on the Santan Freeway and drove "right through" a white pickup truck that was also proceeding westbound at approximately 7:14 p.m. The pickup flipped, "hurl[ed]" along the road and eventually came to a stop upside down on the right shoulder. The truck's driver, G.G., was injured but survived; his girlfriend, however, did not.

¶3 After Brubaker's car came to a stop in the median, he got out and ran away. He made a number of telephone calls to his wife and to a friend, J.C., who was a Michigan police officer. His wife picked him up, and he turned himself in to the police. Brubaker submitted to a blood draw at 10:00 p.m. to test for alcohol intoxication. Although Brubaker told officers he had nothing to drink after the collision, his blood sample had an alcohol concentration of .142 percent.

¶4 Brubaker was indicted for manslaughter, a class two felony; endangerment, a class six felony; and leaving the scene of a fatal accident, a class two felony.[2] The case proceeded to a jury trial. During the testimony of the surviving victim, the State asked whether he had settled with Brubaker's insurance company. Before the witness could answer, the court sustained Brubaker's objection on relevance grounds. Brubaker then unsuccessfully moved for a mistrial arguing evidence of a settlement improperly infers guilt. Later, during direct examination of J.C., Brubaker's counsel asked questions related to comments Brubaker made to J.C. when he called after the collision. The court sustained the State's hearsay objections.

¶5 The jury found Brubaker guilty of the three charges. Brubaker moved for a new trial, arguing that the court's evidentiary rulings relating to G.G.'s and J.C.'s testimony resulted in an unfair trial. The court denied the motion, imposed presumptive terms of imprisonment, and Brubaker appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, -4033(A) (West 2013).[3]

DISCUSSION

I. G.G.'s Testimony

¶6 Brubaker contends that he was entitled to a mistrial because the State's question about settlement with Brubaker's insurance company amounted to misconduct. We review for an abuse of discretion. State v. Lee, 18 ...


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