SUPREME COURT OF ARIZONA

En Banc

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-10-0242-PR 

 Appellee, ) 

 ) Court of Appeals 

 v. ) Division Two 

 ) No. 2 CA-CR 08-0205 

LOUIE THOMAS MACHADO, ) 

 ) Pima County 

 Appellant. ) Superior Court 

 ) No. CR20063933 

 )

 )

 ) O P I N I O N

__________________________________)

Appeal from the Superior Court in Pima County 

The Honorable Frank Dawley, Judge Pro Tempore

REVERSED AND REMANDED

________________________________________________________________

Opinion of the Court of Appeals, Division Two

224 Ariz. 343, 230 P.3d 1158 (App. 2010)

AFFIRMED

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THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix

 By Kent E. Cattani, Chief Counsel, 

 Criminal Appeals/Capital Litigation Section

 David A. Sullivan, Assistant Attorney General Tucson

Attorneys for State of Arizona

ROBERT J. HIRSH, PIMA COUNTY PUBLIC DEFENDER Tucson

 By M. Edith Cunningham, Assistant Public Defender

 David J. Euchner, Assistant Public Defender 

 Lisa M. Hise, Assistant Public Defender

Attorneys for Louie Thomas Machado

________________________________________________________________

H U R W I T Z, Vice Chief Justice
2

¶1 This case requires us to apply the Arizona Rules of 

Evidence to “third-party culpability” evidence – evidence 

offered by a defendant to show that someone else committed the 

crime. We conclude that the evidence at issue should have been 

admitted. 

I. 

¶2 On October 25, 2000, sixteen-year-old Rebecca R. drove 

home alone from a church party. After Rebecca pulled into the 

driveway of her mother’s house, a neighbor heard her arguing 

with a male, stating that she did not want to go with him. A 

shot rang out and Rebecca died shortly thereafter from a gunshot 

wound. 

¶3 Investigators initially focused on Jonathan H. as a 

suspect. Jonathan was a classmate of Rebecca’s and the 

boyfriend of her best friend, Laura. He had threatened to kill 

Rebecca and Laura two weeks earlier for attempting to resolve a 

dispute between him and Laura’s ex-boyfriend. 

¶4 Almost a month after the shooting, Rebecca’s family 

received a telephone call. The caller did not identify himself, 

but said he knew the family through Rebecca. He related details 

of the shooting that were not publicly known and said he had 

accidentally killed Rebecca because he was mad at her and she 

would not do what he wanted. The family members who heard the 

call said that the caller sounded like a “cold, cocky, and well-
3

spoken” young white male. Relying on this call, police obtained 

a warrant for a sample of Jonathan’s voice. The police, 

however, lost the sample before it could be played for the 

family. Jonathan was never arrested or charged. 

¶5 Several years later, the police investigation focused 

on a new suspect, Louie Thomas Machado. Machado’s mother told 

police that he had confessed to the murder and had mentioned 

corroborating details. Machado originally claimed that he had 

been with Rebecca when she was shot, but later retracted this 

statement. After Machado’s photograph appeared on television, a 

neighbor of Rebecca’s family told police he had seen Machado 

walking down the street immediately after the murder. 

¶6 Machado was charged with Rebecca’s murder. At trial, 

he contended that his mother had fabricated the confession, and 

she testified to that effect. Machado’s principal defense was 

that Jonathan had committed the murder, and Machado proffered 

evidence in support of that defense. 

¶7 The superior court admitted evidence of Jonathan’s 

death threat to Rebecca and Laura, his inconsistent accounts of 

his whereabouts on the night of the murder, and a restraining 

order that a former girlfriend had obtained against Jonathan. 

The court, however, excluded testimony about other acts that 

Jonathan had committed, including the kidnapping of two girls at 

gunpoint; a road rage incident in which Jonathan pointed a gun 
4

at others; and an assault conviction that resulted after 

Jonathan pointed a gun at a former girlfriend, threatened to 

kill her, and told her that he had killed before. The trial 

court also excluded evidence of the anonymous phone call and the 

subsequent police investigation. Machado was convicted of 

second-degree murder. 

¶8 The court of appeals reversed. State v. Machado, 224 

Ariz. 343, 365 ¶ 68, 230 P.3d 1158, 1180 (App. 2010). The court 

concluded that evidence about three incidents involving 

misconduct by Jonathan – the kidnapping, the road rage incident, 

and the assault – had been improperly excluded. Id. at 354-55 

¶¶ 25-27, 230 P.3d at 1169-70. It also held that evidence of 

the anonymous telephone call was admissible as a declaration 

against penal interest under Arizona Rule of Evidence 804(b)(3). 

Id. at 359 ¶ 44, 230 P.3d at 1174. 

¶9 We granted review because the admissibility of thirdparty culpability evidence is a recurrent issue of statewide 

importance. We have jurisdiction pursuant to Article 6, Section 

5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003).

II. 

¶10 Arizona Rule of Evidence 404(b) provides that, subject 

to an exception not applicable here, “evidence of other crimes, 

wrongs, or acts is not admissible to prove the character of a 

person in order to show action in conformity therewith.” The 
5

State argues that the superior court appropriately excluded 

evidence of the kidnapping, the road rage incident, and the 

assault under Rule 404(b). Machado, on the other hand, contends 

that Rule 404(b) does not apply to third-party culpability 

evidence. 

¶11 Our prior cases give less than definitive guidance on 

this issue. In State v. Tankersley, this Court stated that Rule 

404(b), which typically is implicated by the state’s attempt to 

introduce other-acts evidence against a defendant, also “applies 

to other acts of third persons” offered by a defendant to show 

that someone else committed the crime charged. 191 Ariz. 359, 

369 ¶ 39, 956 P.2d 486, 496 (1998). But in State v. Gibson, 

without mentioning Rule 404(b) or Tankersley, we held that 

“Rules 401, 402, and 403, Arizona Rules of Evidence, set forth 

the proper test for determining the admissibility of third-party 

culpability evidence.” 202 Ariz. 321, 324 ¶ 19, 44 P.3d 1001, 

1004 (2002). Shortly thereafter, citing Gibson and again not 

mentioning Rule 404(b), we stated that third-party culpability 

evidence “must simply be relevant and then subjected to the 

normal [Rule] 403 weighing analysis between relevance, on the 

one hand, and prejudice or confusion on the other.” State v. 

Prion, 203 Ariz. 157, 161 ¶ 22, 52 P.3d 189, 193 (2002). 

¶12 The court of appeals thus understandably characterized 

the law about admission of third-party culpability evidence as 
6

“unsettled.” Machado, 224 Ariz. at 356 ¶ 32, 230 P.3d at 1171. 

The court surmised that Gibson and Prion had implicitly 

overruled Tankersley “to the extent it holds such evidence may 

be precluded based on application of Rule 404(b).” See id. at 

¶ 31. But see State v Fish, 222 Ariz. 109, 123 ¶ 42, 213 P.3d 

258, 272 (App. 2009) (citing Tankersley and concluding that Rule 

404(b) “applies to prior acts of . . . third parties”). 

Assessing the three incidents under Rules 401 through 403, the 

court of appeals concluded that the trial court erred in 

excluding this evidence. Machado, 224 Ariz. at 354-55 ¶¶ 25-27, 

230 P.3d at 1169-70.1

¶13 The applicability of Rule 404(b) to third-party 

culpability evidence has divided the federal courts. Some 

federal courts of appeals hold that Federal Rule of Evidence 

404(b) (upon which Arizona’s rule was modeled) does not apply to 

such evidence. See Wynne v. Renico, 606 F.3d 867, 872-73, 873 

n.3 (6th Cir. 2010) (Martin, J., concurring) (collecting cases). 

The Ninth Circuit, however, adheres to the opposite view, noting 

that the language of Rule 404(b) applies on its face to a 

“person,” not simply a defendant. United States v. McCourt, 925 

                                                           

1

 Even assuming that Rule 404(b) applied, the court of 

appeals concluded that the three incidents were admissible 

because they were offered to prove something other than the 

propensity of Jonathan to commit violent crimes. Machado, 224 

Ariz. at 357 ¶ 34, 230 P.3d at 1172. 
7

F.2d 1229, 1231 (9th Cir. 1991); see also Tankersley, 191 Ariz. 

at 369 ¶ 39, 956 P.2d at 496 (citing McCourt, 925 F.2d at 1231). 

¶14 In our view, the more convincing opinions have 

recognized that although the language of Rule 404(b) appears to 

apply universally, its central purpose is to protect criminal 

defendants from unfair use of propensity evidence. United 

States v. Lucas, 357 F.3d 599, 611-15 (6th Cir. 2004) (Rosen, 

J., concurring); United States v. Aboumoussallem, 726 F.2d 906, 

911-12 (2d Cir. 1984). Rule 404(b) has its source in the common 

law, and the common law rule restricting the use of other-acts 

evidence was designed to prevent the defendant from being 

convicted simply because the jury might conclude from the other 

act that he was a “bad man.” Lucas, 357 F.3d at 611 (Rosen, J., 

concurring). 

¶15 We recognized as much in State v. Terrazas, which held 

that other acts offered under Rule 404(b) against a criminal 

defendant must be proved by clear and convincing evidence. 189 

Ariz. 580, 584, 944 P.2d 1194, 1198 (1997). Although Rule 

404(b) does not expressly address the issue, we found the 

heightened burden of proof appropriate, because, despite 

cautionary instructions, “the introduction of a defendant’s 

prior bad acts can easily tip the balance against the 

defendant.” Id. (internal quotation marks omitted). The due 

process concerns cited in Terrazas do not militate for a higher 
8

burden of proof when other-acts evidence is offered to exonerate 

a defendant. Indeed, if Rule 404(b) were interpreted to exclude 

highly probative evidence that someone other than the defendant 

committed the crime, other due process concerns might be 

implicated. Cf. Chambers v. Mississippi, 410 U.S. 284, 302-03 

(1973) (holding that exclusion of third-party culpability 

evidence bearing “persuasive assurances of trustworthiness” 

violated the Due Process Clause). 

¶16 We therefore make explicit today what the court of 

appeals found implicit in Gibson and Prion. The admission of 

third-party culpability evidence is governed by the standards of 

Rules 401 through 403 of the Arizona Rules of Evidence, not by 

Rule 404(b).2

 Ordinarily, we would next determine if the 

evidence here was properly excluded under those Rules. At oral 

                                                           

2

 As the court of appeals noted, a defendant may not, in the 

guise of a third-party culpability defense, simply “throw 

strands of speculation on the wall and see if any of them will 

stick.” Machado, 224 Ariz. at 357 ¶ 33 n.11, 230 P.3d at 1172 

n.11 (quoting David McCord, “But Perry Mason Made It Look So 

Easy!”: The Admissibility of Evidence Offered by a Criminal 

Defendant to Suggest that Someone Else is Guilty, 63 Tenn. L. 

Rev. 917, 984 (1996)) (internal quotation mark omitted). 

Evidence offered to establish the culpability of a third party 

is relevant under Rule 401 only when it “tend[s] to create a 

reasonable doubt as to the defendant’s guilt.” Gibson, 202 

Ariz. at 324 ¶ 16, 44 P.3d at 1004 (emphasis omitted). And, as 

is the case with all relevant evidence, the trial court has 

discretion to exclude third-party culpability evidence “if its 

probative value is substantially outweighed by the danger of 

unfair prejudice, confusion of the issues, or misleading the 

jury, or by considerations of undue delay, waste of time, or 

needless presentation of cumulative evidence.” Ariz. R. Evid. 

403. 
9

argument, however, the State conceded that if Rule 404(b) does 

not apply, then the court of appeals correctly concluded that 

the probative value of the three excluded incidents was not 

substantially outweighed by the danger of unfair prejudice or 

confusion. We therefore affirm the opinion below insofar as it 

concludes that exclusion of this evidence was reversible error. 

III. 

¶17 The superior court excluded the anonymous telephone 

call both as inadmissible hearsay and because it found any 

probative value substantially outweighed by the danger of unfair 

prejudice and confusion. The court of appeals rejected each of 

these holdings. 

A. 

¶18 Because the statements in the telephone call were 

offered to prove that the caller, not Machado, killed Rebecca, 

they were plainly hearsay. See Ariz. R. Evid. 801(c) (defining 

hearsay as “a statement, other than one made by the declarant 

while testifying at the trial or hearing, offered in evidence to 

prove the truth of the matter asserted”). The court of appeals, 

however, found that the call fell within the exception to the 

hearsay rule in Rule 804(b)(3) for statements against interest. 

Machado, 224 Ariz. at 359 ¶ 44, 230 P.3d at 1174. That Rule 

allows admission of a statement of an unavailable declarant that 

“so far tended to subject the declarant to civil or criminal 
10

liability . . . that a reasonable person in the declarant’s 

position would not have made the statement unless believing it 

to be true.” Ariz. R. Evid. 804(b)(3). If the statement tends 

to expose the declarant to criminal liability and is offered to 

exculpate the accused, its proponent must also show that 

“corroborating circumstances clearly indicate the 

trustworthiness of the statement.” Id.

¶19 An anonymous statement would not typically qualify as 

a statement against penal interest under Rule 804(b)(3). By 

concealing his identity, the declarant seeks to protect himself 

from the consequences of admitting to a crime. Such a statement 

ordinarily would not tend to expose the declarant to criminal 

liability, as Rule 804(b)(3) requires. See State v. Tucker, 414 

S.E.2d 548, 555 (N.C. 1992) (noting that “a declarant who 

conceals his identity does not tend to expose himself to 

criminal liability”). Most courts have accordingly found Rule 

804(b)(3) inapplicable to anonymous statements. See Clark v. 

Optical Coating Lab., Inc., 80 Cal. Rptr. 3d 812, 833-34 (Cal. 

Ct. App. 2008) (collecting cases); State v. Kiser, 284 S.W.3d 

227, 265 (Tenn. 2009) (same). 

¶20 However, both in its supplemental brief and at oral 

argument, the State conceded that the anonymous telephone call 

in this case was a statement against penal interest by the 

declarant. Presumably, the State did so because it obtained a 
11

warrant for Jonathan’s voice sample on the basis of the call, 

making it somewhat difficult to argue that the call did not tend 

to expose the declarant to criminal liability. Cf. Bevers v. 

State, 811 S.W.2d 657, 662-63 (Tex. Crim. App. 1991) (admitting 

anonymous calls when identity of caller could be readily 

determined). 

¶21 The State has also understandably conceded the 

unavailability of the declarant. Thus the only contested issue 

is whether “corroborating circumstances clearly indicate the 

trustworthiness of the statement.” Ariz. R. Evid. 804(b)(3). 

In addressing this issue, we “must examine any evidence that 

corroborates or contradicts the statement to find whether a 

reasonable person could conclude that the statement is true.” 

See State v. Harrod, 200 Ariz. 309, 313 ¶ 16, 26 P.3d 492, 496 

(2001), vacated on other grounds, 536 U.S. 953 (2002). 

¶22 We conclude, as did the court of appeals, that the 

evidence in this case corroborates the statement. The caller 

stated that before the shooting, he waited by a white minivan 

parked near a neighbor’s house. At the time of the crime, a 

white minivan was in fact parked nearby. The caller also stated 

that he saw Rebecca come home in a white Ford Escort. This 

detail was also correct, and the Escort had only recently been 

purchased. Neither of the facts described by the caller had 

been reported in the media. 
12

¶23 Moreover, the primary goal of the corroboration 

requirement in Rule 804(b)(3) is to prevent criminal suspects 

from fabricating hearsay admissions to the crime by others. See

Fed. R. Evid. 804(b)(3) Advisory Committee Note (“The 

requirement of corroboration should be construed in such a 

manner as to effectuate its purpose of circumventing 

fabrication.”). Because Machado was not a suspect when the 

anonymous call was made, it seems unlikely that he was involved 

in any such fabrication, and nothing in the record suggests 

otherwise. 

B. 

¶24 Even if a statement falls under an exception to the 

hearsay rules, it also must be evaluated under the relevancy 

test of Rule 401 and the weighing analysis of Rule 403. The 

court of appeals concluded that “evidence about the telephone 

call had obvious, substantial probative value,” Machado, 224 

Ariz. at 358 ¶ 39, 230 P.3d at 1173, and the trial court 

acknowledged that the call might even be “super relevant,” id.

at ¶ 39 n.13. We agree. The caller admitted committing the 

crime, and there were powerful indications that Machado was not 

the caller. The caller referred to remarks made at Rebecca’s 

funeral, which Machado did not attend. Rebecca’s family members 

described the caller as a “well-spoken” young white male. 

Jonathan was Caucasian and well-spoken, while Machado was 
13

Hispanic, had an accent, and used poor grammar. The call thus 

“tend[s] to create a reasonable doubt as to the defendant’s 

guilt.” Gibson, 202 Ariz. at 324 ¶ 16, 44 P.3d at 1004 

(emphasis omitted). 

¶25 The court of appeals also correctly concluded that the 

probative value of the telephone call was not substantially 

outweighed by the risk of confusion or unfair prejudice. 

Machado, 224 Ariz. at 358 ¶ 39, 230 P.3d at 1173. As the court 

noted, the only issue in this case is whether Machado or someone 

else committed the murder. The telephone call went directly to 

that issue and did not have the potential of distracting the 

jury from the central issues in the case. See Machado, 224 

Ariz. at 358 ¶ 39 n.14, 230 P.3d at 1173 n.14. The court of 

appeals thus appropriately held that evidence of the telephone 

call should have been admitted. 

IV. 

¶26 For the reasons above, we reverse Machado’s 

conviction, affirm the opinion of the court of appeals, and 

remand to the superior court for further proceedings consistent 

with this opinion. 

 _____________________________________

 Andrew D. Hurwitz, Vice Chief Justice
14

CONCURRING:

_____________________________________

Rebecca White Berch, Chief Justice

_____________________________________

W. Scott Bales, Justice

_____________________________________

A. John Pelander, Justice

_____________________________________

Michael D. Ryan, Justice (Retired)