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State v. Hulsey

Supreme Court of Arizona

January 18, 2018

State of Arizona, Appellee,
v.
Bryan Wayne Hulsey, Appellant.

         Appeal from the Superior Court in Maricopa County The Honorable Joseph C. Kreamer, Judge No. CR2007-111635

          Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor General, Lacey Stover Gard, Chief Counsel, Kristina Reeves (argued), Assistant Attorney General, Capital Litigation Section, Phoenix, Attorneys for State of Arizona

          David Goldberg, Esq. (argued), Fort Collins, CO; Thomas A. Gorman, Attorney at Law, Sedona, Attorneys for Bryan Wayne Hulsey.

          BOLICK JUSTICE authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, JUSTICES BRUTINEL, TIMMER, GOULD, and BERCH (RETIRED) [*] joined.

          BOLICK JUSTICE.

         ¶1 Bryan Wayne Hulsey was sentenced to death after a jury found him guilty of the first degree murder of an on duty peace officer. Hulsey also received a consecutive nine-year sentence for his conviction of attempted first degree murder of another on duty peace officer. This Court has jurisdiction over this automatic appeal under article 6, section 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031, -4033(A). We affirm Hulsey's convictions and prison sentence, but, consistent with Lynch v. Arizona (Lynch III), 136 S.Ct. 1818 (2016), vacate his death sentence and remand for new penalty phase proceedings.

         BACKGROUND

         ¶2 On the morning of February 19, 2007, Hulsey was the front- seat passenger in a car that police pulled over in a routine traffic stop in Glendale. Officer David Goitia, who initiated the traffic stop, asked the three occupants for identification. As Officer Goitia took the identifications back to his police cruiser, Officer Anthony Holly walked over to the passenger side of the car.

         ¶3 After determining that both the driver and backseat passenger had outstanding warrants, Officer Goitia arrested the driver and placed her in his police car. He then approached Hulsey and asked about the identification Hulsey had provided. Hulsey immediately became agitated, and Officer Goitia told him to get out of the car so that he could pat Hulsey down for weapons for the officers' safety.

         ¶4 Hulsey stepped out of the car and as the pat-down commenced, he took a step back, reached into his waistband, and pulled out a gun. Hulsey aimed at the officers and started firing. Hulsey and Officer Goitia exchanged gunfire as the officer ran for cover and Hulsey ran from the scene. Hulsey made it around the street corner but was soon surrounded by responding officers and arrested. Officer Holly died of a gunshot wound to the head.

         ¶5 Hulsey was charged with first degree murder of a law enforcement officer, attempted murder of a law enforcement officer, and misconduct involving weapons. The State sought the death penalty. Before trial, the court granted Hulsey's motion to sever the weapons charge.

         ¶6 At trial, the State presented testimony from both Officer Goitia and the back-seat passenger to establish that Hulsey shot Officer Holly. Hulsey's primary defense was that Officer Holly had been accidentally shot and killed by Officer Goitia.

         ¶7 Hulsey presented data from "Shot Spotter, " a system designed to pick up the sound of gunfire. Hulsey used this data to attempt to show that he fired only one shot that morning. He argued that the investigation produced only one bullet from his gun at the scene, which contained no visible blood. Hulsey used the Shot Spotter data to support his contention that he did not fire his weapon near the cars, but Officer Goitia saw it in his waistband and panicked. Hulsey argued that Officer Goitia ran to the police vehicle to take a position of cover and fired the first ten shots at Hulsey. Hulsey claims he then ran and, while running away, he turned and fired a single shot in Officer Holly's direction.

         ¶8 The jury found Hulsey guilty on both counts and that the State had proven two aggravating factors justifying a death sentence: that Hulsey was previously convicted of a serious offense, A.R.S. § 13-751 (F)(2), and that Officer Holly was an on duty peace officer killed in the course of his official duties, A.R.S. § 13-751(F)(10). After considering mitigation evidence, the jury found a death sentence appropriate and the court imposed that sentence and a consecutive nine-year sentence for the attempted first degree murder conviction.

         DISCUSSION

         I. Pretrial Issues

         A. Destruction of evidence

         ¶9 An x-ray taken during Officer Holly's autopsy revealed a few scattered bullet fragments in his skull. The medical examiner, Dr. John Hu, did not to recover the fragments because he thought they were too small to have forensic value and doing so would "leave significant mutilation or disfiguring of Mr. Holly's face." Officer Holly's remains were later cremated. At trial, the court gave a Willits instruction, State v. Willits, 96 Ariz. 184, 191 (1964), allowing the jury to infer that the destroyed fragments were not from Hulsey's gun.

         ¶10 Hulsey claims that the failure to extract and preserve bullet fragments deprived him of due process because they would have conclusively proved his innocence. Only two guns were deployed that morning: Officer Goitia's .40-caliber Glock with hollow point rounds and Hulsey's .357 magnum with jacketed soft point ammunition. If the bullet that killed Officer Holly did not come from Hulsey's gun, he would not be guilty of the death-qualifying charge. See A.R.S. § 13-203(A)(1) (defendant's conduct must be the cause-in-fact). For the following reasons, we conclude that the trial court did not abuse its discretion in denying Hulsey's motions related to the alleged destruction of evidence. 1. Motion to exhume

         ¶11 Hulsey moved early in the case to exhume Officer Holly's body to retrieve the bullet fragments. The State opposed the motion as moot, stating that Officer Holly's body had been cremated. Acknowledging there was no body to exhume, Hulsey withdrew his request for oral argument on the matter, yet did not withdraw his motion. The trial court denied the motion "under [the] circumstances." We review a denial of a motion to exhume for abuse of discretion. State v. Atwood, 171 Ariz. 576, 604-05 (1992), disapproved on other grounds by State v. Nordstrom, 200 Ariz. 229, 241 ¶ 25 (2001).

         ¶12 Hulsey never requested access to the cremated remains. Hulsey's motion to exhume applied only to the physical body. In response to his original motion to exhume, Hulsey was informed of the cremation, to which he responded that the "logic seems clear" that the body cannot be exhumed. Although never withdrawing the motion to exhume, Hulsey conceded that "the answer to the issue of exhumation seems clear." In his reply, Hulsey stated that issues generated from the cremation existed, but that those issues would "be raised by the defense in future motions - not in the present motion." However, Hulsey filed no motion concerning access to the cremated remains.

         ¶13 Even if the motion to exhume applied to the cremated remains, the trial court did not abuse its discretion in denying it. "Exhumation of the victim's body is to be allowed only under extraordinary circumstances. Where existence of the evidence sought was so speculative and uncertain, and its value in aiding defendant's defense so conjectural and remote, the trial court properly exercised its discretion in refusing appellant's motion." Atwood, 171 Ariz. at 604-05 (quoting Commonwealth v. Kivlin, 406 A.2d 799, 805 (Pa. 1979)).

         ¶14 This case is much like Atwood, in which the defense presented only "cryptic promises" that relevant evidence could be discovered. Id. at 604. When the trial court ruled on Hulsey's claim, the notion that any fragments in the remains still held evidentiary value was unsubstantiated. Even today Hulsey concedes on appeal that "the record is silent as to whether the fragments in fact still exist in the decedent's remains." Thus, even if the motion to exhume applied to the cremated remains, the prospect that analysis of the remains would aid Hulsey's defense is speculative. Denial of the motion to exhume was not an abuse of discretion.

         ¶15 Hulsey also requests this Court to stay his appeal and "remand the case for resolution of [the] factual issue" of whether the fragments were destroyed. Hulsey waived his right to an evidentiary hearing by conceding that the evidence was destroyed in his two motions to dismiss for bad faith destruction of evidence and only now requesting access to the remains. See State v. Gutierrez, 229 Ariz. 573, 579 ¶ 32 (2012) ("[W]hen there are no material facts in dispute and the only issue is the legal consequence of undisputed material facts, the superior court need not hold an evidentiary hearing."); see also State v. Trostle, 191 Ariz. 4, 13 (1997) (finding failure to request evidentiary hearing about juror misconduct at trial waived on appeal). The State avowed in response to the first motion to exhume that the body was unavailable for inspection because the body had been cremated. Furthermore, Hulsey has given this Court no reason to assume the fragments still exist. 2. Motion to dismiss

         ¶16 After it was revealed that Officer Holly was cremated, Hulsey moved to dismiss the charges for bad faith destruction of evidence. The trial court concluded that there was insufficient evidence of bad faith on the State's part. However, one year later, Hulsey renewed his motion to dismiss in light of new evidence-an affidavit from a firearms expert- purporting to show bad faith destruction of the bullet fragments. The court denied the motion, stating that bad faith was not demonstrated.

         ¶17 Hulsey argues that the trial court abused its discretion in denying the motions to dismiss. Specifically, he alleges that the trial court erred by (1) applying a too-narrow standard based on Youngblood and thereby overlooking Trombetta's import, see Arizona v. Youngblood, 488 U.S. 51, 58 (1988); California v. Trombetta, 467 U.S. 479, 488-89 (1984); (2) twice denying a request to hold an evidentiary hearing; and (3) ruling on a record that showed the fragments were constitutionally material and sufficient evidence of bad faith. A trial court's denial of a motion to dismiss an indictment is reviewed for abuse of discretion. State v. Matlock, 109 Ariz. 193, 195 (1973). We defer to a trial court's findings of fact when they are supported by the record and not clearly erroneous, Shooter v. Farmer, 235 Ariz. 199, 200 ¶ 4 (2014), but review legal conclusions de novo. State v. Newell, 212 Ariz. 389, 397 ¶ 27 (2006). The trial court did not err in denying the motions to dismiss. a.Destruction of evidence standard

         ¶18 In order for a state to have a constitutional duty to preserve evidence, the "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Trombetta, 467 U.S. at 488-89; see also United States v. Agurs, 427 U.S. 97, 112 (1976) ("[I]f the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record."). On the other hand, where the evidence is only "potentially useful, " a defendant must show bad faith on the part of the police for the destruction of evidence to violate due process. Illinois v. Fisher, 540 U.S. 544, 547-48 (2004) (quoting Youngblood, 488 U.S. at 58); see also State v. Goudeau, 239 Ariz. 421, 442 ¶ 44 (2016).

         ¶19 Hulsey argues that when evidence is "constitutionally material, " "even in the absence of proof of bad faith[, ] a defendant is entitled to relief under the Due Process Clause where the destroyed evidence is probably or likely exculpatory rather than in Youngblood only potentially exculpatory." This is incorrect. We have held that "the same bad-faith test applies to identify violations of either the Arizona due process clause or the federal due process clause." State v. Glissendorf, 235 Ariz. 147, 151 ¶ 14 (2014). The court here applied the proper standard.

         ¶20 Hulsey alternatively requests that this Court reconsider the scope of the bad faith requirement under due process mandates in our state constitution. We decline to do so. Our application of both Youngblood and Trombetta adequately encompasses fundamental fairness required by our state constitution whether the evidence is material and exculpatory or only potentially exculpatory. b.Requests for evidentiary hearing

         ¶21 Hulsey argues that the trial court abused its discretion by twice refusing to hold an evidentiary hearing on his motions to dismiss for bad faith destruction thereby "preclud[ing] this Court [from] . . . meaningfully review[ing] its resolution of fact intensive issues." A failure to hold an evidentiary hearing is reviewed for abuse of discretion. State v. Spears, 184 Ariz. 277, 289 (1996). We conclude that neither denial of the requests for evidentiary hearings was error.

         ¶22 At oral argument on the first motion to dismiss for bad faith destruction of evidence, the trial court concluded that Hulsey failed to show that, at the time of the destruction, the State believed the fragments had evidentiary value. The defense argued that the medical examiner allegedly disobeyed clear protocol when he saw the fragments on the x-ray and did not retrieve them; instead, the medical examiner asked Detective Bustoz whether he should gather them and the detective purportedly told him "no."[1] The court found that the lack of apparent evidentiary value at the time of destruction militated against finding the State acted in bad faith.[2]

         ¶23 Trial courts have broad discretion in determining whether an evidentiary hearing is required, but "should err on the side of granting an evidentiary hearing so that they can gather as much relevant information as possible before making their rulings." Id. Apart from an uncontested claim that the medical examiner may not have followed proper protocol- that is, to "recover foreign bodies of evidentiary value" - the defense failed to present any evidence that would show bad faith as required by Youngblood. State v. Walker, 185 Ariz. 228, 238 (App. 1995) ("[B]ad faith has less to do with the actor's intent than with the actor's knowledge that the evidence was constitutionally material." (internal quotation marks omitted) (citing Youngblood, 488 U.S. at 61)). Nothing alerted Detective Bustoz or Dr. Hu that Hulsey would allege that Officer Goitia shot Officer Holly. Because at worst the failure to extract the fragments only amounted to negligence, the court did not abuse its discretion in not granting an evidentiary hearing.

         ¶24 When Hulsey renewed his motion, he claimed that he could "now affirmatively demonstrate that he has been prejudiced by the bad faith actions of the State." The pertinent addition from the first motion was an affidavit from Jaco Swanepoel, Hulsey's firearms expert. Swanepoel declared that "no piece of forensic evidence . . . should arbitrarily be left unrecovered. . . . Fragments should be recovered for examination, irrespective of size." Hulsey argued that bad faith was established when the "experienced prosecutor, experienced homicide detective and the medical examiner all recognized the constitutional materiality of the bullet fragments left within the victim's head, yet they intentionally failed to preserve the evidence."

         ¶25 The trial court agreed that it was reasonable to assume that fragments could be used to establish the identity of the weapon, but remained convinced that it was "merely potentially exculpatory at best." We agree. It is not clear to us now, nor was it clear to the trial court at the time, that the fragments would definitively confirm Hulsey's theory. When he renewed the motion, Hulsey's only new basis for his argument that the trial court abused its discretion by failing to hold an evidentiary hearing was Swanepoel's affidavit, which addressed harm rather than bad faith and therefore did not support an evidentiary hearing. Cf. State v. Grounds, 128 Ariz. 14, 15 (1981) (explaining that because the record was "devoid of evidence, " there was nothing upon which the trial court could base its ruling). Therefore, the evidence was only potentially exculpatory and Hulsey provided no new reason for granting an evidentiary hearing. The court's refusal to grant an evidentiary hearing was not an abuse of discretion. c. Motions to dismiss

         ¶26 At trial, Hulsey also argued that the case should have been dismissed because the State acted in bad faith by not preserving bullet fragments. As discussed previously, supra ¶¶ 18-19, because its exculpatory value was not readily apparent, Hulsey cannot show bad faith on the State's part in not preserving the evidence. The trial court therefore did not abuse its discretion in ruling that the destruction of the bullet fragments did not violate due process. See Fisher, 540 U.S. at 549 (applying Youngblood bad faith requirement when destroyed evidence was only potentially useful).

         ¶27 Hulsey also claimed that the State acted in bad faith in releasing Officer Holly's body to his family without first notifying the defense and by the examiner violating internal protocol to "recover foreign bodies of evidentiary value." See Ariz. R. Crim. P. 28.2(e). Releasing a victim's body to the family does not in itself show bad faith. See Lopez v. State, 86 P.3d 851, 862 (Wyo. 2004). Moreover, Hulsey's cited authority for the State's purported duty to notify the defense pursuant to Rule 28.2(e) applies to "post-verdict proceedings" and does not apply in pretrial discovery. State v. Superior Court, 127 Ariz. 175, 177 (1980) ("Rule 28.2 [is] therefore irrelevant to defendant's pretrial motion for discovery or in the alternative to suppress."). Furthermore, the allegation that the medical examiner failed to follow internal policies is without merit. The medical examiner testified that he did not attempt to recover the fragments because he believed "they are likely to have no forensic value." That is, the medical examiner was following internal protocol because he is not required to recover foreign bodies that he does not believe have evidentiary value.

         ¶28 At trial, Hulsey cross-examined the medical examiner and asked detailed questions to Detective Bustoz about the autopsy and why the fragments were not obtained. At Hulsey's request, the jury was given a Willits instruction telling the jury it could draw a negative inference against the State for failing to preserve the evidence, thereby mitigating any prejudice. The trial court did not abuse its discretion in denying the motion to dismiss for bad faith destruction of evidence.

         B. Refusal to compel witness to testify

         ¶29 Hulsey argues that the trial court erred when it refused to compel the driver of the car, Giota "Niki" Kostas, to testify. Under the Sixth Amendment, a defendant may compel a witness to testify, but that "right is not absolute and will give way when the witness's preservation of his own Fifth Amendment rights would prevent him from answering relevant questions." State v. Martinez, 218 Ariz. 421, 428 ¶ 26 (2008) (internal quotation marks and citation omitted). Hulsey claims that the trial court erred by basing its decision on the nonexistent doctrine of anticipatory perjury. We review a denial of a motion to compel for abuse of discretion. Id. ¶ 25.

         ¶30 Before trial, Kostas, believing she may have criminal culpability related to the shooting, requested a lawyer when defense counsel attempted to interview her. At a case management conference, where Hulsey sought to elicit information from Kostas, Kostas' attorney stated that he would advise Kostas to invoke the privilege "if my client's understanding of or recollection is any different from that audio and video recorded interview." He avowed that "if [Kostas] were directed to answer those questions to the best of her recollection, . . . it could possibly be in contradiction to perhaps what the state has on audio or video, and for that reason, I believe my client could be exposed to potential charges, new charges . . . ." The trial court allowed Kostas to assert her Fifth Amendment privilege, determining that Kostas had reasonable grounds to apprehend prosecution and so she could invoke her Fifth Amendment privilege.

         ¶31Hulsey claims that the trial court ruling was based on "anticipatory" perjury because it was premised on Kostas potentially giving testimony at trial that differed from her previous statements. The trial court's ruling reflects that Kostas could still be charged with a crime that either had not been charged yet or does not have a statute of limitations. Because the trial court properly concluded that Kostas had reasonable grounds to fear criminal prosecution based on her testimony, the court did not abuse its discretion by not compelling Kostas to testify.

         C. Striking Juror 123 for cause

         ¶32 Hulsey argues that the trial court erred in striking Juror 123 from the venire for his views on the death penalty. See State v. Anderson, 210 Ariz. 327, 337-38 ¶¶ 25-26 (2005) ("The Sixth Amendment forbids excusing potential jurors for cause solely because of their general objections to the death penalty." (citing Witherspoon v. Illinois, 391 U.S. 510, 522 (1968))). Potential jurors should be excluded if, after questioning on whether they can set aside their personal views, the jurors would remain unwilling or unable to perform their duty or follow the judge's instructions. See id. A trial court's decision to strike a juror for cause is reviewed for abuse of discretion. State v. Burns, 237 Ariz. 1, 13 ¶ 22 (2015).

         ¶33 During voir dire, Juror 123 gave inconsistent answers to questions regarding his feelings about the death penalty. In the juror questionnaire, Juror 123 stated that even if a person killed someone, he should never be sentenced to death. But Juror 123 selected "no" to whether his views against the death penalty were so strongly held that he would be prevented or substantially impaired from performing his duty as a juror. However, he also marked on the questionnaire that he would not be able to enter the verdict of death after hearing all the evidence.

         ¶34 When examined by the defense, Juror 123 said he did not believe in the death penalty. After further questioning he wavered slightly, stating that, "I guess it's on the table, " and that he "could possibly change [his] mind." He finally concluded that he might change his mind if he was backed up against a wall or able to debate the issue. When the State questioned Juror 123 about his inconsistent answers, he confessed that he was confused. He explained that his unequivocal "no" to whether he could enter a verdict of death was incorrect, but that he would not sentence someone to death even if the person killed another.

         ¶35 The court concluded that the answers to the questionnaire indicating Juror 123 would not sentence someone to death were "crystal clear." The court also ruled that, based on its observation, Juror 123's views on the death penalty would substantially impair his performance as a juror.

         ¶36 This was not a scenario in which a juror expressed only "general objections to the death penalty." Witherspoon, 391 U.S. at 522 (prohibiting exclusion for general objections, or expressed conscientious or religious scruples against death penalty). The juror questionnaire showed that Juror 123 would not be able to render a death sentence. See Burns, 237 Ariz. at 13 ¶ 23 ("A potential juror need not object to the death penalty in every possible case to warrant a dismissal for cause."); State v. Garcia, 224 Ariz. 1, 9 ¶¶ 18-19 (2010) (finding no error in striking juror who was conflicted about imposing the death penalty). Juror 123's inconsistent responses to follow-up questions did not assuage the trial court's concern that his views of the death penalty would substantially impair the performance of his duties as a juror. See Wainwright v. Witt, 469 U.S. 412, 424 (1985) ("[J]uror's bias [need not] be proved with unmistakable clarity." (internal quotation marks omitted)); Burns, 237 Ariz. at 13 ¶ 23 ("A trial judge must consider the entirety of a prospective juror's demeanor and behavior; if a juror's promise to uphold the law is coupled with ambiguous statements and uncertainty, the trial judge may strike the juror for cause."). Accordingly, the trial court did not abuse its discretion in striking Juror 123 for cause.

         ¶37 Hulsey further argues that it was structural error for the trial court to curtail counsels' questioning of Juror 123. However, defense counsel exhausted all questions and turned over the juror to the prosecution before the court excused the juror. The court allowed questioning to continue until the juror, when clarifying his answer on the questionnaire, reiterated that if someone kills another he "would not sentence them to death." "A trial court has discretion to determine the scope of voir dire, which we will not overturn absent an abuse of that discretion." State v. Smith, 215 Ariz. 221, 230 ¶ 37 (2007). There was no abuse of discretion in discontinuing questioning when the defense was permitted to ask all the questions it wanted.

         II. Guilt Phase Issues

         A. Admission of other-act evidence under Rule 404(b)

         ¶38 Hulsey claims that the admission of evidence involving his methamphetamine use the night before and the morning of the crimes was improper under Arizona Rule of Evidence 404(b). Normally, this Court reviews admission of other-act evidence for abuse of discretion. State v. VanWinkle, 230 Ariz. 387, 392 ¶ 18 (2012). However, Hulsey failed to specifically object in the trial court to any admission of evidence on 404(b) grounds. When evidence is admitted without objection, this Court reviews for fundamental error. State v. Hargrave, 225 Ariz. 1, 9 ¶ 18 (2010).

         ¶39 Hulsey moved to compel the State to provide notice of the evidence it intended to introduce at trial pursuant to Rule 404(b). Hulsey wanted to "avoid prejudice before the jury, and to avert any surprise through the opportunity for pretrial objection."

         ¶40 In response, the State explained that it intended to present evidence that Hulsey had used methamphetamine on the day before the murder, and that on the morning of the shooting when Officer Goitia began following the car, Hulsey pulled out a pipe and methamphetamine and gave it to back-seat-passenger Patsy Jones to hide. After the State described the proposed opening statement, the trial court asked if Hulsey's motion related to those statements. The defense said "yes, " but questioned whether there was any factual basis for the statements, and also stated that the defense would "stand by the comments . . . already made in the motion." The motion only discussed the mandate that the prosecution provide a list of any prior acts evidence it intended to introduce. It did not contain an objection to this particular evidence.

         ¶41 In conducting its analysis under Rule 404(b), the trial court concluded that the probative value of the evidence was not outweighed by any prejudicial effect, and allowed the statements in the State's opening remarks. Additionally, in conducting a Rule 403 analysis of a picture of the contents of a duffel bag in the back seat of the car, which included a gun and drugs, the court noted that the presence of drugs "can relate to motive" and allowed Detective Bustoz to testify that methamphetamine was in the bag.

         ¶42 During the State's opening, the prosecutor mentioned Hulsey's methamphetamine use three times. He noted that on the night before the crimes and again about an hour before the murder, Hulsey smoked methamphetamine from a glass pipe. The State also mentioned that when the officer began following the car, Hulsey took the pipe and methamphetamine and asked Jones to hide them in the back seat.

         ¶43 During trial, evidence of the prior acts was elicited during Jones' direct examination when she testified that Hulsey and Kostas used methamphetamine the night before the murder. She testified that Hulsey pulled out a pipe and drugs at Jones' house when he arrived. She explained that Hulsey, Kostas, and she all took hits from the pipe. She also testified that once the police car began following them, Hulsey handed her the pipe and the bag to hide in the back seat. No objections were made to this testimony.

         ¶44 Hulsey asserts that the court allowed the mention of prior acts during opening statements over objection, but he is mistaken. His motion to compel contained no objection to discussing a specific "other act, " and he did not object on Rule 404(b) grounds at the hearing before the opening statements. Hulsey instead argued that the trial court did not properly scrutinize the evidence and that it was not relevant.

         ¶45 Rule 404 permits the introduction of evidence of "other" possibly prejudicial acts if a proper purpose is shown under subsection 404(b). State v. Lee, 189 Ariz. 590, 599 (1997). Evidence of other acts is admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ariz. R. Evid. 404(b). The evidence must also be relevant under Rule 402; the probative value of the evidence must not be substantially outweighed by the potential unfair prejudice under Rule 403; and "the court must give an appropriate limiting instruction if requested under Rule 105." Lee, 189 Ariz. at 599. Here, all four requirements were satisfied.

         ¶46 The admission of the use-of-meth evidence was proper because both the paraphernalia in the car and the drug use explain Hulsey's reaction to the police officers' presence and his behavior that followed. A reasonable inference is that he was agitated and pulled out the gun because he knew he had illegal substances on his person and in the car. The use of the drugs also explains Hulsey's agitation and flight, as well as his use of his gun.

         ¶47 The trial court ruled that the acts' probative value was not substantially outweighed by the prejudicial effect, and Hulsey provides no reason to disturb that ruling. See State v. Williams, 133 Ariz. 220, 230 (1982) (stating that Rule 403 findings should not be disturbed unless the trial court abused its discretion). Finally, Hulsey did not request a limiting instruction. Allowing admission of the evidence of prior acts was neither an abuse of discretion nor fundamental error.

         B. Instructions on lesser-included ...


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