State v. Bronson

• Decision Date: 25 February 2003
• Docket Number: No. 1 CA-CR 02-0186.,1 CA-CR 02-0186.
• Citation: 63 P.3d 1058,204 Ariz. 321
• Parties: STATE of Arizona, Appellee, v. Jesse Ray BRONSON, Appellant.
• Court: Arizona Court of Appeals

63 P.3d 1058

204 Ariz. 321

STATE of Arizona, Appellee, v. Jesse Ray BRONSON, Appellant.

No. -0186.

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

February 25, 2003.

Terry Goddard, Attorney General, By Randall M. Howe, Chief Counsel, Criminal Appeals Section, and Diane Leigh Hunt, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender, By Christopher V. Johns, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

SNOW, Judge.

¶ 1 Jesse Ray Bronson appeals his conviction and sentence for burglary. For the following reasons, we reverse his conviction and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2 On the evening of June 5, 2001, Bronson entered a Mervyn's department store, spent a few minutes inside, and then exited the store. Bronson re-entered the store a few minutes later with his friend, Eric Thomas, and spent time browsing at the jewelry counter before leaving the store again.

¶ 3 After another few minutes had passed, Bronson and Thomas again re-entered the store, returned to the jewelry counter, and Bronson put a woman's diamond ring on hold under the name "Johnson."¹ Both men again left the store. A short time later, the two men again entered the store and returned to the jewelry counter where another sales clerk was closing one of the registers and collecting the cash and credit card receipts in Mervyn's bank deposit bags.

¶ 4 Thomas walked behind the counter, pulled a sawed-off shotgun from under his clothing and pointed it at the clerk, threatening to kill her unless she gave him the money she was removing from the registers. During the robbery, Bronson did not speak or personally physically threaten the clerk. Thomas took the bank deposit bags, and he and Bronson left the store.

¶ 5 Bronson and Thomas left the scene in Bronson's vehicle, and were then involved in an accident that left Bronson's vehicle disabled in front of a residence near the scene of the accident. Bronson asked the homeowner to call both the police and a friend to pick them up, but Bronson and Thomas left the scene to find a pay phone when the homeowner was unable to reach the friend and the police had not yet arrived.

¶ 6 When the police did arrive, Bronson and Thomas had not returned. Assuming the vehicle was abandoned, a police officer and a crime scene technician looked inside for identifying information and found three empty Mervyn's bank deposit bags and three firearms, including a sawed-off shotgun.

¶ 7 Bronson was located and arrested a week later, and charged with armed robbery, burglary, and misconduct involving weapons. Both the armed robbery charge and the burglary charge were alleged to be dangerous crimes.

¶ 8 At his jury trial, Bronson's main defense was "mere presence," arguing that while he had entered Mervyn's to use the restroom, he had not known beforehand that Thomas planned to rob the store. The State called Thomas (still awaiting a formal sentencing hearing pursuant to a plea agreement) as a witness, but he refused to testify on the advice of his counsel.² The State then moved to introduce a redacted transcript of Thomas's pretrial interview with Bronson's counsel, contending that the transcript was admissible as a hearsay exception under either Arizona Rule of Evidence 804(b)(3) or Rule 804(b)(5) because Thomas was "unavailable."³ The State argued that because defense counsel had conducted the interview, "[h]e had ample opportunity to ask any questions he might have wanted to ask on cross-examination."

¶ 9 Bronson objected to the transcript's admission, arguing that the statements should not be admitted under Rule 804(b)(3) or Rule 804(b)(5), that Thomas had attempted throughout the interview to shift guilt to Bronson, and that admission of the transcript violated his right to confrontation under the United States Constitution.

¶ 10 The trial court found Thomas to be unavailable and admitted the transcript as a statement against penal interest under Rule 804(b)(3) and as admissible hearsay under the residual exception in Rule 804(b)(5). The court allowed defense counsel to read a statement to the jury informing it that Thomas had entered a plea agreement, but refused to give defense counsel more time to review the transcript before it was read to the jury. Bronson was allowed to call Thomas's former girlfriend to rebut Thomas's statements in the transcript and the court admitted evidence of Thomas's prior felony conviction for theft.

¶ 11 At the close of evidence, the court dismissed the misconduct involving weapons charge, and allowed defense counsel to introduce a transcript of Thomas's change of plea hearing. The jury acquitted Bronson of the armed robbery charge, but found him guilty of burglary. The jury also found that the offense was dangerous.

¶ 12 The trial court subsequently sentenced Bronson to the presumptive seven and one half year prison term. Bronson timely appealed. We have jurisdiction pursuant to the Arizona Constitution, Article VI, Section 9 and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031 and 13-4033(A).

DISCUSSION

¶ 13 Bronson contends that admission of the transcript of Thomas's pretrial interview denied Bronson's right to confrontation under the Sixth Amendment to the United States Constitution. The State disagrees, arguing that admission of the transcript did not violate the Confrontation Clause, and alternatively, that any error was harmless.

¶ 14 We review a trial court's ruling on the admissibility of hearsay evidence for an abuse of discretion. State v. Valencia, 186 Ariz. 493, 498, 924 P.2d 497, 502 (App. 1996). However, Confrontation Clause violations are reviewed de novo. Lilly v. Virginia, 527 U.S. 116, 136-37, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999)

(When deciding if hearsay evidence violates the Confrontation Clause, "courts should independently review whether the government's proffered guarantees of trustworthiness satisfy the demands of the Clause.").

I. Confrontation Clause Violation

¶ 15 The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The Confrontation Clause "ensure[s] that testimony of an out-of-court declarant may be given only where it is invested with `particularized guarantees of trustworthiness.'" State v. Bass, 198 Ariz. 57 580, ¶ 35, 12 P.3d 796, 805 (2000) (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).

¶ 16 Like the hearsay rule, the Confrontation Clause operates to exclude out-of-court statements from admission at trial unless the statements fall within a firmly rooted hearsay exception. Bass, 198 Ariz. at 580, ¶ 36, 12 P.3d at 805; see also State v. Wood, 180 Ariz. 53, 64, 881 P.2d 1158, 1169 (1994)

. If the statements do not fall into a firmly rooted hearsay exception, "courts insist on particularized `indicia of reliability.'" Bass, 198 Ariz. at 580, ¶ 36, 12 P.3d at 805 (quoting Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)).

A. "Firmly Rooted" Hearsay Exceptions

¶ 17 Bronson relies on Lilly, 527 U.S. 116, 119 S.Ct. 1887, to argue that a statement against penal interest made by an accomplice is not a firmly rooted exception to the hearsay rule. The State contends that Lilly can be distinguished from the instant case. We disagree.

¶ 18 In Lilly, the defendant was involved in several robberies and a carjacking that resulted in the murder of the driver. Id. at 120, 119 S.Ct. 1887. The defendant's brother and the brother's roommate also participated in these crimes. After being taken into custody, each man was questioned separately. Lilly did not discuss the murder, but accused the other two men of forcing him to participate in the robberies. Lilly's brother and the brother's roommate gave different accounts of the crimes, but both told police that Lilly had committed the murder and "masterminded" the robberies. Id. at 121, 119 S.Ct. 1887.

¶ 19 At Lilly's trial, his brother invoked his Fifth Amendment right against self-incrimination and refused to testify. Id. Instead, the prosecution was allowed to introduce statements made by Lilly's brother to the police after his arrest. The court allowed the statements as declarations of an unavailable witness against penal interest and found that such a declaration against interest was sufficiently firmly rooted that the admission of the hearsay statements did not violate the Confrontation Clause. Id. Lilly was eventually convicted of nine charges, including capital murder.

¶ 20 On appeal, the Virginia Supreme Court affirmed Lilly's convictions and sentences, concluding that the defendant's brother's statements were properly admitted because they were "declarations of an unavailable witness against penal interest; that the statements' reliability was established by other evidence; and, therefore, that they fell within an exception to the Virginia hearsay rule." Id. at 122, 119 S.Ct. 1887. The court also held that a statement against penal interest did fall within a firmly rooted hearsay exception, and thus the statements did not violate the Confrontation Clause despite the questions as to the statement's credibility. Id. at 122-23, 119 S.Ct. 1887.

¶ 21 The Supreme Court granted certiorari and reversed the Virginia court's interpretation of the Confrontation Clause's requirements. The Court held that "a hearsay exception [is] firmly rooted if, in light of longstanding judicial and legislative experience, it rest[s][on] such [a] solid foundatio[n] that admission of virtually...