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In a split decision, the Arizona Court of Appeals – Division Two has voided Tito Rene Scott’s confession and overturned his murder conviction based on a detective’s untruthful statements to a judge about the evidence against Scott.
And in doing so on Thursday, the court revealed a deep split between the top judges of Arizona’s two appellate court divisions.
The key issue that was before the court of appeals was not whether Scott fired a gun at Anthony Corral outside a gas station on East Benson Highway in August 2019. Scott eventually confessed to a Pima County Sheriff’s detective that he did so, although he claimed self-defense.
Instead, the issue was what the appropriate legal response should be to the detective’s actions in making false statements in a sworn affidavit during the investigation. That response, according to the June 1 opinion, is to deem Scott’s confession to the detective inadmissible as evidence.
The opinion was authored by Presiding Judge Peter Eckerstrom and concurred with by Chief Judge Garye Vasquez, both of the appellate court’s Division Two in Tucson. The third judge on the panel, Judge Kent Cattani, wrote a dissent.
Cattani is the chief judge of the Arizona Court of Appeals – Division One based in Phoenix. He was serving on the panel due to staffing issues at Division Two.
The differing positions among the two chief judges on the issue makes it likely that the Arizona Supreme Court will be asked to weigh in on Scott’s case.
As Arizona Daily Independent https://arizonadailyindependent.com/2021/05/19/sentencing-set-for-deadly-2019-tucson-gunfight/ previously reported, Corral died days after the shooting. A PCSD detective later obtained a search warrant from a local judge authorizing the collection of Scott’s DNA to compare to crime scene evidence.
The judge issued the search warrant, not knowing the detective’s affidavit contained what the Arizona Attorney General’s Office eventually conceded was a “reckless disregard” for the truth.
Scott was indicted by Pima County grand jury for first degree murder after his DNA was matched to shell casings found at the scene. He was arrested but continued to deny involvement in Corral’s death until confronted with the DNA results.
At trial, Judge James Marner of the Pima County Superior Court ruled the DNA results were inadmissible based on a legal doctrine commonly known as the fruit of a poisonous tree, with the unlawfully obtained search warrant as the tree and the DNA results being the fruit.
But the jury was allowed to hear Scott’s confession. They returned a conviction of second-degree murder, aggravated assault with a deadly weapon, and discharging a firearm at an occupied structure.
On appeal, Scott’s attorneys contended there was a second fruit that should have been kept from the jury – the confession.
The question of what to do with the confession split the appellate panel. Eckerstrom and Vasquez focused on concerns that admitting a confession directly tied to unlawfully obtained evidence would provide no deterrent to officers who might otherwise consider violating a suspect’s constitutional rights.
In the opinion, Eckerstrom noted the U.S. Supreme Court has long held that the government is barred from using “evidence seized during an unlawful search” as “proof against the victim of the search.” To deter such conduct, the Court requires exclusion of evidence obtained by such illegality of arrest or search.
“If we are to take seriously the Supreme Court’s direction that the exclusionary rule prohibits ‘exploitation of the illegality’ of a search…then the facts of this case compel suppression not only of the DNA evidence itself, but also of Scott’s inculpatory statements, acquired through the unattenuated use of that illegally acquired evidence,” the opinion notes.
To do otherwise, Eckerstrom wrote, meant the detective “was rewarded” despite the conduct which led to the DNA test results.
Cattani’s dissent agreed there was a constitutional violation in Scott’s case and that Marner ws correct to suppress the DNA evidence. But he was “unpersuaded that the detective’s actions constitute flagrant misconduct designed to induce a case-resolving confession,” Cattani added.
As a result, Cattani believed “nothing further was required to remedy the constitutional violation or to further deter future misconduct.”
Cattani also noted the U.S. Supreme Court already allows police officers to lie to a suspect about non-existent evidence or even confront a suspect with statements from a non-existent witness. If the detective had simply lied to Scott about a DNA match, then it is possible any confession obtained that way would have been admissible.
The majority opinion overturned Scott’s conviction and sentence, with the case remanded back to Marner for further proceedings. That remand is on hold for 30 days to give the State time to petition for review by the Arizona Supreme Court.
If a petition is filed, it could mean one or two years before a final decision is made on the admissibility of the confession. Until then, Scott will remain at the Arizona Department of Corrections where he is serving a 14-year sentence.
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