State v. Shivers

• Decision Date: 28 June 2012
• Docket Number: No. 1 CA–CR 10–0974.,1 CA–CR 10–0974.
• Parties: STATE of Arizona, Appellee, v. Corey Demar SHIVERS, Appellant.
• Court: Arizona Court of Appeals

230 Ariz. 91

280 P.3d 635

637 Ariz. Adv. Rep. 4

STATE of Arizona, Appellee,

v.Corey Demar SHIVERS, Appellant.

No. 1 CA–CR 10–0974.

Court of Appeals of Arizona, Division 1, Department A.

June 28, 2012.

Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division, Matthew Binford, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender, By Cory Engle, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

TIMMER, Presiding Judge.

¶ 1 A jury convicted Corey Demar Shivers for interfering with judicial proceedings after he violated the terms of an order of protection by contacting the victim in this case. The issue before us is whether the trial court violated Shivers' Sixth Amendment right to confront witnesses by admitting in evidence a written declaration of service of the order without testimony from the law enforcement officer who served Shivers or a showing the officer was unavailable and Shivers had a prior opportunity to cross-examine him. Applying the holdings in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), Bullcoming v. New Mexico, ––– U.S. ––––, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), and Williams v. Illinois, ––– U.S. ––––, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), we hold the declaration was non-testimonial, and its admission in the absence of the officer's testimony or a showing he was unavailable and Shivers had been given a prior opportunity to cross-examine him did not violate Shivers' Sixth Amendment Confrontation Clause right.

BACKGROUND

¶ 2 Prior to 2009, Shivers and the victim were involved in a romantic relationship that ended badly. On May 21, 2009, the victim obtained an order of protection (the “Order”) from the superior court, which required Shivers to refrain from directly contacting her and to stay away from her residence for a period of one year from the date of service of the Order.

¶ 3 The State subsequently subpoenaed the victim to testify against Shivers in an unrelated matter scheduled to begin on November 2, 2009. Just prior to that proceeding, and while the Order remained in effect, Shivers sent three postcards to the victim's fatherat the residence he shared with the victim. Each postcard threatened legal repercussions for the victim and her family should she testify against Shivers. As a result, the State charged Shivers with one count of influencing a witness and one count of interfering with judicial proceedings for violating the Order.

¶ 4 To prove interfering with judicial proceedings, the State was required to show that Shivers knowingly disobeyed the Order. Ariz.Rev.Stat. (“A.R.S.”) § 13–2810(A)(2) (West 2012) ¹ (“A person commits interfering with judicial proceedings if such person knowingly ... [d]isobeys or resists the lawful order, process or other mandate of a court....”). To establish Shivers' knowledge of the Order, the State offered at trial a declaration of service (the “Declaration”) in which a law enforcement officer declared “under penalty of perjury” he had served the Order on Shivers on May 21, 2009. The officer did not testify at trial, the State did not contend he was unavailable to attend the trial, and no other evidence showed Shivers had been served with the Order. Shivers objected to admission of the Declaration on Sixth Amendment grounds, arguing it was admissible only if he could cross-examine the officer who created it. The court overruled the objection and admitted the Declaration as a self-authenticating document under Arizona Rule of Evidence 902.

¶ 5 The jury ultimately found Shivers guilty of both counts. After sentencing and post-trial proceedings, this timely appeal followed. Shivers only challenges his conviction and resulting sentence for interfering with judicial proceedings.

DISCUSSION

¶ 6 Shivers argues the trial court violated his Sixth Amendment right to confront witnesses by admitting the Declaration without testimony from the officer because it was created solely for use in a later prosecution and was therefore testimonial in nature.² We review claims of Confrontation Clause violations de novo. State v. King, 213 Ariz. 632, 636, ¶ 15, 146 P.3d 1274, 1278 (App.2006).

¶ 7 The Sixth Amendment, applicable to states through the Due Process Clause of the Fourteenth Amendment, guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). In Crawford v. Washington, 541 U.S. at 51, 68, 124 S.Ct. 1354, the Supreme Court construed this guarantee as applicable to “testimonial” evidence, which it described as a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Thus, a court may not admit testimonial statements made by a person who does not testify at trial unless that person is unavailable and the defendant had a prior opportunity for cross-examination. Id. at 53–54, 124 S.Ct. 1354. Although the Court gave various formulations of “testimonial” evidence, ³ it “[left] for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Id. at 68, 124 S.Ct. 1354.

¶ 8 Subsequent Supreme Court decisions have provided additional guidance in distinguishing testimonial and non-testimonial statements made in business and public records. Five years after Crawford, in a drug prosecution, the Court held that affidavits from laboratory analysts avowing that a substance seized from a defendant was cocaine were testimonial, thereby triggering the defendant's right to confront and examine the affiants before admission of the affidavits. Melendez–Diaz, 129 S.Ct. at 2532. The Court stated that business and public records typically do not invoke Sixth Amendment protections “not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.” Id. at 2539–40. But the analysts' affidavits were functionally equivalent to in-court testimony, the Court reasoned, because they were made under circumstances that would have led an objective observer to believe they were prepared for trial, and, by law, they served solely to “provide prima facie evidence of the composition, quality, and the net weight” of the tested substance. Id. at 2532 (internal quotation marks and citation omitted). Thus, Melendez–Diaz clarified that “[a] document created solely for an ‘evidentiary purpose,’ ... made in aid of a police investigation, ranks as testimonial.” Bullcoming, 131 S.Ct. at 2717 (citing Melendez–Diaz, 129 S.Ct. at 2532).

¶ 9 Bullcoming v. New Mexico addressed the admissibility of a certified forensic report, which set forth an analysis of blood for a DUI prosecution, through testimony of a scientist who neither signed the certification nor attended the test but was familiar with the testing mechanism. 131 S.Ct. at 2710. The Court concluded the certification, like the ones at issue in Melendez–Diaz, was testimonial. Id. at 2716–17. It then held the Sixth Amendment required the defendant to be able to confront and cross-examine the person who performed the analysis and signed the certificate. Id. at 2715–16;see also id. at 2719 (Sotomayor, J., concurring in part and concurring in the judgment) (agreeing with majority that certified report was testimonial as its primary purpose was evidentiary).

¶ 10 Williams v. Illinois is the latest Supreme Court opinion that addresses Confrontation Clause objections concerning evidence of a record. In that case, an expert witness testified during a rape trial that a DNA profile produced by Cellmark, a private laboratory, from vaginal swabs taken from the rape victim matched a DNA profile produced by a police laboratory from a sample of the defendant's blood. Williams, 132 S.Ct. at 2227–28. A plurality of the Court held the testimony did not violate the Confrontation Clause because “[o]ut-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.” Id. at 2228. Significantly for this case, the plurality further held that even if the prosecution had elicited testimony about the Cellmark report to establish its truth, the Confrontation Clause would not have been violated. Id. at 2242–43. The plurality applied an objective test to determine “the primary purpose that a reasonable person would have ascribed to the [out-of-court] statement, taking into account all of the surrounding circumstances.” Id. at 2243.⁴ Because the primary purpose of the Cellmark report “was not to accuse [defendant] or to create evidence for use at trial,” Cellmark technicians had no incentive to fabricate the report, and the Court concluded that use of the report “ ‘bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate.’ ” ⁵Id. at at 2243–44 (quoting Bryant, 131 S.Ct. at 1167 (Thomas, J., concurring)).

¶ 11 Applying the holdings in Melendez–Diaz, Bullcoming, and Williams, we examine the circumstances surrounding creation of the Declaration to determine whether it primarily served an administrative or prosecutorial purpose. In doing so, we bear in mind that the mere possibility a record might later be used in a future prosecution does not necessarily render it testimonial. See United States v. Mendez, 514 F.3d 1035, 1046 (10th Cir.2008) (“That a piece of evidence may become ‘relevant to later criminal prosecution’ does not automatically place it within the ambit of ‘testimonial.’ ... [Otherwise,] any piece of evidence...