IN THE SUPREME COURT OF ARIZONA

En Banc

STATE OF ARIZONA, ) Supreme Court

) No. CR 01-0045-PR

Appellee, )

) Court of Appeals

) No. 1 CA-CR 99-0837

v. )

) Maricopa County

LARRY LAVELLE GIBSON, ) Superior Court

) No. CR 96-07148

Appellant. )

) OPINION

______________________________)

Appeal from the Superior Court of Maricopa County

The Honorable Gregory H. Martin, Judge

REMANDED FOR NEW TRIAL

_________________________________________________________________

Court of Appeals, Division One

Memorandum Decision

REVERSED

_________________________________________________________________

JANET NAPOLITANO, Attorney General Phoenix

by Ginger Jarvis, Assistant Attorney General,

Criminal Appeals Section

Attorneys for Appellee

MARICOPA COUNTY PUBLIC DEFENDER Phoenix

by Charles R. Krull, Deputy Public Defender

Attorneys for Appellant

_________________________________________________________________
2

C O R C O R A N, Justice (Retired)

1. Introduction

¶1 In 1995, Larry Lavelle Gibson (defendant) was charged

with first degree murder for a 1974 murder. Prior to trial,

defendant gave notice of his intent to introduce evidence that

other persons had committed the crime. See Rule 15.2(b), Arizona

Rules of Criminal Procedure. At a pretrial hearing, the trial

court granted the state’s motion precluding evidence that someone

else might have committed the murder. After a 7-day trial, a jury

convicted defendant of first degree murder. Defendant was

sentenced to life imprisonment. On direct appeal, defendant

contended that the trial court erred in precluding evidence of

third-party culpability. In a split decision, the court of appeals

affirmed. We granted review to clarify the appropriate test for

admission of third party culpability evidence. We have

jurisdiction pursuant to Arizona Constitution, article 6, § 5(3),

and A.R.S. § 13-4031.

2. Factual and Procedural History

(a) 1974 Investigation

¶2 On January 15, 1974, two Phoenix police officers arrived

at 17 East Thomas Road and found the body of Taylor Courtney inside

apartment 13. The cause of death was three gunshot wounds to the

head. Officials estimated the death had occurred six days earlier.
3

The body had been brutalized by the post mortem removal of his

penis, scrotum, and testes. Further investigation uncovered

numerous fingerprints, some bloody, in and around the apartment and

inside the victim’s car.

¶3 During the investigation, two individuals, D.B. and J.W.,

were identified as primary suspects. Both told officers they had

been with the victim shortly before the murder. Both gave alibis

that could not be corroborated. Both knew substantial information

about the crime scene which had not previously been made public.

D.B. pointed to J.W. as the possible perpetrator because of an

alleged sexual relationship between the victim and J.W.’s wife.

J.W. suffered severe mental health problems shortly after the

murder, and police officers noted D.B. was acting extremely nervous

during an interview.

¶4 The victim, D.B., and J.W. were all from the same small

Arizona town. Defendant was also from that same town. However,

during the 1974 investigation, officers did not interview, nor

suspect defendant, or know of his existence.

(b) 1995 Investigation

¶5 The case lay dormant until 1995 when officers, with the

help of the Automated Fingerprint Identification System (AFIS),

matched one of the non-bloody fingerprints lifted from the inside

of the front screen door of the victim’s apartment with that of
4

defendant. Defendant was interviewed and denied going to the

victim’s apartment and killing the victim.

¶6 From April to June 1996, Defendant’s ex-wife was

interviewed by police officers on several occasions. She told

officers about a package defendant had given her two months after

the murder. Over the course of the interviews, her recollection of

the contents of this package evolved from liver to a poultry neck

to a penis. Defendant was then charged with the murder.

¶7 At a pretrial hearing, defendant argued that in light of

the limited circumstantial evidence against defendant, the court

should allow evidence of D.B.’s and J.W.’s potential involvements,

specifically: (1) the times at which D.B. and J.W. last saw the

victim, (2) the false alibis, (3) their overwhelming knowledge

about the crime scene which had not yet been made public, (4) the

extreme nervousness of D.B., and (5) J.W.’s mental health issues

after the murder. The trial court precluded all inculpatory

evidence about D.B. and J.W. In his ruling, the trial judge

stated, “there is nothing in the defendant’s proffer that has an

inherent tendency to connect either D.B. or J.W. with the actual

commission of the murder of the victim. Admitting the evidence

. . . has the real potential to unfairly prejudice the State and to

confuse the jury.”

¶8 At trial defendant was convicted, and on appeal he argued

that preclusion of evidence pointing to D.B. and J.W. was
5

inappropriate. The court of appeals held there was no abuse of

discretion because the evidence did not have an inherent tendency

to connect either D.B. or J.W. with the murder.

3. Discussion

¶9 The court of appeals used an “inherent tendency” test,

which it apparently took from our decision in State v. Fulminante,

161 Ariz. 237, 778 P.2d 602 (1988). In Fulminante we stated,

Before a defendant may introduce evidence that another

person may have committed the crime, the defendant must

show that the evidence has an inherent tendency to

connect such other person with the actual commission of

the crime. Vague grounds of suspicion are not

sufficient.

161 Ariz. 237, 252, 778 P.2d 602, 617 (quoting State v. Williams,

133 Ariz. 220, 231, 650 P.2d 1202, 1213 (1982)).

¶10 We do not find, and this court did not intend, a special

standard or test of admissibility to be gleaned from Fulminante.

¶11 In Fulminante the defendant was charged with the murder

of his 11-year-old stepdaughter. The defendant attempted to

introduce evidence that a neighbor of the victim drove a

motorcycle, owned a .357 magnum handgun, previously attempted to

kill a police officer, and was suspected of committing crimes

against children. The trial court precluded the evidence, and the

defendant was found guilty and sentenced to death. On the issue of

third-party culpability evidence, we stated that the evidence of

the neighbor’s ability to commit the crime was insufficient by
6

itself to connect the neighbor with the murder and therefore found

there was no abuse of discretion. See Fulminante, 161 Ariz. at

252, 778 P.2d at 617.

¶12 The appeal before us presents the opportunity to clarify

the manner of determining admissibility of evidence of third-party

culpability. The appropriate analysis is found in Rules 401, 402,

and 403, Arizona Rules of Evidence.

¶13 Initially, the court must determine if the proffered

evidence is relevant. “Relevant evidence means evidence having any

tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable

than it would be without the evidence.” Rule 401. “All relevant

evidence is admissible.... Evidence which is not relevant is

not admissible.” Rule 402. Once the evidence is determined

relevant, it is admissible unless “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.” Rule 403.

¶14 We note that Fulminante did not make reference to Rules

401, 402, or 403.

(a) Rules 401 and 402

¶15 We find the discussion in Winfield v. United States, 676
7

A.2d 1 (D.C. 1996), particularly helpful in analyzing relevancy of

third-party culpability evidence in a criminal context. In

Winfield, the court addressed similar concerns regarding a “clear

link” standard of third-party culpability evidence. That court

rejected the “clear link” standard because it put the focus on the

third party’s guilt or innocence. See 676 A.2d at 4. The court

then concluded that the proper focus should be on “the effect the

evidence has upon the defendant’s culpability” and the evidence

“need only tend to create a reasonable doubt that the defendant

committed the offense.” 676 A.2d at 4 (quoting in part Johnson v.

United States, 552 A.2d 513, 516 (D.C. 1989)).

¶16 Similarly, we find the use of the phrase “inherent

tendency” unhelpful and agree with Judge Gerber’s description of

inherent tendency in his dissent:

This language is unclear to a fault: for one thing, a

“tendency” does not “inhere”; for another, such tendency

seems a matter of weight and credibility of evidence.

Whatever its meaning, this rule forces a defendant to

prove to a judge’s satisfaction that another person

“really” committed the crime or was “largely” connected

to it.

The proper focus in determining relevancy is the effect the

evidence has upon the defendant’s culpability. To be relevant, the

evidence need only tend to create a reasonable doubt as to the

defendant’s guilt.

(b) Rule 403
8

¶17 When applying the balancing test under Rule 403, ARIZONA

PRACTICE: LAW OF EVIDENCE should be considered:

[I]t is first necessary to assess the probative value of

the evidence on the issue for which it is offered. The

greater the probative value, of course, and the more

significant in the case the issue to which it is

addressed, the less probable that factors of prejudice or

confusion can substantially outweigh the value of the

evidence. If the issue is not in dispute, or if other

evidence is available of equal probative value but

without the attendant risks of the offered evidence, then

a greater probability of substantial outweighing exists.

Because this is a weighing of factors that cannot easily

be quantified, substantial discretion is accorded the

trial judge....

The remaining factors in Rule 403, confusion of the

issues, misleading the jury, and wasting of time, are

less frequently the subject of judicial decision.

Wigmore described them well:

The notion here is that, in attempting to

dispute or explain away the evidence thus

offered, new issues will arise as to the

occurrence of the instances and the similarity

of conditions, new witnesses will be needed

whose cross-examination and impeachment may

lead to further issues; and that thus the

trial will be unduly prolonged, and the

multiplicity of minor issues will be such that

the jury will lose sight of the main issue,

and the whole evidence will be only a mass of

confused data from which it will be difficult

to extract the kernel of controversy.

1 Joseph M. Livermore, Robert Bartels, & Anne Holt Hameroff, ARIZONA

PRACTICE: LAW OF EVIDENCE (formerly UDALL ON EVIDENCE) § 403 at 82-83,

84-86 (4th ed. 2000) (footnotes omitted) (quoting 2 WIGMORE ON EVIDENCE

§ 443 at 528-529 (Chadbourn rev. 1979)); see also 1 MCCORMICK ON

EVIDENCE § 185 at 779-785 (4th Kenneth S. Broun ed. 1992).
9

¶18 The New York Court of Appeals recently dealt with an

issue similar to that in Fulminante. People v. Primo, like

Winfield, dealt with a coordinate catch phrase: “clear link.”

Primo said:

To the extent that the “clear link” standard implies no

more than an abbreviation for the conventional balancing

test, it presents no problem. A review of clear link

cases reveals that the courts would very likely have made

the same ruling regardless of the nomenclature. “Clear

link” and similar coinages, however, may be easily

misread as suggesting that evidence of third-party

culpability occupies a special or exotic category of

proof.

753 N.E.2d 164, 168, 728 N.Y.S.2d 735, 739 (2001).

4. Conclusion

¶19 We hold that Rules 401, 402, and 403, Arizona Rules of

Evidence, set forth the proper test for determining the

admissibility of third-party culpability evidence. This test must

be applied anew to the facts in each case.

¶20 The judgment of the court of appeals is therefore

reversed. The case is remanded for a new trial not inconsistent

with this opinion.

_________________________________________

Robert J. Corcoran, Justice (Retired)
10

CONCURRING:

____________________________________

Charles E. Jones, Chief Justice

____________________________________

Ruth V. McGregor, Vice Chief Justice

____________________________________

Stanley G. Feldman, Justice

____________________________________

Thomas A. Zlaket, Justice

NOTE: Due to a vacancy on this court and pursuant to

Ariz. Const. art VI, § 3, the Honorable Robert J.

Corcoran, Justice (Retired) was designated to sit with

the court in the disposition of this matter.