State v. Jorge A. Lopez-Orozco , 159 Idaho 375 ( 2015 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 40859
STATE OF IDAHO,
Boise, June 2015 Term
Plaintiff-Respondent—Cross Appellant,
' 2015 Opinion No. 104
v.
Date: November 4, 2015
JORGE ALBERTO LOPEZ-OROZCO,
Stephen W. Kenyon, Clerk
Defendant-Appellant-Cross
Respondent.
VVVVVVVVVVV
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, Elmore County. Hon. Timothy Hansen, District Judge.
The judgment of the district court is affirmed.
Sara B. Thomas, Idaho State Appellate Public Defender, Boise, attorney for
appellant. Sally J. Cooley argued.
Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for
respondent. Jessica M. Lorello argued.
W. JONES, Justice
I. NATURE OF THE CASE
A jury convicted Jorge Lopez-Orozco (“Defendant”) of three counts of first degree
murder. The district court imposed three concurrent determinate life sentences. Defendant
appeals from the judgment of conviction based on two alleged evidentiary errors committed by
the district court. First, Defendant argues the district court erred in finding that his brother was an
unavailable witness at trial and permitting his brother’s preliminary hearing testimony to be read
into evidence. Second, Defendant contends that the court erred in allowing his brother’s unsworn
written statement to law enforcement to also be read into evidence. Defendant requests that his
convictions be vacated and the case remanded for further proceedings.
II. FACTUAL AND PROCEDURAL BACKGROUND
On August 11, 2002, a burned car was found in a remote desert area outside of Mountain
Home, Idaho. Inside the car were the charred remains and bone fragments of Rebecca Ramirez
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Almarez (“Almarez”) and her two sons, four-year~old RR. and two-year-old M.H. Almarez and
M.H. had suffered fatal gunshot wounds to the head, but R.R.’s cause of death was
undetermined. The vehicle belonged to Defendant, who previously dated Almarez.
On August 16, 2002, the State filed a complaint charging Defendant with three counts of
first—degree murder for the deaths of Almarez and her two sons. Defendant fled to and remained
in Mexico, where he was discovered by Mexican law enforcement in 2009. Defendant was
extradited to Idaho in 2011 and placed under arrest for the murders. In June 2011, the magistrate
division of the district court held a preliminary hearing. At the conclusion of the hearing, the
magistrate judge found probable cause to support the three first—degree murder charges against
Defendant. Defendant pleaded not guilty to the charges and the case proceeded to trial in October
2012. A jury convicted Defendant on all three counts, and the court imposed three concurrent
fixed life sentences. Defendant timely appealed two issues related to the testimony and
statements of his brother, J ose' Lopez—Orozco (“Jose”).
Jose’ is Defendant’s youngest brother. At both the preliminary hearing and trial, Jose’ was
called by the State to testify as to certain incriminating statements Defendant allegedly made in
J ose”s presence in San Jose, California, in late July or early August 2002. According to a written
statement Jose’ provided to law enforcement, Jose’ was present at the apartment he shared with
V alvina Lopez—Orozco (“Valvina”) when Defendant discussed the events on the evening of the
murders. Jose’ allegedly overheard Defendant confess to killing Almarez and the children and to
burning his white Pontiac Grand AM with Almarez and the children inside. These statements
were made by Defendant to Valvina and Simon Lopez—Orozco (“Simon”) while Valvina, Simon,
and Defendant were sitting at the kitchen table. Defendant, Jose’, Simon, and Valvina are
siblings. Jose’ overheard this conversation from his position in the living room.
Defendant’s confession was purportedly unearthed during a discussion between José and
Detective Enrique Garcia of the San Jose Police Department on August 16, 2002. Jose’s August
2002 interview with Detective Garcia was later summarized, reduced to writing, and prepared for
Jose’s signature. Jose’ signed this written statement in 2009. The document, entitled “Statement
of Jose' Aurelio Lopez Orozco,” was initially drafted in Spanish and signed and dated by Jose',
with each page also initialed by J osé. The document was translated to English, the accuracy of
which is not contested by either the State or Defendant.
hearing testimony on the subject matter in 2011. Jose attributed this lapse in memory to the
length of time that had passed since the events and the emotional nature of the subject matter.
Given Jose’s testimony that he lacked the memory to testify regarding the subject matter
at issue, the district court found that Jose’s responses made clear that he “simply lack[ed] the
memory or recollection of the incidents in question.” This finding is supported by substantial and
competent evidence.
Defendant argues that the State was required to do something more to develop and
establish the contours of Jose’s unavailability. Specifically, Defendant goes to great lengths to
argue that the State’s line of questioning merely established that Jose lacked memory of having
made the prior out-of-court statements, but did not lack memory of the actual subject matter of
those statements. However, this argument is directly contradicted by José’s trial testimony and
fails to account for the first question in the State’s line of questioning, wherein the State
specifically inquired into whether Jose’ remembered the substance of the conversation he
overheard between Defendant and his siblings regarding why Defendant left Idaho in 2002. It
was only with the State’s second and third questions that it inquired into whether Jose’ had any
memory of his own statements to law enforcement or his preliminary hearing testimony on this
subject matter. Jose’s testimony satisfies the requirements of Idaho Rule of Evidence 804(a)(3)
and constitutes substantial and competent evidence supporting the district court’s finding.
As to the second factor under Idaho Rule of Evidence 804(b)(l), Defendant had ample
opportunity to develop testimony through cross-examination of Jose’ at the preliminary hearing.
Defendant was represented by counsel at that time, who had sufficient opportunity to prepare for
the hearing. Further, the magistrate judge put no significant limitations on the scope of the prior
examination. Defendant therefore had means and motive to cross—examine Jose at the
preliminary hearing similar to his means and motive at trial. Finally, Defendant has failed to
show any new and material line of questioning which would render the prior line of questioning
inapplicable or insufficient.
In addition to Idaho Rule of Evidence 804(b)(l), Idaho Code section 9—336 also purported
to admit preliminary hearing testimony; however, any statute pertaining to the admission of
evidence is of no force or effect where an Idaho Rule of Evidence covers the same subject
matter. I.R.E. 1102. Where a statutory provision is not in conflict with the applicable rules of
evidence then it will be immaterial. Conversely, where a statutory provision is inconsistent with
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the applicable rules of evidence, then that statutory provision is invalid. Because the subject
matter of Idaho Code section 9-336 is already governed by Idaho Rule of Evidence 804(b)(l), it
is not necessary for this Court to provide any analysis of Idaho Code section 9-336.
In summary, the trial court’s findings regarding Jose’s unavailability are supported by
substantial and competent evidence and comport with the requirements of Rule 804(b)(l).
B. The district court’s decision to permit José’s written statement to law enforcement
to be read to the jury was not an abuse of discretion.
Before Jose’ was called as a witness by the State at Defendant’s trial, the district court
made two preliminary but pertinent findings with respect to Jose’s written statement to law
enforcement. First, the court found that the public records hearsay exception outlined in Idaho
Rule of Evidence 803(8) did not apply to this written statement. This finding is not challenged on
appeal. Second, the court found that Jose’s written statement qualified as a recorded recollection
pursuant to Idaho Rule of Evidence 803(5) so long as the State laid the necessary foundation at
trial through Jose’s testimony, which the trial court ultimately concluded it did. Defendant
appeals this second finding.
The written statement to law enforcement signed by Jose qualifies as hearsay. I.R.E.
801(c). Absent an applicable exception, this statement is inadmissible to prove the truth of the
matter asserted under the evidentiary rules. I.R.E. 802. In this case, the district court correctly
recognized that it did not have discretion to read this written statement into evidence unless the
requirements of a hearsay exception were met, acted consistently within the bounds of its
discretion and the rules governing hearsay exceptions, and reached its decision through an
exercise of reason. For the reasons outlined below, the recorded recollection exception outlined
in Idaho Rule of Evidence 803(5) applies to Jose”s written statement, and the district court did
not abuse its discretion in permitting the same statement to be admitted under this exception.
Under Rule 803(5), the trial court is vested with the discretion to allow Jose’s written
statement to be read into the record as a recorded recollection. I.R.E. 803(5); State v. Higgins,
122 Idaho 590, 599, 836 P.2d 536, 545 (1992). Under Rule 803(5), a recorded recollection is
defined as:
A memorandum or record concerning a matter about which a witness once had
knowledge but now has insufficient recollection to enable the witness to testify
fully and accurately, shown to have been made or adopted by the witness when
the matter was fresh in the memory of the witness and to reflect that knowledge
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correctly. If admitted, the memorandum or record may be read into evidence but
may not itself be received as an exhibit unless offered by an adverse party.
l.R.E. 803(5).
The district court found that the requirements of Rule 803(5) were satisfied for purposes
of admissibility. Defendant argues that the district court erred in reaching this conclusion,
contending that the requisite safeguards for reliability and accuracy were not present because the
written statement was unsworn, substantial time had lapsed between the events at issue and the
preparation of the statement, the statement was not prepared by Jose and was allegedly not
adopted by him, and because it did not accurately reflect his knowledge in 2002. The State
argues that Defendant failed to preserve this issue for appeal, but asserts in the alternative that
Defendant’s arguments fail on the merits. For the reasons outlined it greater detail below,
Defendant’s appellate arguments fail as unpreserved and also on the merits.
On the issue of preservation, a thorough review of the record of the proceedings below
indicates that Defendant failed to raise these arguments to the district court at trial. While
defense counsel lodged a general hearsay objection purporting to cover both the admission of the
preliminary hearing testimony and also the written statement, counsel’s trial arguments focused
almost exclusively on the preliminary hearing transcript. Defendant failed to raise specific
arguments regarding the applicability of the recorded recollection exception to the written
statement at trial, thus failing to preserve this issue for appeal. State v. Bingham, 116 Idaho 415,
423, 776 P.2d 424, 432 (1989). Defendant did, however, create a record before the magistrate
court at the preliminary hearing regarding the admissibility of Jose’s written statement. This
transcript, which contained Defendant’s particularized hearsay objections to the written
statement, was read into evidence at trial. While this is insufficient to preserve the issue, because
the district court reviewed and considered the preliminary hearing transcript at trial, this opinion
will address the merits of the arguments advanced on appeal. However, this Court holds that
Defendant’s failure to renew, lodge, or raise the same, similar, or any specific objection or
argument at trial regarding the written statement leaves the arguments unpreserved for appeal.
Even if the issue was properly preserved below, the trial court did not abuse its discretion
in permitting the written statement to be read to the jury under the recorded recollection hearsay
exception. In analyzing this issue, it is helpful for this Court to first review the contents of the
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written statement Jose’ signed for law enforcement in 2009. In pertinent part, José declares in his
non-sworn statement to law enforcement as follows:
On August 16, 2002, I talked to Detective Enrique Garcia, of the San Jose
Police Department, Homicide Unit, regarding the whereabouts of my brother
[Defendant]. [Defendant] is also known as “Pepe.”
When Detective Garcia talked to me, I told him that I knew why [he]
wanted to see me. I told [him] that it was because [Defendant] killed his
girlfriend. I told Detective Garcia during this interview that in late July or early
August of 2002, [Defendant] arrived at the apartment that I shared with my sister
[V]alvina, in San Jose, California. The rest of this statement shows what I told
Detective Garcia about [Defendant’s] visit and what happened during the visit.
In late July or early August of 2002, Simén Lopez Orozco (from here on,
“‘Simon”), who is also my brother, brought [Defendant] to the apartment that I
shared with my sister [V]alvina in San Jose, California. That night, [Defendant],
Simén and [V]alvina were sitting at the kitchen table, and I was in the living
room.
[Defendant] seemed sad and desperate when he told [V]alvina and Simon
how he had killed Rebecca [Almarez], also known as Becky, and the children.
[Defendant] said that he had also burned his vehicle, a white [Pontiac] Grand AM,
with [Almarez] and the children inside. [Defendant] didn’t say how he had burned
the vehicle. [Defendant] didn’t say where this had happened.
I also heard [Defendant] say the following: [Almarez] was in Oregon
visiting her father, and she called [Defendant] and asked him to pick her up.
[Defendant] drove to Oregon in a white Grand AM vehicle. When he arrived to
pick her up, [Almarez] didn’t want to go with him. [Defendant] was on his way
back to Idaho when [Almarez] called him again and asked him to go back to pick
her up. [Defendant] returned to Oregon to pick up [Almarez]. When he arrived, he
noticed some suspicious individuals in the area. [Almarez] and her two children
left with [Defendant] to Idaho. The suspicious individuals started following them
in a truck and fired some bullets at them. [Defendant] wasn’t hit, and he was able
to get rid of the individuals. At some point in time, a police car was behind them,
but didn’t stop them. [Almarez] was telling [Defendant] that she would tell the
police that he was keeping her against her will. [Almarez] threatened to throw one
of the children out of the window if [Defendant] didn’t stop the car. [Defendant]
didn’t stop the car. [Defendant] reacted to [Almarez’s] threats and shot her. Then
[Defendant] took her body to a field and burned it inside the vehicle. [Defendant]
didn’t mention in detail what happened with the children.
I was able to hear [Defendant] say all this because the kitchen where the
conversation took place was beside the living room, where I was. [Defendant]
would have known that I was in the living room. I haven’t had contact with
[Defendant] or Simon since August of 2002.
Jose initialed each page of the statement and signed and dated it at the end.
In determining whether this statement qualified for treatment under the recorded
recollection hearsay exception, the district court applied Rule 803(5)’s standards as follows:
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The standard [for Rule 803(5)] is whether or not the memorandum of
record in question is something of which a witness once had knowledge but now
has insufficient recollection to enable the witness to testify fully and accurately
and was shown to have been made or adopted by the witness when the matter was
fresh in the memory of the witness and to reflect that knowledge correctly. It also
provides as to how that is provides to the jury, [but] I’ll get to that here in just a
moment.
[T]he question for the [c]ourt therefore becomes whether or not we
have an issue of insufficient recollection and whether or not the statement was
made or adopted by the witness when the matter was fresh in the memory of the
witness and appears to reflect the knowledge correctly.
The Court would find that based upon the information contained in the
preliminary hearing transcript, it appears that the statements were made or
adopted by the witness when the matter was fresh in their memory, [and] there is
no time limit as to when that occurs. But it does appear to me from the
information and evidence provided that the element has been established and
does, in fact, appear to correctly reflect the knowledge at that time. Therefore, the
[c]ourt does find that that would come in pursuant to 803(5).
In addition, the [c]ourt also notes and acknowledges the magistrate’s
findings, which the [c]ourt finds to be appropriate, as well. The issues related to
coercion or alleged coercion or threats [by law enforcement] or anything such as
that goes more to weight than to admissibility. As long as the State is able to
provide the necessary foundation from 803(5)[,] those recollections should be
made available to the jury for their consideration.
Based upon these findings, the district court permitted Jose’s statement to be read to the
jury under the recorded recollection hearsay exception. The district court’s findings are
supported by substantial and competent evidence in the record. At trial, Jose was called as a
witness and promptly denied any memory of Defendant’s alleged confession. In response, the
State asked Jose to review his 2009 written statement to law enforcement as an attempt to refresh
his recollection. After reviewing this statement, Jose testified that his initials and signature
appeared on the statement, but again denied any memory of Defendant’s statements in 2002, his
own statements to law enforcement in 2002 and 2009, and his preliminary hearing testimony in
2011. However, in response to the State’s inquiry as to whether the written statement truthfully
depicted what he remembered at the time he signed it, Jose testified that it did.
Specifically, the following exchange during the State’s direct examination of Jose’ at trial
is instructive as to J ose’s prior recollection and his adoption of the written statement:
State: Okay. At the time that you signed the [s]tatement, did it truthfully
set forth what you remember?
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Jose': Yes. I couldn’t really remember much.
State: Does the [s]tatement set forth what you remember in 2009?
Jose: That is part of the [s]tatement that I gave in 2002 that is in the front
of it.
State: Right. You provided a statement in 2002, correct?
Jose': Yes.
State: And what you [reported being] told by [Defendant] was put in this
document in 2009, correct?
Jose': Seems that way.
State: So when you signed this in 2009, was it true?
Jose’: That’s what I said before.
State: Okay. And today you don’t remember everything you remembered
in 2002?
J ose’: No.
State: And today you don’t remember everything you remember in 2009?
Jose: No.
Given this exchange and Jose’s testimony regarding the contents of his signed statement
to law enforcement, there is substantial evidence to support the district court’s finding that the
requirements for admission of the statement as a recorded recollection under Rule 803(5) were
satisfied. On appeal, Defendant argues that the statement was unreliable and should not have
been admitted because it was not prepared by J ose, it was not properly adopted by him, and it did
not accurately reflect his knowledge in 2002. These arguments, however, are directly
contradicted by Jose’s trial testimony, and further fail because nothing in the rules governing the
hearsay exception requires that the statement be prepared by Jose’. The acts of signing and
initialing the agreement, in conjunction with Jose’s testimony, provide adequate evidence that
the contents of the statement were adopted by J ose’ while they were fresh in his memory.
In an attempt to undermine the adoption requirement, Defendant contends that prior to
Jose’s above-outlined testimony, Jose testified in an inconsistent manner during the same direct
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examination wherein he denied the accuracy of his written statement. This inconsistent
testimony, however, does not negate Jose’s later testimony which established that the contents of
the statement were adopted while they were fresh in Jose’s memory. While it certainly goes to
the weight of this evidence, it does not impact its admissibility under this hearsay exception.
Lastly, Defendant challenges the freshness requirement of this exception, arguing that too
much time elapsed between the events in question and the preparation of the written statement.
Specifically, Defendant states that the written statement “was likely created based on Detective
Garcia’s notes from his interrogation of Jose back in 2002, [but that] it does not appear that the
document was actually prepared until 2009—~seven years after Jose spoke to Detective Garcia.”
This issue is also cured by Jose’s trial testimony. He stated that he was interviewed by Detective
Garcia in 2002 shortly after overhearing Defendant’s statements, and further testified that a
written statement was prepared in 2009 which accurately memorialized his 2002 interview. This
testimony is sufficient to support a finding that the events were fresh in José’s mind.
For the reasons outlined above, the trial court did not abuse its discretion in finding that
the written statement signed by J osé satisfied the requirements of Idaho Rule of Evidence 803(5).
The admission of this statement as verbal testimony under the recorded recollection hearsay
exception was supported by substantial and competent evidence. Thus, the district court’s
decision is affirmed.
VI. CONCLUSION
The judgment of the district court is affirmed.
Chief Justice J. JONES, Justices ElSMANN, BURDICK, and HORTON CONCUR.
l7
On June 15, 2011, Jose’ provided limited testimony at Defendant’s preliminary hearing
regarding the statements made by Defendant in California in 2002. Over Defendant’s hearsay
objection, the written statement was admitted at the preliminary hearing under the recorded
recollection exception. At Defendant’s trial in October 2012, Jose’ was again called by the State
to testify. In this instance, Jose’ testified that he did not remember any of Defendant’s statements
regarding why he left Idaho, any of his own statements to law enforcement in California, or any
of his testimony at the preliminary hearing. Based on this lack of recollection, the State asked the
district court to declare Jose’ unavailable as a witness and to allow his preliminary hearing
testimony to be read to the jury. The State also asked for the contents of the written statement
Jose’ signed for law enforcement in 2009 to be read into evidence. The court allowed the written
statement and certain relevant portions of Jose’s preliminary hearing testimony to be read into
the record, but not admitted as exhibits.
Defendant argues that the district court erred in permitting Jose’s preliminary hearing
testimony to be read to the jury, which was based on its finding that he was an unavailable
witness, and further erred in permitting his written statement to law enforcement to also be read
to the jury.
[11. ISSUES ON APPEAL
1. Whether the district court erred in declaring Jose’ an unavailable witness and allowing his
preliminary hearing testimony to be read into evidence under the former testimony
hearsay exception.
2. Whether the district court erred in permitting Jose’s written statement to law enforcement
to be read to the jury under the recorded recollection hearsay exception.
IV. STANDARD OF REVIEW
“The trial court has broad discretion in the admission and exclusion of evidence and its
decision to admit evidence will be reversed only when there has been a clear abuse of that
discretion.” State v. Robinett, 141 Idaho 110, 112, 106 P.3d 436, 438 (2005). When evidence is
admitted under a recognized hearsay exception, the key inquiry is “whether the district court
recognized that it did not have discretion to admit the hearsay evidence if the requirements for an
exception were not met; whether it acted consistently with the rules governing hearsay
exceptions; and whether it reached its decision to admit the hearsay by an exercise of reason.”
State v. Watkins, 148 Idaho 418, 423, 224 P.3d 485, 490 (2009). However, “in the absence of a
timely [and Specific] objection to an alleged error at trial, this Court will not consider the alleged
error on appeal.” State v. Bingham, 116 Idaho 415, 423, 776 P.2d 424, 432 (1989); I.R.E.
103(a)(1). “[A]ppellate courts will not consider new arguments raised for the first time on
appeal.” Obenchain v. McAlvain Comm, Inc, 143 Idaho 56, 57, 137 P.3d 443, 444 (2006).
V. ANALYSIS
A. The district court’s decision to permit Jose’s preliminary hearing testimony to be
read to the jury was not an abuse of discretion.
After being held briefly in contempt, fined, and remanded to the custody of the Elmore
County Sheriff‘s Office based on his refusal to respond to the State’s questions, Jose’ eventually
cooperated and provided some limited testimony at Defendant’s preliminary hearing on June 15,
2011. After providing this testimony, these sanctions were lifted by the magistrate court.
Specifically, Jose was asked to testify at the preliminary hearing regarding the subject matter of
his statements to law enforcement in 2002 and the written statement he signed for law
enforcement in 2009, which cover the same subject matter since the written statement purports to
summarize the interview. The crux of the written statement detailed Defendant’s incriminating
statements to Valvina and Simon that Jose’ overheard in 2002.
At the preliminary hearing, Jose’ testified about certain of his earlier statements to law
enforcement, but was unable to recall many of the material details he previously provided.
Specifically, Jose’ testified that he overheard Defendant say that he picked Almarez up from her
father’s house in Oregon and that someone wanted to kill Defendant and/or Almarez. However,
he further testified that he did not remember overhearing Defendant discuss what happened to
Almarez. In response to this lack of recollection, the State provided Jose’ with his signed
statement. After reviewing this written statement, Jose’ testified that the signature and initials on
the statement were his, and that the statement was an accurate depiction of his memory at the
time he spoke to Detective Garcia in August 2002 and when he signed it in 2009. Based on
Jose’s lack of recollection, the State moved to admit the statement under the recorded
recollection hearsay exception. Over Defendant’s hearsay objection, the magistrate court granted
the State’s request.
Jose’ was again called to testify at Defendant’s trial in 2012. However, prior to taking the
stand on October 29, 2012, and based on the State’s discussions with Jose’ and Valvina in
anticipation of their testimony, the court heard argument outside of the jury’s presence regarding
the witnesses” inability or unwillingness to testify. Specifically, both witnesses had indicated a
lack of memory as to any of the information the State was seeking to elicit from them in their
trial testimony. Based on this anticipated unavailability, the State asked that Jose and Valvina’s
preliminary hearing testimony and Jose’s written statement be admitted at trial under various
hearsay exceptions. The district court stated that it would entertain argument from counsel and
provide the parties with a tentative ruling, but clarified that the witnesses would have to be
present and testify before the court could make a definitive determination as to whether Jose’ or
Valvina qualified as unavailable. In the court’s view, any resolution reached prior to their
attempted testimony “was simply to be a preliminary ruling from the [c]ourt rather than a final
ruling, depending on the testimony of the witnesses when they are called.”
With this understanding, the parties argued whether the requirements for certain hearsay
exceptions were satisfied with respect to these out—of-court statements. The State argued that the
written statement qualified under the public records exception of Idaho Rule of Evidence 803(8)
or as a recorded recollection under Idaho Rule of Evidence 803(5). The State also asserted that
Jose’s preliminary hearing testimony should be admitted pursuant to Idaho Rule of Evidence
804(b)(l) and Idaho Code section 9636,] the former testimony exception and a statutory
provision specifically covering the admissibility of preliminary hearing testimony. The crux of
the State’s oral argument focused on whether or not Defendant had an adequate opportunity to
cross-examine Jose’ at the preliminary hearing. Specifically, the State argued that Defendant was
represented by counsel at the preliminary hearing, defense counsel had a sufficient opportunity to
prepare for the hearing, Defendant had a means and motive to cross—examine Jose’ and Valvina at
the preliminary hearing similar to his motive at trial, the magistrate judge put no significant
limitations on the scope of the prior examination, and there was no showing of a new or material
line of questioning which would render the prior line of questioning inapplicable or insufficient.
In response to these arguments, Defendant asserted that these are not the only individuals
capable of providing substantial evidence on certain material elements of the offenses charged.
In addition, Defendant disagreed with the State’s reliance on Rule 803(8), arguing that the public
records exception does not apply to a statement being utilized by the State which was prepared
by law enforcement in preparation of a criminal charge or during the course of an investigation.
' Idaho Code section 9—336 was repealed during the 2015 Legislative Session. Ch. 140, § 1, 2015 Idaho Sess.
Laws 344, 344. It was replaced by Idaho Code section 74—125, which contains identical language to section 9-336.
LC. § 74—125.
Defendant also contended that Jose’s preliminary hearing testimony was compromised and
unreliable because he was not represented by counsel at the hearing and certain of his due
process rights were not explained to him. Lastly, while maintaining that the hearsay exceptions
do not apply, Defendant alternatively argued that if an exception is utilized, the prior testimony
and written statement should be read to the jury but not introduced into evidence as exhibits.
At the conclusion of oral argument, the district court articulated a number of findings and
conclusions. First, the court found that Idaho Rule of Evidence 803(8) did not apply, specifically
that the public records exception did not cover J ose”s written statement to law enforcement. This
finding is not challenged on appeal. Second, and assuming Jose’ and Valvina testified to a
diminished memory as represented, the court tentatively ruled that their preliminary hearing
testimony qualified for admittance under Idaho Rule of Evidence 804(b)(l) as former sworn
preliminary hearing testimony which was subject to cross—examination. The court specifically
found that defense counsel “had a meaningful opportunity to cross-examine [Jose], regardless of
the nature of the cross-examination that was conducted.” On the issue of whether the evidence
sought to be offered was material and more probative than any other evidence which the State
could procure through reasonable efforts, the court stated that Jose’ and Valvina were the only
two witnesses realistically available to attribute these statements to Defendant in the apartment in
2002. For these reasons, the court preliminarily found that Jose’s preliminary hearing testimony
qualified under the former testimony hearsay exception and the statute controlling the
admissibility of preliminary hearing testimony. Defendant appeals these findings with respect to
Jose’s prior testimony.
The district court then turned to the issue of whether Jose’s written statement to law
enforcement qualified as a recorded recollection under Idaho Rule of Evidence 803(5). The
court’s analyses and the parties’ arguments on this issue will be outlined in section V(B), infra.
After the court entered its preliminary ruling on the applicable hearsay exceptions, the
jury was re-sworn and Jose’ took the witness stand. Jose’ promptly testified that he could not
remember any statements that Defendant made about leaving Idaho in 2002, he could not recall
any of his own statements to law enforcement about Defendant’s statements, and he had no
memory of his own preliminary hearing testimony. Jose’ stated that his lack of recollection was
possibly due to the length of time that had passed and because this was an “emotionally charged
issue” for him. As a result of this testimony, the State asked the district court to declare Jose’
unavailable as a witness and to permit his preliminary hearing testimony to be read to the jury.
Based on Jose’s testimony, the State’s request, the preliminary arguments advanced, and the
court’s tentative ruling on this issue, the court granted the request.
On appeal, Defendant argues the court erred in declaring J ose' unavailable for two related
reasons. First, Defendant contends that Jose' “merely lacked memory of having made the out-of-
court statements,” but did not lack “memory of the subject matter.” Second, Defendant argues
that the State’s “inquiry was insufficient to establish that Jose’ had no memory of the subject
matter” of his own and Defendant’s statements. Defendant’s arguments fail for two reasons. For
one, this issue was not properly preserved because these arguments were not raised before the
district court. Second, the court had substantial evidence to permit the reading of Jose’s prior
testimony under the former testimony hearsay exception. Specifically, the district court
recognized it did not have the discretion to read Jose’s preliminary hearing testimony into
evidence unless a hearsay exception existed under the Idaho Rules of Evidence, it acted
consistently within the bounds of its discretion and the evidentiary and statutory rules governing
this exception, and it reached its decision through an exercise of reason.
The following exchange during the State’s direct examination of Jose’ at trial is
illustrative as to both the preservation and merits of this issue:
State: Sir, do you recall any statements that the defendant made in your
presence about his leaving Idaho in 2002?
Jose: No.
State: Sir, do you recall any statements that you gave to law enforcement
about what you overheard the defendant say?
Jose': No.
State: Sir, do you recall the testimony that you provided on June 15, 2011
[at the preliminary hearing] on these very issues?
Jose': No.
State: And sir, is your lack of recall due to the length [of] time since
2002, when these events occurred.
J ose’: Maybe.
State: It’s been a long time for you?
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Jose':
State:
Jose:
State:
(Jury excused)
Court:
State:
Court:
Defense Atty:
Court:
Defense Atty:
Yes.
And this has been a very emotionally charged issue for you?
Too emotional.
. . . All right. Your Honor, at this time the State would ask the
Court to find the witness unavailable under Idaho Rule of Evidence
804(a)(3).
In this case, then, [State], is there any additional record that you
would like to make concerning your request at this time?
Your Honor, the witness has testified under oath today that he does
not remember any of the statements made by the defendant, that he
does not recall any statements that he has provided to law
enforcement, and that he does not recall the content of his
testimony from June 15th 2011.
At this time, Your Honor, the State submits that the State has
established that he is unavailable under Idaho Rule of Evidence
804(a)(3). We would ask the Court to allow publication of his
preliminary hearing testimony under 804(b)(l) as prior testimony
of this witness.
[Defense counsel], two issues, I believe, because this issue is one
of fact for the Court in terms of making its determination as to the
unavailability of the witness, did you have any questions that you
would like to ask [Jose'] concerning the questions of his
unavailability at this time?
Judge, I would not.
Okay. Is there any additional argument then that you would like to
make concerning the State’s request at this time?
I think we have to . . . [distinguish] between what is happening
here and what happened in State versus Barcella, a refusal to
testify versus an inability to recall. But other than that, Judge, I
would rest on the record.
The trial court went on to clarify that it viewed this as a case of diminished memory, not refusal
to testify. Specifically, the district judge found persuasive Jose’s answer that the lapse in time
“maybe” contributed to his memory loss, along with his admission that this was an emotionally
charged issue for him. For these reasons, the court found that Jose’s sworn testimony “laid a
sufficient factual basis from which the [c]ourt can determine that [J ose’] simply lacks the memory
or recollection of the incidents in question.”
Regarding preservation, Defendant advances only one argument on appeal regarding the
admissibility of Jose’s preliminary hearing testimony: the trial court erred in finding Jose’
unavailable as a witness under the statutory and evidentiary standards controlling the former
testimony hearsay exception and the admission of preliminary hearing testimony at trial. Before
the trial court, however, defense counsel only objected to the admissibility of the preliminary
hearing testimony on the following grounds: the adequacy of Defendant’s prior opportunity to
cross—examine Jose'; whether Defendant had a similar motive to challenge or develop Jose’s
testimony at the preliminary hearing stage; and, arguing the State’s ability to elicit the same or
similar testimony from other sources. No other issues were raised or argued below, and
Defendant never objected to or squarely challenged the district court’s finding that José was
unavailable due to memory loss. Instead, Defendant’s only response to the trial court’s now—
contested finding was to seek clarification as to whether Jose’s unavailability was due to
diminished memory or a refusal to testify, even though Defendant was specifically invited by the
district court judge to supplement the record on this issue. Defense counsel, however, declined to
further develop or challenge the foundation laid by the State regarding Jose’s memory—based
unavailability. Thus, Defendant failed to preserve the issue of Jose’s availability by not raising a
timely and specific objection to this alleged error at trial. State v. Bingham, 116 Idaho 415, 423,
776 P.2d 424, 432 (1989). Instead, Defendant improperly advances these arguments for the first
time on appeal. Obenchain v. McAlvain Comm, 143 Idaho 56, 57, 137 P.3d 443, 444 (2006).
However, even if the issue was properly preserved for appeal, Defendant’s arguments fail
on the merits. The district court made pertinent findings as to the admissibility of Jose’s
preliminary hearing testimony both prior to and after Jose’s failure to adequately testify at trial.
These findings are supported by substantial evidence in the record and satisfy the applicable
statutory and evidentiary standards.
“The Idaho Rules of Evidence define hearsay as an out-of-court statement ‘offered in
evidence to prove the truth of the matter asserted.’ I.R.E. 801(c). Hearsay is not admissible
unless specifically provided for in the Rules of Evidence. I.R.E. 802.” State v. Jay, 155 Idaho 1,
13, 304 P.3d 276, 288 (2013). Jose’s preliminary hearing testimony qualifies as hearsay. Absent
an exception, this testimony should have been barred from admission at trial. The district court
recognized this standard and these requirements in rendering its decision.
Idaho Rule of Evidence 804(b)(1) provides an exception to the hearsay rule where a
witness is unavailable at trial. It allows for the admission of former testimony where: (l) the
witness is unavailable; and (2) “the party against whom the testimony is now offered . . . had an
opportunity and similar motive to develop the testimony by direct, cross, or redirect
examination.” I.R.E. 804(b)(1).
Idaho Rule of Evidence 804(a) defines witness unavailability for purposes of Idaho Rule
of Evidence 804(b)(1). It includes situations in which the declarant “testifies to a lack of memory
of the subject matter of declarant’s statement.” I.R.E. 804(a)(3). In assessing whether a witness is
unavailable due to lack of memory, the relevant inquiry is not whether the witness recalls making
the statement, but rather whether he or she has no current memory of the subject matter. State v.
Fair, 156 Idaho 431, 435, 327 P.3d 989, 993 (Ct. App. 2014). In determining unavailability,
“[t]he district court’s factual finding must be supported by substantial and competent evidence.”
State v. Richardson, 156 Idaho 524, 531, 328 P.3d 504, 511 (2014). The proponent of admitting
the former testimony bears the burden of proving the declarant’s unavailability. Fair, 156 Idaho
at 434, 327 P.3d at 992.
With regard to Rule 804(a), the State carried its burden in this case, and the trial court’s
findings are supported by substantial and competent evidence. Jose’s trial testimony supports the
court’s finding that his memory of Defendant’s confession was so diminished by the time of the
trial that it rendered him unavailable to testify. Specifically, the subject matter at issue is what
Defendant told his siblings in 2002 about his departure from Idaho. To that end, the State
inquired of Jose’ whether he recalled “any statements that the defendant made in your presence
about his leaving Idaho in 2002,” to which Jose’ answered, “No.” Jose’ further testified that he did
not remember any of his own statements to law enforcement in 2002 or 2009, or his preliminary
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