State v. Alvarez

• Decision Date: 29 September 2006
• Docket Number: No. 2 CA-CR 2002-0084.,2 CA-CR 2002-0084.
• Citation: 213 Ariz. 467,143 P.3d 668
• Parties: The STATE of Arizona, Appellee, v. Israel Joaquin ALVAREZ, Appellant.
• Court: Arizona Court of Appeals

Page 668

143 P.3d 668

213 Ariz. 467

The STATE of Arizona, Appellee, v. Israel Joaquin ALVAREZ, Appellant.

No. 2 CA-CR 2002-0084.

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

September 29, 2006.

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 Seamon, Tucson, Attorneys for Appellant.

SUPPLEMENTAL OPINION

PELANDER, Chief Judge.

¶ 1 After a jury trial, appellant Israel Joaquin Alvarez was convicted of first-degree murder based on felony murder and aggravated robbery and was sentenced to concurrent prison terms of life and 6.5 years. In our prior opinion on his appeal, we affirmed those convictions and sentences. State v. Alvarez, 210 Ariz. 24, ¶¶ 1, 24, 107 P.3d 350, 352, 356 (App.2005). We concluded, inter alia, a statement the victim (S.) had made to Pima County Sheriff's Deputy Othic "was nontestimonial hearsay outside the scope of Crawford [v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)]" and, therefore, "[t]he trial court's admission of S.'s statement did not violate Alvarez's confrontation rights" under the Sixth Amendment to the United States Constitution. Alvarez, 210 Ariz. 24, ¶ 22, 107 P.3d at 356.

¶ 2 This case returns to us from our supreme court, which previously granted Alvarez's petition for review and, after holding oral argument, remanded the case to this court for reconsideration in light of Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). State v. Alvarez, No. CR-05-0104-PR, 2006 WL 2089243 (Ariz. July 10, 2006).¹ Having reconsidered this matter in light of Davis and having reviewed the parties' supplemental briefs filed after remand, we now vacate that portion of our prior opinion relating to the Confrontation Clause issue, 210 Ariz. 24, ¶¶ 18-22, 107 P.3d at 355-56, replace it with this supplemental opinion, and again affirm Alvarez's convictions and sentences.

I

¶ 3 We briefly review the facts bearing on the Confrontation Clause issue. In so doing, we view the evidence in the light most favorable to upholding the convictions, see State v. Greene, 192 Ariz. 431, ¶ 12, 967 P.2d 106, 111 (1998), and in the light most favorable to the proponent of the challenged evidence, here the state. See State v. Petzoldt, 172 Ariz. 272, 276, 836 P.2d 982, 986 (App.1991).

¶ 4 In the mid-afternoon of June 10, 2001, Deputy Othic was on routine patrol in "a low-traffic area," driving westbound on Irvington Road. As he approached Butts Road, Othic saw a man (the victim, S.) "staggering back and forth" in the northbound lane of Butts Road. Believing that S. might be intoxicated, Othic made a U-turn and then drove down Butts Road toward him. As Othic approached, he noticed that S. was "bleeding badly from the face." The blood covered "a majority of his face" and also was "all in his hair." Othic immediately requested medical assistance on his radio, and as he exited his patrol car, S. "collapsed on the back of [the car's] trunk."

¶ 5 Othic testified that during his approximate one-minute encounter with S., Othic "basically asked him two questions, his name and what happened." Because at first S. "wasn't responding" at all, Othic "kept asking him his name." S. eventually gave his first name and, when Othic asked him what had happened, S. stated three men had "jumped him" and had taken his 1995 white Suzuki.² According to Othic, S. "was in pain," "kept going in and out of consciousness," "kept asking for a doctor" and was "talking real low." S. then "lost consciousness" shortly before medical personnel arrived, and Othic had no further contact with him. S. died two days later. An autopsy revealed that his death was caused by multiple blunt force injuries to his head and brain damage.

II

¶ 6 The Confrontation Clause issue first arose in this case in September 2004, several months after Alvarez's appeal came at issue and after the United States Supreme Court issued its opinion in Crawford.³ At that time, Alvarez merely filed with this court a notice of supplemental authority, citing Crawford. In our first opinion, we addressed and rejected any Confrontation Clause argument on the merits, without discussing whether Alvarez had properly preserved that issue below. 210 Ariz. 24, ¶¶ 18-22, 107 P.3d at 355-56. As the state points out, however, at trial Alvarez objected to admission of Deputy Othic's testimony "regarding the victim's out-of-court statements solely on the evidentiary ground that it was `hearsay' and did not qualify as an `excited utterance.'" Neither at trial nor in his appellate briefs filed in this court did Alvarez raise any Sixth Amendment objection to admission of that evidence. See State v. Rankovich, 159 Ariz. 116, 122 n. 3, 765 P.2d 518, 524 n. 3 (1988) (failure to raise or argue claim in opening brief "constitutes abandonment and waiver of that issue"); cf. State v. King, 212 Ariz. 372, ¶ 14, 132 P.3d 311, 314 (App.2006) (defendant's objection below that "he would not be able to cross-examine" unavailable witness whose hearsay statements to 911 operator were admitted at trial "were sufficient to avoid waiver of his Confrontation Clause argument").

¶ 7 A "hearsay" objection does not preserve for appellate review a claim that admission of the evidence violated the Confrontation Clause. See State v. Hernandez, 170 Ariz. 301, 306-07, 823 P.2d 1309, 1314-15 (App.1991); see also State v. Huerstel, 206 Ariz. 93, ¶ 29, 75 P.3d 698, 707 (2003) (hearsay rule and Confrontation Clause are not the same and serve different purposes). By failing to object below on Sixth Amendment grounds, Alvarez "forfeit[ed] the right to obtain appellate relief unless [he] prove[s] that fundamental error occurred." State v. Martinez, 210 Ariz. 578, n. 2, 115 P.3d 618, 620 n. 2 (2005); see also State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005) ("Fundamental error review . . . applies when a defendant fails to object to alleged trial error."); State v. Holder, 155 Ariz. 83, 85, 745 P.2d 141, 143 (1987) (doctrine of waiver "applies to constitutional error"). Fundamental error is "`error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.'" Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984).

¶ 8 As the appellant, Alvarez bears "the burden of persuasion in fundamental error review" and "must first prove error." Id. ¶¶ 19, 23; see also State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991) ("Before we may engage in a fundamental error analysis, . . . we must first find that the trial court committed some error."). And, assuming any error is established, "[i]n order to obtain reversal based on unobjected-to trial error, a defendant must show `both that fundamental error exists and that the error in [his or her] case caused . . . prejudice.'" State v. Ruggiero, 211 Ariz. 262, ¶ 25, 120 P.3d 690, 696 (App.2005), quoting Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607 (alteration in Ruggiero); see also State v. Munninger, 213 Ariz. 393, ¶¶ 4, 10, 142 P.3d 701 (App.2006).

III

¶ 9 Applying those principles here, we begin our analysis by examining whether, in light of Davis, the trial court committed constitutional error in admitting Deputy Othic's testimony about what the victim had told him at the scene.⁴ Alvarez argues the victim's "statement about three persons attacking him and taking his car was testimonial in nature and was unduly prejudicial." According to Alvarez, Davis requires reversal and preclusion of that evidence. In contrast, the state argues no error occurred "because the victim's statements to Deputy Othic are clearly `nontestimonial' under Crawford and Davis." In addition, the state argues, any alleged error in the admission of that evidence was neither fundamental nor prejudicial. We agree with the state on all points.

¶ 10 In Crawford, the Supreme Court held the Sixth Amendment's Confrontation Clause bars "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." 541 U.S. at 53-54, 124 S.Ct. at 1355; see also Davis, ___ U.S. at ___, 126 S.Ct. at 2273. Although the Court in Crawford decided to "leave for another day any effort to spell out a comprehensive definition of `testimonial,'" 541 U.S. at 68, 124 S.Ct. at 1374, it described a "core class of `testimonial' statements" that included, inter alia, "`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 brief in case; see also State v. Parks, 211 Ariz. 19, ¶¶ 28, 50, 116 P.3d 631, 637, 642 (App.2005).

¶ 11 In Davis, the Supreme Court attempted to clarify the distinction between testimonial and nontestimonial statements for purposes of the Confrontation Clause. ___ U.S. ___, 126 S.Ct. at 2273. In reviewing the two companion cases before it, the Court concluded in one (Davis) that a domestic violence victim's "frantic," telephonic statements in response to a 911 emergency operator's questions were not testimonial and, therefore, not subject to the Confrontation Clause, id. at ___, 126 S.Ct. at 2277, whereas in the second case (Hammon) the Court characterized as testimonial a domestic battery victim's written statements in an affidavit given to a police officer during a post-incident, investigative interrogation. Id. at ___, 126 S.Ct. at 2277-78. In Davis, the Court observed, the victim "was speaking about events as they were actually happening, rather than `describ[ing] past events,'"...