State of Arizona v. Rafael Real ( 2007 )

FILED BY CLERK
JAN 31 2007
IN THE COURT OF APPEALS COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2006-0024
Appellee, ) DEPARTMENT A
)
v. ) OPINION
)
RAFAEL REAL, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20043794
Honorable Howard Hantman, Judge
AFFIRMED
Terry Goddard, Arizona Attorney General
By Randall M. Howe and Joseph T. Maziarz Phoenix
Attorneys for Appellee
Robert J. Hooker, Pima County Public Defender
By John F. Palumbo Tucson
Attorneys for Appellant
H O W A R D, Presiding Judge.
¶1 After a jury trial, appellant Rafael Real was convicted of four violations of
A.R.S. § 28-1383, aggravated driving under the influence of an intoxicant (DUI). The trial
court sentenced him to concurrent, presumptive terms of 2.5 years in prison for each
conviction. On appeal, Real argues the trial court violated his Sixth Amendment right to
confrontation. Finding no error, we affirm.
¶2 We view the evidence in the light most favorable to sustaining the convictions.
See State v. Newnom, 208 Ariz. 507, ¶ 2, 95 P.3d 950, 950 (App. 2004). In November
2003, Pima County Sheriff’s Deputy Martinez stopped a vehicle driven by Real for speeding.
Real admitted not having a valid driver’s license and exhibited symptoms of intoxication.
Deputy Phaneuf, who had responded to Martinez’s request for a DUI expert, administered
field sobriety tests, which Real had trouble performing. Phaneuf then arrested and
questioned Real, who made inculpatory statements. A blood test performed by a third
deputy, Copfer, showed Real’s alcohol concentration (AC) was .190 approximately one-half
hour after the stop.
¶3 Before trial, Real sought to preclude Phaneuf from testifying, in part on Sixth
Amendment grounds, because Phaneuf had no memory of investigating or arresting Real.
The trial court ruled Phaneuf could testify. At trial, Phaneuf testified that he had no
independent recollection of investigating and arresting Real and then read from his police
report in response to questioning.
2
¶4 Real argues the trial court violated the Sixth Amendment’s Confrontation
Clause, as interpreted in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), by
permitting Phaneuf to read from his police report at trial when Phaneuf testified he had no
memory of the events surrounding Real’s arrest.1 Although we review the trial court’s
decision to admit evidence for an abuse of discretion, see State v. Hampton, 213 Ariz. 167,
¶ 45, 140 P.3d 950, 961 (2006), we review its decision on the Confrontation Clause de
novo, see State v. Ruggiero, 211 Ariz. 262, ¶ 15, 120 P.3d 690, 693 (App. 2005).
¶5 The Sixth Amendment to the United States Constitution protects a defendant’s
“right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. In
Crawford, the Supreme Court held that the Confrontation Clause prohibits the use of
testimonial out-of-court statements if the declarant does not testify at trial, unless the
declarant is unavailable and the defendant had a prior opportunity to cross-examine the
declarant. 541 U.S. at 68, 124 S. Ct. at 1374. But the Court stated in dicta that, where the
declarant is subject to cross-examination at trial, “the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements.”2 Id. at 59 n.9, 124 S. Ct.
1
Real does not contest the admissibility of Phaneuf’s testimony under the recorded
recollection hearsay exception. See Ariz. R. Evid. 803(5), 17A A.R.S.; Goy v. Jones, 205
Ariz. 421, ¶¶ 10-12, 72 P.3d 351, 353-54 (App. 2003) (police officer may read from police
report at trial if foundational requirements for recorded recollection are satisfied).
2
The state does not contest Real’s assertion that Phaneuf’s statements were
“testimonial.” See Crawford, 541 U.S. at 68, 124 S. Ct. at 1374 (Confrontation Clause
protection applies to testimonial evidence).
3
at 1369 n.9; see also State v. Roque, 213 Ariz. 193, ¶ 115, 141 P.3d 368, 396-97 (2006)
(where “victims made their statements in court and stood subject to cross-examination, no
confrontation issues arose”).
¶6 That comment by the Supreme Court, although dicta, is consistent with its
prior decisions. In United States v. Owens, 484 U.S. 554, 108 S. Ct. 838 (1988), the Court
addressed the issue of whether a witness’s lack of memory regarding the basis of a prior
statement posed a Confrontation Clause problem when the witness testified at trial and was
subject to cross-examination. See id. at 555-56, 108 S. Ct. at 840. The declarant in Owens
was a corrections officer who experienced memory loss as a result of an attack by the
defendant. Id. at 556, 108 S. Ct. at 840-41. At trial, the officer stated he could not
remember seeing the defendant attack him, but testified that he could remember identifying
the defendant in an interview after the attack. Id. The officer also had difficulty
remembering his hospitalization after the attack. Id. The Court held that there was no
Confrontation Clause violation because the defendant had the opportunity to, and did,
cross-examine the officer. Id. at 559-60, 108 S. Ct. at 842-43; see also Delaware v.
Fensterer, 474 U.S. 15, 22, 106 S. Ct. 292, 295 (1985) (“Confrontation Clause is generally
satisfied” by opportunity to cross-examine).
¶7 Here, similarly, Phaneuf testified that he did not remember the events
surrounding Real’s arrest. He stated that he had prepared a “worksheet” in the minutes
following the incident and that a transcribed report was prepared within a few hours. He
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then read from the report in response to questioning. Real cross-examined Phaneuf, availing
himself of the tools of cross-examination discussed in Owens. See Owens, 484 U.S. at 559,
108 S. Ct. at 842 (“It is sufficient that the defendant has the opportunity to bring out such
matters as the witness’ bias, his lack of care and attentiveness, his poor eyesight, and even
. . . the very fact that he has a bad memory.”). Under Owens, this procedure presents no
Confrontation Clause problem.
¶8 Real nonetheless argues that “it is unclear from Crawford whether the
[Supreme] Court intended to leave in place all of its prior case law concerning unavailability
under the Confrontation Clause.” He emphasizes the Court’s statement in Crawford that
“[t]he [Confrontation] Clause does not bar admission of a statement so long as the declarant
is present at trial to defend or explain it,” 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9
(emphasis added), and contends that a declarant who lacks memory of prior events cannot
“defend or explain” his statement. But the Court in Crawford did not expressly overrule
Owens or other cases suggesting that there is no Confrontation Clause violation when the
court admits prior statements the witness does not remember making, if the witness testifies.
See, e.g., California v. Green, 399 U.S. 149, 161, 90 S. Ct. 1930, 1936 (1970) (“none of
our decisions interpreting the Confrontation Clause requires excluding the out-of-court
statements of a witness who is available and testifying at trial”); Fensterer, 474 U.S. at 21-
22, 106 S. Ct. at 295 (no Confrontation Clause violation where expert testified to opinion
but could not recall basis of the opinion). In fact, the Crawford Court cited Green in dicta,
5
and “reiterate[d] that, when the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of his prior testimonial
statements.” Crawford, 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9.
¶9 “We cannot ignore a Supreme Court decision interpreting federal law unless
the Court expressly overrules or casts cognizable doubt on that decision.” State v. Ring,
204 Ariz. 534, ¶ 61, 65 P.3d 915, 938 (2003). And, as Real concedes, courts in other
jurisdictions that have addressed the issue have concluded Crawford did not affect the
continuing validity of Owens. See, e.g., People v. Sharp, 825 N.E.2d 706, 711 (Ill. App.
2005) (Supreme Court in Crawford “neither overruled nor called into question” Fensterer
or Owens); State v. Pierre, 890 A.2d 474, 500 (Conn.), cert. denied, ___ U.S. ___, 126 S.
Ct. 2873 (2006) (same); see also State v. Tate, 682 N.W.2d 169, 176 n.1 (Minn. App.
2004) (where declarant subject to cross-examination at trial, Crawford does not apply);
State v. Carothers, 692 N.W.2d 544, 549 (S.D. 2005) (same). Accordingly, we reject
Real’s assertion that, by stating in a footnote that a declarant must be able to “defend or
explain” his prior statement, the Crawford Court intended to overrule or cast doubt on
Owens.3
¶10 Real next contends this case is factually distinguishable from Owens because
in Owens the witness lacked memory only as to the prior identification, whereas here,
Phaneuf testified to a complete lack of memory of the events surrounding Real’s arrest. But
3
Justice Scalia wrote for the Court in both Owens and Crawford.
6
the Supreme Court did not suggest in Owens that the declarant’s retention of some memory
of the attack was crucial. Instead, it explained that the opportunity for cross-examination
is all the Confrontation Clause protects. Owens, 484 U.S. at 559, 108 S. Ct. at 842; see
also State v. Carreon, 210 Ariz. 54, ¶ 36, 107 P.3d 900, 909 (2005), cert. denied, ___ U.S.
___, 126 S. Ct. 122 (2005) (“[T]he ‘main and essential purpose of confrontation is to secure
for the opponent the opportunity of cross-examination.’”), quoting Davis v. Alaska, 415
U.S. 308, 315-16, 94 S. Ct. 1105, 1110 (1974). The Confrontation Clause does not
guarantee that the resulting cross-examination will be effective. Owens, 484 U.S. at 559,
108 S. Ct. at 842. Here, Real had the opportunity to cross-examine Phaneuf, and he did so.
Thus, the trial court afforded him the only right the Confrontation Clause provides.
¶11 Real further contends Phaneuf was “unavailable” as a witness under Crawford,
citing Rule 804(a)(3), Ariz. R. Evid., 17A A.R.S. (a declarant who “testifies to a lack of
memory of the subject matter of the declarant’s statement” is “unavailable as a witness”).
But the Supreme Court has separated the states’ hearsay rules and analysis from the
constitutional Confrontation Clause analysis. See Crawford, 541 U.S. at 68, 124 S. Ct. at
1374. And even if Phaneuf was unavailable as a witness under Rule 804(a)(3), an issue Real
did not raise below or here, he testified at trial and was subject to cross-examination. See
id. at 59 n.9, 124 S. Ct. at 1369 n.9 (no Confrontation Clause problem “when the declarant
appears for cross-examination at trial”). If Real were correct that the evidentiary definition
of unavailability also governed the determination of whether a witness appeared for cross-
7
examination, surely there would have been a Confrontation Clause problem in Owens,
where the declarant testified to a lack of memory. Owens, 484 U.S. at 556, 108 S. Ct. at
841; Fed. R. Evid. 804(a)(3) (declarant who testifies to lack of memory unavailable).
Consequently, Phaneuf’s unavailability as defined by the rules of evidence is irrelevant.
¶12 Real cites State v. Williams, 889 So. 2d 1093 (La. App. 2004), in support of
his position that Phaneuf was unavailable for cross-examination under Crawford. But in
Williams, the codefendant/witness testified at trial, although steadfastly refusing to answer
any questions regarding his prior statement implicating Williams. Id. at 1099-1100. In fact,
he denied making any statement. Id. at 1101. The court determined the admission of the
prior statement violated Crawford. Id. at 1102. Here, in contrast, Phaneuf testified and was
subject to unrestricted cross-examination but could not remember the events independently.
Therefore, the case is distinguishable from Williams and we need not determine whether we
would agree with the Williams court if the same situation were presented.4
¶13 Finally, Real contends that permitting officers to read from their police reports
when they do not recall the events surrounding preparation of the report will encourage
police officers to testify to a lack of memory and “will lead to prosecution by police report,
which is precisely what Crawford and the Confrontation Clause are intended to prevent.”
4
Real also cites United States v. Gardinier, 63 M.J. 531 (A. Ct. Crim. App. 2006),
in support of his argument. But that case involved the admission of videotaped testimony
of a child victim who did not appear at trial, id. at 536-37, and accordingly does not help
Real.
8
We disagree. As Crawford ’s extensive historical analysis makes clear, the protection the
Confrontation Clause provides is the opportunity to cross-examine the declarant. See
Crawford, 541 U.S. at 42-50, 124 S. Ct. at 1359-63. Real had that opportunity here.
Furthermore, we perceive little advantage to a police officer falsely claiming that he has no
recollection of the events surrounding an arrest, rather than simply refreshing his
recollection from his report. Accordingly, we reject Real’s public policy argument.
¶14 For the foregoing reasons, Real’s convictions and sentences are affirmed.
____________________________________
JOSEPH W. HOWARD, Presiding Judge
CONCURRING:
____________________________________
JOHN PELANDER, Chief Judge
____________________________________
GARYE L. VÁSQUEZ, Judge
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