Bohsancurt v. Eisenberg

• Citation: 212 Ariz. 182,129 P.3d 471
• Decision Date: 28 February 2006
• Docket Number: No. 2 CA-CV 2005-0117.,2 CA-CV 2005-0117.
• Parties: Kyle BOHSANCURT, Petitioner/Appellee, v. The Honorable Mitchell EISENBERG, Magistrate of the Tucson City Court, Respondent, and Tucson City Prosecutor's Office, Real Party in Interest/Appellant.
• Court: Arizona Court of Appeals

129 P.3d 471

212 Ariz. 182

Kyle BOHSANCURT, Petitioner/Appellee, v. The Honorable Mitchell EISENBERG, Magistrate of the Tucson City Court, Respondent, and Tucson City Prosecutor's Office, Real Party in Interest/Appellant.

No. 2 CA-CV 2005-0117.

Court of Appeals of Arizona, Division 2, Department A.

February 28, 2006.

Law Office of Stephen Paul Barnard, P.C., By Stephen Paul Barnard, Tucson, for Petitioner/Appellee.

Michael G. Rankin, Tucson City Attorney, By Laura Brynwood and William F. Mills, Tucson, for Real Party in Interest/Appellant.

Gary M. Kula, City of Phoenix Public Defender, By Gary M. Kula and Treasure VanDreumel, Phoenix, for Amicus Curiae City of Phoenix Public Defender's Office.

OPINION

PELANDER, Chief Judge.

¶ 1 The state appeals from the superior court's ruling in a special action in which the court concluded that maintenance and calibration records for an Intoxilyzer 5000 breath-testing machine are testimonial in nature under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Based on that conclusion, the court ruled those records are inadmissible in the underlying criminal case against appellee Kyle Bohsancurt unless he has an opportunity to confront and cross-examine the author of the records. We hold that the records do not fall within the purview of Crawford and are admissible under the public records and business records exceptions to the hearsay rule. Therefore, we reverse the superior court's ruling and remand the case for further proceedings.

BACKGROUND

¶ 2 The underlying facts are undisputed. Bohsancurt was cited for driving under the influence of an intoxicant (DUI) while impaired to the slightest degree in violation of A.R.S. § 28-1381(A)(1) and for driving or being in actual physical control of a vehicle with a breath-alcohol concentration of .08 or more within two hours of driving in violation of § 28-1381(A)(2). After those charges were filed in Tucson City Court, Bohsancurt moved in limine to exclude from evidence the periodic calibration and maintenance records ("quality assurance records" or "QARs") of the Intoxilyzer 5000 breath-testing device that had been used to test his breath sample. Under A.R.S. § 28-1323(A)(5), those records are a necessary foundational predicate for admission of Bohsancurt's breath test results.

¶ 3 In his motion, Bohsancurt argued the QARs are inadmissible unless he has an opportunity to cross-examine the Tucson Police Department (TPD) Crime Laboratory employee ("QA specialist") who conducted the calibration and maintenance tests on the Intoxilyzer. Without that opportunity, Bohsancurt argued, admission of the QARs will violate his constitutional rights under the Sixth Amendment's Confrontation Clause as explained in Crawford. The city court magistrate denied Bohsancurt's motion, finding the QARs are "non-testimonial" and "not of a nature that was sought to be protected by the Framers of the Constitution."

¶ 4 Bohsancurt then obtained a stay of the proceedings and filed a complaint for special action in superior court. In addition to his Crawford argument, Bohsancurt contended the QARs also should be excluded because they constitute inadmissible hearsay. The superior court accepted jurisdiction of the special action, finding that the complaint raised a purely legal issue of first impression in Arizona that is likely to recur. The court concluded that "[u]se of calibration records to lay a foundation for the admission of breath testing results when a witness is unavailable and the Defendant has not had prior opportunity to cross-examine the appropriate declarant. . . violates the Confrontation Clause of the Sixth Amendment under Crawford v. Washington." It further found Bohsancurt's hearsay argument "not dispositive" because, under Crawford, "if testimonial in nature, the evidence must comport with the Confrontation Clause, regardless of its evidentiary label."

¶ 5 The state appeals from that ruling. This court has jurisdiction pursuant to A.R.S. § 12-2101(B) and (E) and Rule 8(a), Ariz. R.P. Spec. Actions, 17B A.R.S.

DISCUSSION

I

¶ 6 The state argues "[t]he lower court erroneously found that Intoxilyzer 5000 periodic maintenance records are testimonial under Crawford." That argument challenges the superior court's interpretation of Crawford, a purely legal issue that we review de novo. See State v. Parks, 211 Ariz. 19, ¶ 23, 116 P.3d 631, 636 (App.2005) ("Although we review a trial court's ruling on the admissibility of evidence under exceptions to the hearsay rule for abuse of discretion, we review a trial court's determination of a Confrontation Clause violation de novo."); see also State v. Moody, 208 Ariz. 424, ¶ 62, 94 P.3d 1119, 1140 (2004).

¶ 7 In Crawford, the Supreme Court attempted to reconcile the inherent conflict between the Sixth Amendment's Confrontation Clause and the various exceptions to the general rule excluding hearsay evidence. The Court overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), in which it had held that an unavailable declarant's "statement is admissible only if it bears adequate `indicia of reliability[,]'. . . [i.e., it] falls within a firmly rooted hearsay exception[,] . . . [or has] particularized guarantees of trustworthiness." Id. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608.

¶ 8 Emphasizing that "[r]eliability is an amorphous . . . concept," the Court in Crawford found the Roberts "framework . . . so unpredictable that it fail[ed] to provide meaningful protection from even core confrontation violations." Crawford, 541 U.S. at 62-63, 124 S.Ct. at 1371. Instead, the Court analyzed the common law and historical context surrounding the Confrontation Clause and concluded the Framers had had two main concerns. Id. at 50, 124 S.Ct. at 1363. First, the Court stated, "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Id. Second, the Court found "that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id. at 53-54, 124 S.Ct. at 1365.

¶ 9 Significantly, the Court in Crawford for the first time distinguished between "testimonial" and "nontestimonial" evidence for Sixth Amendment purposes based on its reasoning that the Confrontation Clause "applies to `witnesses' against the accused—in other words, those who `bear testimony.'" Id. at 51, 124 S.Ct. at 1364, quoting 1 Noah Webster, An American Dictionary of the English Language (1828). As the Court explained, "`[t]estimony' . . . is typically `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id.

¶ 10 The Court adopted an absolute rule when "testimonial" evidence of a witness who does not appear at trial is involved—regardless of reliability, the evidence is inadmissible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him or her. Id. at 68, 124 S.Ct. at 1374. Although the Court decided to "leave for another day any effort to spell out a comprehensive definition of `testimonial,'" id., it did describe a "core class of `testimonial' statements," including,

"ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," . . . [and][s]tatements taken by police officers in the course of interrogations.

Id. at 51-52, 124 S.Ct. at 1364, quoting briefs in case and White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 747, 116 L.Ed.2d 848, 865 (1992) (Thomas, J., concurring in part and concurring in judgment).

¶ 11 The Court held that the "testimonial" characterization "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial and to police interrogations,"¹ reasoning that "[t]hese are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." Id. at 68, 124 S.Ct. at 1374. The Court provided further guidance by stating, "Most of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business records or statements in furtherance of a conspiracy." Id. at 56, 124 S.Ct. at 1367. Finally, with respect to nontestimonial hearsay, the Court explained "it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law," including "an approach that exempt[s] such statements from Confrontation Clause scrutiny altogether." Id. at 68, 124 S.Ct. at 1374.

II

¶ 12 We now turn to the question of whether we should extend the Confrontation Clause protection to QARs because they supposedly are "testimonial" evidence and, therefore, inadmissible under Crawford absent an opportunity to cross-examine their author. The documents in question are created pursuant to R9-14-404 of the Arizona Administrative Code,² which requires "[l]aw enforcement agencies or individuals . . . who conduct alcohol concentration determinations by means of breath-testing devices [to] implement a quality assurance program conducted by a quality assurance specialist." The rule also...