State v. King

• Decision Date: 20 April 2006
• Docket Number: No. 1 CA-CR 04-0269.,1 CA-CR 04-0269.
• Citation: 212 Ariz. 372,132 P.3d 311
• Parties: STATE of Arizona, Appellee, v. Corey Lamont KING, Appellant.
• Court: Arizona Court of Appeals

132 P.3d 311

212 Ariz. 372

STATE of Arizona, Appellee, v. Corey Lamont KING, Appellant.

No. 1 CA-CR 04-0269.

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

April 20, 2006.

Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender By Brent E. Graham, Phoenix, Attorneys for Appellant.

OPINION

GEMMILL, Judge.

¶ 1 Corey Lamont King appeals his convictions and sentences on two counts of cruelty to animals and one count of interfering with judicial proceedings. King argues that his Confrontation Clause rights under the United States Constitution were violated when the trial court admitted recorded statements to a 9-1-1 operator and statements made to a police officer during an initial investigation. Applying principles from the United States Supreme Court opinion in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), we conclude that King's convictions and sentences must be reversed and this matter remanded for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2 On March 2, 2003, T.S. made a 9-1-1 emergency call requesting that a police officer be dispatched to her home. When the 9-1-1 operator asked T.S. what was happening, she responded that she had a restraining order against a person who had just thrown two three-week-old puppies over her house. When the 9-1-1 operator asked where that person was, T.S. explained that he "just drove off" and that she didn't know where he was.

¶ 3 In further response to the 9-1-1 operator's questions, T.S. identified King by name, provided his date of birth, and described his clothes and his race. When asked questions regarding King's car, T.S. provided the model and color of the vehicle, stated that the windows were tinted, but said that she did not know the car's license plate number.

¶ 4 When the operator asked how long it had been since King left the house, T.S. responded, "He left maybe five minutes ago." When asked which direction he went and where King lived, T.S. stated that she did not know where King was staying or what direction he had gone, and she continued to express concern for the puppies.

¶ 5 Officer Perkins of the Phoenix Police Department was dispatched to T.S.'s home in response to the 9-1-1 call, arriving approximately five minutes later. Officer Perkins observed that T.S. was upset and had been crying. T.S. told the officer that earlier in the day she had received several phone calls from King on her cell phone while she was out running errands. She said she was afraid to return to her house alone in the event King was there, so she had called her brother to meet her at her house. T.S. said that her brother arrived at her house less than a minute after she arrived.

¶ 6 T.S. reported that when she arrived at her house, King's vehicle was parked in her driveway and King was in the garage with her pit bull and the dog's seven puppies. T.S. parked across the street and remained in her car while her brother talked to King. T.S. slightly cracked her window and began yelling at King that if he took the puppies, she was going to call the police. King told her to go ahead and call the police and proceeded to pick up two puppies, one white puppy and one brown puppy. T.S. told the officer that when she saw King picking up the puppies she pulled her car to the otherside of the street to block her driveway so that King could not back out. She saw King throw the white puppy over her house and then called 9-1-1. T.S. explained that when she looked back again at King, the brown puppy was also gone.¹

¶ 7 Upon investigation, Officer Perkins found a dead brown puppy in T.S.'s back yard. He went to a neighbor's yard and found a dead white puppy. Officer Perkins estimated that each of the puppies had been thrown a distance of approximately 60 to 70 feet.

¶ 8 Michael C., a 12-year-old neighbor, testified that he was playing in his backyard at the time and heard a loud thump. He looked up and saw a little white dog lying in his backyard. He testified that the puppy's eyes were slightly open when he first saw it on the ground.

¶ 9 King was charged with two counts of cruelty to animals, Class 6 felonies, and one count of interfering with judicial proceedings by knowingly disobeying or resisting a lawful order, process, or other mandate of the Phoenix Municipal Court, a Class 1 misdemeanor. He was convicted on all three counts. The trial court suspended his sentences and placed King on probation for one year for violating the order of protection and two years for each count of cruelty to animals. The court ordered that all three terms of probation would be served concurrently.

¶ 10 On appeal, King claims the trial court violated his Sixth Amendment right to confront witnesses by admitting the hearsay statements of T.S. who was unavailable for trial and not subject to cross-examination. Because this issue is dispositive, we do not reach King's other arguments on appeal.

¶ 11 T.S. did not appear and testify at King's trial. During a trial conference, the prosecutor recounted to the court the steps he had taken to locate T.S. and make her available for trial. The trial court found the State had made reasonable efforts to secure T.S.'s attendance at trial and that she was therefore "unavailable" under Arizona Rule of Evidence ("Rule") 804(a)(5). The trial court ruled that the 9-1-1 tape and T.S.'s statements to Officer Perkins made within a few minutes of the event were admissible under the Rule 803(1) and Rule 803(2) exceptions to the hearsay rule for present sense impressions and excited utterances. The court also found that under Rule 804(b)(5), the statements were reliable and probative, and the general purpose of the evidence rules and the interests of justice would be served by admission of the statements.²

¶ 12 Because T.S. was unavailable to testify at trial and not subject to cross-examination, King claims that admission of T.S.'s statements violated his Sixth Amendment Confrontation Clause rights described by the Supreme Court in Crawford. The Confrontation Clause provides 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. King specifically argues that T.S.'s statements are "testimonial" under Crawford, and as such, they are inadmissable because the defense never had an opportunity to cross-examine T.S. King also argues that erroneous admission of this evidence was not harmless because it constituted the "bulk of the evidence" against him.

DID KING WAIVE HIS CONFRONTATION CLAUSE OBJECTION?

¶ 13 The State first contends that this issue is waived on appeal because King failed to object below to admission of the evidence on Confrontation Clause grounds. The record, however, indicates King's attorney argued that T.S.'s hearsay statements were unreliable and that he was unable to cross-examine her or question her about them because "she's not here to explain it." He added that "it is certainly a lot easier for prosecutors to get convictions if their witness can't be cross-examined."

¶ 14 Because King objected on the basis of hearsay and also on the basis that he would not be able to cross-examine T.S., his objections were sufficient to avoid waiver of his Confrontation Clause argument. See Dias v. State, 95 Nev. 710, 601 P.2d 706, 709 (1979) ("When a hearsay objection is lodged. . . on the grounds that the declarant has not been made available at trial and, as a result, cannot be subjected to cross-examination, the policy of the confrontation clause is invoked equally with that of the hearsay rule."); see also Jones v. State, 31 Ark.App. 23, 786 S.W.2d 851, 852 (1990) ("In this instance appellant did make a timely objection on the basis that she would not be able to cross-examine [the declarant], who was not present at the hearing. We consider this objection adequate to raise the issue of the confrontation clause."); State v. Martinez, 122 N.M. 476, 927 P.2d 31, 35 (Ct.App.1996) (finding Confrontation Clause objection preserved even though counsel did not expressly mention it or the constitutional right to confront witnesses); Brooks v. State, 132 S.W.3d 702, 705 (Tex.Crim.App.2004) (concluding that appellant's objection, with its reference to the right to cross-examine the co-defendant, was sufficient to preserve Confrontation Clause issue for review).

WERE THE STATEMENTS TESTIMONIAL UNDER CRAWFORD?

¶ 15 The State next argues that T.S.'s out-of-court statements were "nontestimonial" and that the trial court properly ruled the statements admissible as excited utterances. According to the State, the admission of these statements did not violate the Confrontation Clause under the principles set forth in Crawford even though T.S. was not subject to cross-examination.

¶ 16 Although this court ordinarily applies an abuse of discretion standard when reviewing a trial court's rulings on the admissibility of evidence under exceptions to the hearsay rule, we conduct a de novo review of challenges to admissibility under the Confrontation Clause. State v. Bronson, 204 Ariz. 321, 324, ¶ 14, 63 P.3d 1058, 1061 (App. 2003).

¶ 17 In Crawford, the United States Supreme Court considered whether the use of an unavailable witness's tape-recorded statement to a police officer violated the Confrontation Clause. 541 U.S. at 38, 124 S.Ct. 1354. The Court analyzed the established rule of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), in which it held that an out-of-court statement of an unavailable witness is admissible if the statement bears "adequate indicia of reliability." Crawford, 541 U.S. at 42, 124 S.Ct. 1354. The Court noted that under Roberts, such indicia of reliability is satisfied when the evidence either "falls within a firmly rooted hearsay exception" or bears "particularized guarantees of...