State v. Alston, No. 1 CA-CR 23-0511 (App. Div. I, October 20, 2025) (J. Brown) https://coa1.azcourts.gov/Portals/0/OpinionFiles/Div1/2026/Alston%20-%201%20CA-CR%2023-0511%20-%20Opinion.pdf

UNDER ARIZ.R. EVID. 801(d)(1)(B) PRIOR CONSISTENT HEARSAY STATEMENTS ARE ADMISSIBLE TO REBUT CLAIMED FABRICATION OR TO REHABILITATE CREDIBILITY

The defendant was convicted of first-degree murder in a drive-by shooting. He was observed by security guards in the parking lot of a strip mall where a party was taking place wearing a pink “beanie” or ski mask. One of the security guards overheard the defendant say he had a “banger” (firearm).  When the event ended and people were entering the parking lot, witnesses testified they saw him run to a red sedan in a nearby parking lot and drive by the venue.  Witnesses further testified the driver's window was observed to be down when shots were fired and  muzzle flashes were seen coming from the driver's window. A partygoer was struck and killed. Defendant claimed two statements made to police shortly after the incident by security guards were inadmissible hearsay.  The trial court disagreed, and the  Arizona Court of Appeals affirmed the conviction.

At trial one of the investigating officers testified that he interviewed one of the security guards and that guard told him “that he paid closer attention” to Alston because “he had made some mention of having a gun.”  This testimony was allowed over a hearsay objection based upon the hearsay exception for prior consistent statements. Ariz. Evid. Rule 801(d)(1)(B) on the basis the security guard's credibility had been attacked on cross-examination.

Generally, an out-of-court statement offered for the truth of

the matter asserted is hearsay and not admissible as evidence. Ariz. R. Evid.

801(c), 802.  But a declarant's prior statements that are consistent with that

declarant's testimony are not hearsay if the declarant testifies at trial, is

subject to cross-examination about the statements, and as pertinent here,

the statements are offered either (1) “to rebut an express or implied charge

that the declarant recently fabricated” the testimony, or (2) “to rehabilitate

the declarant's credibility as a witness when attacked on another ground.”

Contrary to the defendant's argument nothing in the rule precludes application of the prior consistent statement exception based upon how a party attacks a witness' credibility or how important the attack is to the party's case. Here the security guard's credibility was challenged regarding his memory of how many people were in the parking lot and whether the guard had seen other partygoers wearing pink beanies. This attack was adequate to invoke the consistent statement exception to the hearsay rule; it was not necessary that the attack on the guard's credibility be related to his statement about the gun.

While it was “unclear” whether the credibility of a second security guard was sufficiently attacked to invoke the exception, because the defendant did not object to its admissibility at trial only establishing fundamental error that caused him prejudice would support a reversal or new trial. Because the prior statement—the physical description of the shooter, that he heard the shooter say he had a “banger” and that person ran to the red sedan where the shots came from—was elicited from  the guard at trial as well as other witnesses at trial, there was no fundamental error.