State v. Anaya

• Court: Arizona Court of Appeals
• Writing for the Court: TAYLOR; BROOKS, P.J., and FIDEL
• Citation: State v. Anaya, 165 Ariz. 535, 799 P.2d 876 (Ariz. App. 1990)
• Decision Date: 28 June 1990
• Docket Number: CA-CR,No. 1,1
• Parties: STATE of Arizona, Appellee, v. Freddie Arthur ANAYA, Appellant. 88-1274.

Page 876

799 P.2d 876

165 Ariz. 535

STATE of Arizona, Appellee, v. Freddie Arthur ANAYA, Appellant.

No. 1 CA-CR 88-1274.

Court of Appeals of Arizona Division 1, Department D.

June 28, 1990.

Review Denied Nov. 14, 1990.

[165 Ariz. 536] Robert K. Corbin, Atty. Gen. by Jessica G. Funkhouser, Chief Counsel, Criminal Div., and Gerald R. Grant, Asst. Atty. Gen., Phoenix, for appellee.

Gilcrease & Martin by James C. Martin, Tempe, for appellant.

OPINION

TAYLOR, Judge.

Appellant Freddie Arthur Anaya ("defendant") was charged by information with two counts of aggravated assault in violation of A.R.S. § 13-1204, and one count of reckless endangerment in violation of A.R.S. § 13-1201. Subsequently, the prosecution alleged that the offenses were of a dangerous nature. The jury found defendant guilty of all charges. Defendant was sentenced to a mitigated sentence of one and one-half years on the endangerment charge and a mitigated term of five years on each assault charge, with all sentences to run concurrently. Defendant filed a timely notice of appeal of the judgments of conviction and sentences. We affirm.

FACTS

The facts taken in the light most favorable to sustaining the verdict are as follows. On July 2, 1987, the defendant was drinking beer with a friend in the afternoon and evening. Later that evening he was involved in a fight with another patron at a Flagstaff bar and ejected. He returned home about 11:00 P.M., obtained a hunting rifle, and commented to his wife that he was going to kill someone or get killed. Defendant then left the house with the rifle and drove away. Between 11:30 P.M. and midnight, he returned home and fired his rifle twice while in the front yard, then entered his home intending to obtain a second rifle. When his wife told him that she had hidden that rifle, he angrily threatened to shoot her, then struck her twice in the shoulder and back with his rifle. As Mrs. Anaya walked ahead of him to the garage to retrieve the other rifle, he fired a third shot outside in the yard. While the defendant recovered the hidden rifle, Mrs. Anaya fled the scene by auto around midnight to summon help, leaving the couple's two small children asleep in the house.

Mrs. Anaya drove about one and one-half miles to a local fastfood restaurant where her daughter was working to warn her not to return home. She then called the police emergency number from the restaurant at 12:13 A.M. to report the situation at her home and to request help. Within a minute of receiving the police dispatcher's notification, Sergeant Blair of the Flagstaff Police Department arrived at the restaurant, and Mrs. Anaya rushed out to meet him. Sergeant Blair then drove Mrs. Anaya back to her home while she recounted the prior events and expressed fear for the safety of her children and husband. Police officers encircled the defendant's home, and by the use of a neighbor's phone initiated direct contact with him at about 12:25 A.M. Defendant refused requests to leave the house without his weapons to talk with the officers, and a confrontational standoff developed. The defendant let one of his children out of the house shortly after 1:30 A.M. to join Mrs. Anaya, but convinced the other to remain inside with him.

During the nightlong standoff the defendant verbally threatened the police officers with deadly harm, including telling police negotiator Sergeant Vesely that he had his cross hairs right between Vesely's eyes and could "take him out." About 4:20 or 4:30 A.M. that morning, Mrs. Anaya was interviewed by police Corporal Manson and again related the events preceding her midnight call to the police. She also revealed a large red, swollen mark on her shoulder which she attributed to the blow from defendant's rifle. Later that morning, a friend of the defendant convinced him to surrender his weapons, and around 8:30 A.M. the defendant allowed police officers to peacefully enter the house. Charges were thereafter filed, and the matter proceeded to trial approximately one year later. Defendant did not testify at trial.

On appeal, defendant raises the following issues:

(1) Did the trial judge err in admitting hearsay testimony?

(2) Was defendant denied his right to confront the witnesses against him?

(3) Was the information in this case defective?

(4) Did the state fail to prove all the elements of endangerment?

HEARSAY TESTIMONY

At trial, the prosecution's first witness was Sherry Anaya, the defendant's wife. Mrs. Anaya proved to be a difficult witness. She gave unresponsive answers to the prosecutor's preliminary questions. When asked if she would answer his questions, she replied that she did not want her husband to go to prison. At this point, the court recessed to advise Mrs. Anaya that she must testify truthfully. Mrs. Anaya tried to assert a marital privilege, but the trial judge explained it did not apply. The judge also advised Mrs. Anaya that if she failed to recall something, she could testify that she didn't remember, but she must respond to the questions.

When trial resumed, Mrs. Anaya denied any recall of the events of July 2 and 3. When the prosecutor attempted to refresh her memory from a police report compiled in part from her two accounts to the police the night of the standoff, she continued to deny any recollection of conversations with Sergeant Blair or Corporal Manson. The state then sought to admit into evidence the report reciting her accounts to the police that night. Defense counsel objected on hearsay grounds but was overruled, and the report was admitted under two exceptions to the hearsay rule. The first was the catchall exception under Rule 804(b)(5), Arizona Rules of Evidence, 17A A.R.S. The court specifically found that Mrs. Anaya's asserted loss of recall was deceptive and declared her unavailable as a witness under Rule 804(a)(2) (refusal to testify). The second ground was the excited utterance exception under Rule 803(2). Police testimony of her statements was also admitted.

Defendant asserts for the first time on appeal that the trial court erred in characterizing and admitting Mrs. Anaya's statements as hearsay. Defendant urges that her statements were not hearsay but prior inconsistent statements under Rule 801(d)(1)(A), and therefore inadmissible for substantive purposes under State v. Cruz, 128 Ariz. 538, 627 P.2d 689 (1981), and State v. Allred, 134 Ariz. 274, 655 P.2d 1326 (1982).

For purposes of Rule 801(d)(1)(A), Arizona law draws a distinction between a true and a feigned loss of recall. Where the asserted loss is genuine, the prior statement is deemed not inconsistent under this rule, but if the loss is mere fakery, the statement falls within the rule. State v. Just, 138 Ariz. 534, 544, 675 P.2d 1353, 1363 (App.1983), rev. den. (1984). In this case, the trial judge specifically found the witness to be deceitful in asserting loss of memory. However, the trial court had no need to reach a Cruz/ Allred analysis under a prior inconsistent statement theory because it found the statements made by Mrs. Anaya to be reliable and admissible under the catchall exception to the hearsay rule, as well as excited utterances.

Although counsel has submitted considerable argument on the admissibility of Mrs. Anaya's statements under Cruz and Allred, we need not consider that issue because the police report of her statements was actually admitted by the trial court only under the hearsay exceptions. Furthermore, since we find the excited utterance exception by itself to be proper and sufficient grounds for admission, we need not address the issue of admissibility under the Rule 804(b)(5) catchall exception. See State v. Whitney, 159 Ariz. 476, 482-83, 768 P.2d 638, 644-45 (1989).

To properly admit an excited utterance under Rule 803(2), three factual requirements must be met: (1) there must have been a startling event; (2) the statement must relate to the startling event; and (3) the statement must be made spontaneously, that is, soon enough after the event so as not to give the declarant time to fabricate. E.g., State v. Jeffers, 135 Ariz. 404, 419, 661 P.2d 1105, 1120, cert. denied, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983). Absent a clear abuse of discretion, an appellate court will not reverse a trial court ruling under this exception. Id.; State v. Carr, 154 Ariz. 468, 470, 743 P.2d 1386, 1388 (1987). We find in the record sufficient facts to satisfy these requirements for admission of the statements. Mrs. Anaya's accounts to the police described unquestionably startling events: her intoxicated, angry husband brandishing high-powered rifles at home late at night with two children ages eight and ten years present; announcing that "I will get killed or kill somebody"; actually firing three shots outside their house; pointing a rifle at her upper body and threatening "I'm going to blow a hole in you"; and striking her twice with the butt of a rifle.

These events occurred between 11:00 P.M. and midnight. Between about 12:15 A.M. and 12:25 A.M., Mrs. Anaya related the incidents to Sergeant Blair as they drove to the Anaya residence in his police vehicle. This first statement to the police clearly related to the startling events as did the second statement to Corporal Manson about four hours later.

We find that both statements could be made spontaneously before Mrs. Anaya had time to reflect and fabricate. The spontaneity of a statement is determined from the totality of the circumstances. See, e.g., State v. Barnes, 124 Ariz. 586, 589-90, 606 P.2d 802, 805-06 (1980). Among the elements usually examined are the time factor between the event and statement, the physical and emotional condition of the declarant, and the nature of the offense. See State v. Rivera, 139 Ariz. 409, 411-12, 678 P.2d 1373, 1375-76 (1984).

Since before statehood our supreme court has consistently found the physical and emotional condition of the declarant at the time of the statement to affect...