State v. Steinle

OPINION

OROZCO, Judge:

¶ 1 The Maricopa County Attorney’s Office (the State) petitions this Court for special action relief, challenging the trial court’s order precluding it from introducing as evidence a modified, edited or cropped version of a video, because the full version of the video was unavailable. Because Arizona Rules of Evidence 106 and 403 require admission of the full video, we accept jurisdiction and deny relief.

BACKGROUND AND PROCEDURAL HISTORY

¶ 2 On December 12, 2012, Alejandra Moran attended a house party. On the same evening, a fight began in the street and a witness, Hector Ponce, used his cell phone to make a video recording of the fight. Several witnesses, including Moran, stated that in the minutes leading up to the altercation, there was both a verbal and physical altercation between Moran and the victim, L.U. Ponce “cropped” the first four and one half minutes from the video, sent the final thirty-one seconds of the video to a friend, and deleted the original video from his cell phone. The final thirty-one seconds of the video showed an individual, purported to be Moran, stab L.U. in the chest. Moran was subsequently indicted for first degree murder.

¶ 3 Detectives were unable to recover the full version of the video from Ponce’s phone. Moran moved to exclude the edited video, arguing Rule 106, the rule of completeness, and Rule 1001, the best evidence rule, did not allow admission of just a portion of the full video. Moran also raised chain of custody and hearsay objections. The trial court granted Moran’s motion and the State filed a motion to reconsider. The trial court denied the motion, and this special action followed.

SPECIAL ACTION JURISDICTION

¶ 4 Special action jurisdiction is proper when a party has no “equally plain, speedy, and adequate remedy by appeal.” Ariz. R.P. Spec. Act. 1. We have discretion to accept special action jurisdiction and we do so if a petitioner presents “an issue of first impression and one of statewide importance that is likely to recur.” State v. Bernstein, 234 Ariz. 89, 93, ¶ 6, 317 P.3d 630, 634 (App. 2014). Jurisdiction is also appropriate when rules require immediate interpretation. Id.

¶ 5 The parties agree the State has no speedy or adequate remedy on appeal. Moreover, this petition raises an issue of first impression regarding Rule 106. Thus, in the exercise of our discretion, we accept special action jurisdiction.

DISCUSSION

¶ 6 “We review a trial court’s ruling on admissibility of evidence for an abuse of discretion.” State v. Buccheri-Bianca, 233 Ariz. 324, 328, ¶ 7, 312 P.3d 123, 127 (App. 2013) (internal citations omitted). However, we review de novo the construction of the rules of evidence. State v. Payne, 233 Ariz. 484, 502, ¶ 49, 314 P.3d 1239, 1248 (2013).

I. The Video is a Statement

¶ 7 The State argues the trial court abused its discretion in excluding the edited video because the video is not a “statement” under Rule 106 and the trial court incorrectly applied the rule to “conduct.” Arizona Rule of Evidence 106 provides:

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

(Emphasis added.) Because this is an issue of first impression. “[i]t is appropriate to look to federal courts’ interpretation of federal rules that mirror Arizona rules.” Haroutunian v. Valueoptions, Inc., 218 Ariz. 541, 548 n. 8, ¶ 18, 189 P.3d 1114, 1121 n. 8 (App. 2008). We give great weight to the interpretation of federal rules. See Varela v. Roman, 156 Ariz. 476, 477, 753 P.2d 166, 167 (App.1987) (giving deference to the interpretation of the Federal Rules of Civil Procedure in a ease of first impression because Arizona has substantially adopted the federal rules).

¶ 8 Rule 106 contains identical language to Federal Rule of Evidence 106. Federal Rule 106 partially codified the common law rule of completeness, which was designed to prevent prejudice to parties. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988). Under the rule of completeness, “[t]he opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance.” Id. at 171, 109 S.Ct. 439. Arizona also recognizes the rule of completeness. See State v. Prasertphong, 210 Ariz. 496, 499, ¶ 15, 114 P.3d 828, 831 (2005) (noting the rule requires only admission of portions of a statement “necessary to qualify, explain or place into context the portion already introduced”) (internal citations omitted); see also State v. Cruz, 218 Ariz. 149, 162, ¶ 58,181 P.3d 196, 209 (2008).

¶ 9 While interpreting Federal Rule 106, the federal courts have applied the rule to recordings of “conduct” and held:

[I]f selected segments of a video or audio exhibit will be offered at trial ... the entire video or audio exhibit had best be preserved, so that opposing counsel and/or the opposing party(s) may review the evidence and determine if ‘any other party or any other writing or recorded statement ... ought in fairness ... be considered contemporaneously with’ the proffered segments ... Simply put, the government cannot make use of video segments that have been ‘cherry picked’ when the remainder of the recording has been erased or recorded-over[.]

U.S. v. Yevakpor, 419 F.Supp.2d 242, 252 (N.D.N.Y.2006). We find this analysis persuasive. In Yevakpor, the defendant was charged with attempted importation of a controlled substance and possession with intent to distribute a controlled substance. Id. at 243. The defendant filed a motion in limine challenging the government’s use of three one-minute video segments recorded at the Customs Area Security Center depicting a border stop and search when the videos only represented “a small clip of the entire time the defendant was recorded.” Id. at 243-44. The video segments did not show the results of the search or anything that occurred before the stop and the remainder of the recording was either erased or recorded over. Id. at 245.

¶ 10 The court granted the motion, noting, “[V]ideo recordings provide a more complete picture of events, a continuous stream of information, with less scenes being taken out of context. That benefit is curtailed in this case due to ... failure to preserve the entire video.” Id. at 246. Therefore we hold that a video is a statement for purposes of Rule 106.

II. Complete Video Is Necessary to Put Events Into Context

¶ 11 The State argues, “Any video depiction of events surrounding the [thirty-one] second clip is not necessary to put [] Moran’s physical attack on [L.U.] depicted in the video clip into context.” We disagree. Like the video segments in Yevakpor, the video in this case was edited to delete the first four and one half minutes and does not show the events leading up to the stabbing.

¶ 12 Unlike in Yevakpor, where the State edited the recording, in this case, the State had no part in deleting the first four and one half minutes of the recording. Nevertheless, the edited video will not give the jury a complete understanding of what occurred prior to the stabbing. The edited-out portion of the video is especially relevant to Moran’s defense because she argues the murder was not premeditated and she was provoked. Also, the deleted portion of the video is “necessary to qualify, explain or place into context the portion already introduced.” See Prasertphong, 210 Ariz. at 499, ¶ 15, 114 P.3d at 831. Because the first four and one-half minutes of the video cannot be shown, the fairness element of Rule 106 cannot be satisfied.

¶ 13 Furthermore, under Rule 403, a “court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice.” If the edited video is admitted, Moran will suffer prejudice. If there were no witnesses claiming that in the minutes leading up to the stabbing, there was both a verbal and physical altercation between Moran and L.U., Moran might not be able to show prejudice. But in this ease, where such witnesses exist, Moran has shown prejudice under Rule 403.

¶ 14 The United States Supreme Court has recognized that appellate courts afford trial courts broad discretion in their evidentiary rulings because trial courts have “familiarly with the detail of the case” and “greater experience in evidentiary matters.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008). “This is particularly true with respect to Rule 403 since it requires an on-the-spot balancing of probative value and prejudice, potentially to exclude as unduly prejudicial some evidence that already has been found to be factually relevant.” Id. (internal punctuation omitted). Therefore, pursuant to Rules 403 and 106, the trial court did not abuse its discretion by excluding it.

¶ 15 The dissent lists a parade of horribles that may come about, should the video in this case not be admitted. In each of those examples, the defendant will have to show prejudice, as Moran has done here. Without the showing of prejudice, the parade that the dissent complains of will never be realized.

¶ 16 The trial court did not abuse its discretion by granting Moran’s motion to exclude the edited video because the entire video no longer exists. Moreover, we find that the State’s case is not undermined by the exclusion because the video is not the sole evidence. The State may call Ponce to testify about his recollection of the events.¹

CONCLUSION

¶ 17 For the foregoing reasons, we exercise our discretion to accept special action jurisdiction but deny relief.

1 . Because we find the video’s exclusion was proper under Rule 106 and Rule 403, we need not address the State’s other arguments.