State v. McCurdy

• Decision Date: 24 October 2007
• Docket Number: No. 2 CA-CR 2006-0049.,2 CA-CR 2006-0049.
• Citation: 169 P.3d 931,216 Ariz. 567
• Parties: The STATE of Arizona, Appellee, v. Thomas Greg McCURDY, Appellant.
• Court: Arizona Court of Appeals

169 P.3d 931

216 Ariz. 567

The STATE of Arizona, Appellee, v. Thomas Greg McCURDY, Appellant.

No. 2 CA-CR 2006-0049.

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

October 24, 2007.

Terry Goddard, Arizona Attorney General by Randall M. Howe and Alan L. Amann, Tucson, Attorneys for Appellee.

Robert J. Hooker, Pima County Public Defender by Scott A. Martin, Tucson, Attorneys for Appellant.

OPINION

ESPINOSA, Judge.

¶ 1 Appellant Thomas McCurdy was convicted after a jury trial of robbery and prohibited possession of a weapon. The court sentenced him to an aggravated prison term of six years for robbery, to be served concurrently with a presumptive, 4.5-year term for prohibited possession. He argues the trial court erred when it: (1) admitted hearsay evidence, (2) denied his motion for judgment of acquittal that claimed there was insufficient evidence he had a prior felony conviction, (3) used a foreign conviction that was invalid for use in Arizona to enhance his sentence, (4) based his sentence on improper aggravating circumstances, and (5) refused to correct the presentence report. We affirm his convictions but remand the case for resentencing in light of the trial court's failure to determine whether the foreign conviction properly could be used to enhance his sentence and its reliance on an improper aggravating circumstance in pronouncing sentence.

Factual and Procedural Background

¶ 2 We state the evidence in the light most favorable to sustaining the convictions. See State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App.2007). In February 2005, a man approached a bank teller wearing a gray-blue, wool "ski cap and large sunglasses and a coat." The man started to hand the teller a note across the counter, on which the teller could read the word "rob" or "robbery." As the teller reached for the note, the man retrieved it and said, "Put all the money on the counter, and I don't want no dye."¹

¶ 3 The teller activated a silent alarm, which alerted security staff and started cameras recording his station. He then gave the man all the money in his cash drawer, about $1,300, including several "bait bills" and a security tracking device. After the man left the bank, law enforcement officers eventually traced the tracking device to a white minivan belonging to McCurdy. Inside the van, officers found clothing similar to what the robber was described as wearing, a tan vest with a bundle of money and the tracking device inside, a silver revolver, and a hat. Witnesses recalled McCurdy's driving the van "kind of fast" to his motor home shortly after the robbery.

¶ 4 At trial, to prove McCurdy had a prior felony conviction both as an element of the prohibited possessor charge and for sentence enhancement and aggravation, the state produced a certified copy of documents related to a 1997 California felony conviction. After redacting the documents to omit prejudicial information about the details of the conviction, the trial court admitted them into evidence. The exhibit identified the California felon in question as Thomas Greg McCurdy with a date of birth of September 12, 1958. It also included the felon's driver's license number and a signature of the felon appearing to read "T.G. McCurdy" together with a Louisiana address. The California documents do not contain a photograph, fingerprint, or even a physical description of the felon.

¶ 5 Former jail supervisor Sean Stewart testified — based on a standard form jail admission document and having viewed a video of McCurdy's booking process — that McCurdy had arrived at the Pima County jail on April 15, 2005, reporting his birth date as September 12, 1958, and his weight as 195 pounds. Over McCurdy's hearsay objections, the trial court also admitted a Pima County jail "Inmate Personal Property Receipt" for a Thomas McCurdy dated the same date. This receipt bears a signature that appears similar to the signature of the felon convicted in California, although likewise contains no photograph, physical description, or fingerprint connecting it to McCurdy. The jury found the existence of the prior conviction had been proven beyond a reasonable doubt and found McCurdy guilty of prohibited possession and robbery. The trial court adopted the jury's finding that McCurdy had a prior conviction and used that conviction to both enhance and aggravate McCurdy's robbery sentence.

Hearsay Objections

¶ 6 McCurdy first contends the trial court erred by admitting the Pima County jail property receipt and allowing Stewart to testify to the information contained on the Pima County jail admission form over his hearsay objections.² "We review a trial court's ruling on the admissibility of evidence for a clear abuse of discretion." State v. King, 213 Ariz. 632, ¶ 7, 146 P.3d 1274, 1277 (App.2006).

¶ 7 Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ariz. R. Evid. 801(c), To be admissible, a court must find that the out-of-court statement fits within one of the many exceptions to the rule against hearsay. State v. Tucker, 205 Ariz. 157, ¶ 41, 68 P.3d 110, 118 (2003). Whether business records are sufficiently reliable to satisfy the hearsay exception in Rule 803(6), Ariz. R. Evid., is for the trial court to determine in the exercise of its sound discretion. Larsen v. Decker, 196 Ariz. 239, ¶ 19, 995 P.2d 281, 285 (App.2000); State v. Petzoldt, 172 Ariz. 272, 275, 836 P.2d 982, 985 (App.1991).

¶ 8 McCurdy argues the property receipt, and the information from the jail admission form as relayed by Stewart, were inadmissible hearsay. At trial, McCurdy objected to both documents on hearsay grounds, and the judge deferred ruling until after he heard Stewart's testimony to determine whether appropriate foundation had been provided. When Stewart testified, McCurdy again objected, claiming Stewart could not lay the necessary foundation for the information he repeated. The trial court eventually admitted the property receipt as a business record, but sustained the objection to the jail admission form on the ground that it was "a current jail card" and, thus, unduly prejudicial under Rule 403, Ariz. R. Evid., Stewart's testimony reciting the contents of the form was not stricken, however. The next day, McCurdy re-urged his objection to the property receipt, claiming Stewart was neither the custodian of records nor a "qualified witness" as required by the rule. The court disagreed, finding Stewart was qualified for purposes of the rule, and also clarified that the jail admission form had been excluded on the ground that it was unduly prejudicial.

¶ 9 Rule 803(6) requires either the custodian of records or "other qualified witness" testify that the record was made 1) contemporaneously, or nearly so, with the underlying event; 2) "by, or from information transmitted by, a person with first hand knowledge acquired in the course of a regularly conducted business activity"; 3) completely in the course of that activity; and 4) as a regular practice for that activity. Portions of the business record that "indicate a lack of trustworthiness" or "lack an appropriate foundation" shall not be admitted. Ariz. R. Evid. 803(6), Stewart testified he was "a supervisor of the security services section" of the Pima County jail, had supervised intake of new inmates at the jail for "maybe a year" during the "eight or nine years" he had been a sergeant, and had actually worked as an "ID tech" for two to three years. He also testified the process for booking inmates was the same, although occurring in a different location, as when he had been supervising intake. He described the process in some detail, including the fact that inmate information was recorded by a jail employee as it was received from the inmate being booked. Finally, Stewart testified he was familiar with arrangements for storing inmate property receipts at the jail, although he had not supervised that process, and such receipts were routinely created as part of the normal course of business at the jail.

¶ 10 Based on this record, we cannot say the trial court abused its discretion in finding Stewart a qualified witness with respect to the jail records. See Larsen, 196 Ariz. 239, ¶ 19, 995 P.2d at 285; Petzoldt, 172 Ariz. at 275, 836 P.2d at 985. Accordingly, we conclude the trial court did not abuse its discretion in admitting the receipt and statements that he read from the jail admission form under Rule 803(6). See Tucker, 205 Ariz. 157, ¶ 41, 68 P.3d at 118; King, 213 Ariz. 632, ¶ 7, 146 P.3d at 1277.

¶ 11 McCurdy also argues the inmate statements contained within the jail records are hearsay within hearsay that does not fall within the exception for business records under Rule 803(6). He relies on State v. McGann, 132 Ariz. 296, 298 n. 1, 645 P.2d 811, 813 n. 1 (1982), in which our supreme court found customer statements contained in the records of a business unreliable, and thus inadmissible, hearsay. However, we find a different case more analogous to the situation here. In State v. Morales, 170 Ariz. 360, 363-64, 824 P.2d 756, 759-60 (App.1991), the defendant argued his name, contained in medical records, was inadmissible hearsay because the records were offered to prove that he was the same person involved in an accident and treated for injuries, but there was no indication in those records how the hospital had learned the accident victim's name. This court found "[t]he linking of the trauma code name to the patient's true identity is clearly part of the `regular practice of [the hospital's] business activity'" and "[i]t is very much in [the hospital's] interest to make certain that linkage is accurate, unlike the [business] in McGann." Id. at 364, 824 P.2d at 760, quoting Ariz. R. Evid. 803(6)(d), Here, the source of the inmate's identifying information was the inmate himself.³ Moreover, like...