State v. Petzoldt
| Decision Date | 31 December 1991 |
| Docket Number | Nos. 2,CA-CR,s. 2 |
| Citation | 836 P.2d 982,172 Ariz. 272 |
| Parties | The STATE of Arizona, Appellee, v. Rudolph Noel PETZOLDT, Appellant. 90-0735, 2 90-0736. |
| Court | Arizona Court of Appeals |
Appellant Rudolph Petzoldt was convicted by a jury of seven charges: one count of illegally conducting an enterprise; five counts of possession of marijuana for sale; and one count of conspiracy. Some of his sentences are concurrent and some consecutive. He was sentenced to a maximum total of ten years' imprisonment. We affirm.
The facts, viewed in a light most favorable to sustaining the verdict, State v Zmich, 160 Ariz. 108, 770 P.2d 776 (1989), are as follows. Guillermo Soto-Leal had studied accounting for two years. In the summer of 1983, Soto-Leal was hired by Jaime Figueroa-Soto. Figueroa-Soto was in the marijuana business and had problems because the records of amounts of marijuana arriving in Tucson did not agree with the records of the amounts shipped from Nogales. Figueroa-Soto sent Soto-Leal to Tucson to keep accurate records.
People in Figueroa-Soto's business were referred to only by first names or nicknames. When Soto-Leal arrived in Tucson he was introduced to "Don Chuy," the man in charge of Figueroa-Soto's Tucson operations. Don Chuy introduced Soto-Leal to other people who worked for Figueroa-Soto in Tucson, including Roberto, who was in charge of weighing the marijuana and keeping records. Soto-Leal familiarized himself with how the business functioned and then inventoried the marijuana. He collected the small notebooks that had been used by Don Chuy, Roberto, and others to record the amounts of marijuana received or delivered. Soto-Leal conferred with these record keepers in order to resolve discrepancies between the notebooks. He then transferred the information to larger notebooks, burning some of the small notebooks after he finished with them.
One of the larger notebooks is green and was designated Exhibit 18 at trial. This notebook contains entries for five sales to "Rudy" and these sales are also shown in Don Chuy's books. Soto-Leal gave the green notebook to Figueroa-Soto in October 1983. Figueroa-Soto was pleased with Soto-Leal's records. He met with various clients and had the green notebook in his possession. At one such meeting in October 1983 which Soto-Leal attended, Figueroa-Soto spoke with a client called Rudy. Don Chuy was also present at this meeting and Soto-Leal testified that Figueroa-Soto spoke with Rudy about the notations in the green notebook. These notations detailed amounts of marijuana received, money received, and money paid.
Other records showed that Rudy received shipments and made payments after the October 1983 meeting. Initially, Don Chuy had introduced Soto-Leal to various clients, including Rudy. Later, Soto-Leal made marijuana deliveries to both Rudy and Rudy's brother, Chuck. Rudy and Chuck lived in the same house. In addition, Soto-Leal testified that he would use the same phone number to reach Chuck as he would to reach Rudy.
On March 23, 1984, Soto-Leal was arrested at a house in Tucson. Tons of marijuana were seized from this house and the authorities found many records, including some of the notebooks which contain records of the marijuana business. Other notebooks were recovered at other stash houses which the police discovered.
Soto-Leal was convicted in federal court and received consecutive terms totaling 45 years. After serving several years, Soto-Leal became a cooperating witness and began to testify against the people in Figueroa-Soto's marijuana business. In return, Soto-Leal's sentences were reduced.
Rudolph Petzoldt was identified by Soto-Leal in a photo line-up as the Rudy that Soto-Leal had met while working for Figueroa-Soto. Soto-Leal also identified Petzoldt as Rudy at trial. Soto-Leal testified that there was no other client in Tucson with a name similar to Rudy.
Petzoldt argues that the trial court erred when it admitted the notebooks as business records. We do not agree.
We begin by recognizing that the notebooks are hearsay because they were offered to prove the truth of the matter asserted within them, that is, that there were marijuana transactions between Figueroa-Soto and Petzoldt. Ariz.R.Evid. 801, 17A A.R.S. But if the notebooks fall within an exception to the hearsay rule they are admissible. Rule 803(6) sets forth the business record exception to the hearsay rule:
Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if:
(d) pursuant to a regular practice of that business activity, and
(e) all the above are shown by the testimony of the custodian or other qualified witness.
However, such evidence shall not be admissible if the source of information or the method or circumstances of preparation indicate a lack of trustworthiness or to the extent that portions thereof lack an appropriate foundation.
The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
"The determination of whether, in all the circumstances, [business] records have sufficient reliability to warrant their receipt in evidence is left to the sound discretion of the trial judge." Saks International Inc. v. M/V "Export Champion," 817 F.2d 1011, 1013 (2nd Cir.1987). Petzoldt contends there is no evidence the scriveners had the requisite first-hand knowledge at the time the entries were made in the notebooks. We find no merit to this contention. There is ample testimony by Soto-Leal that records were entered contemporaneously by scriveners with first-hand knowledge. For example, he testified that entries of the amounts of marijuana were recorded at the time the marijuana was weighed. Soto-Leal also testified that payments were usually recorded by Don Chuy, who collected and counted the money. As for the information which Soto-Leal copied from one notebook into another, Rule 803(6) specifically allows data compilation if the information is either by or transmitted by someone with first-hand knowledge.
Petzoldt maintains that because different sizes of notebooks were used there was no regular practice. Rule 803(6) states the records may be in any form; it does not require physical uniformity of the records. Rule 803(6)(d) requires a regular practice. There was a great deal of evidence which showed that keeping records was a regular practice in Figueroa-Soto's business. The importance of this practice to Figueroa-Soto himself is shown by his employment of Soto-Leal to solve previous problems related to record-keeping.
Petzoldt also argues that Soto-Leal's testimony indicates a lack of trustworthiness. He claims that because Soto-Leal testified the writers were often tired and frequently had taken cocaine, the notebooks are unreliable. While exhaustion and use of cocaine might indicate a lack of trustworthiness in some situations, there is no persuasive evidence in this situation that those factors caused the records to be unreliable here. On the contrary, there was substantial evidence that the records were reliable. It was undisputed that Soto-Leal was brought to Tucson by Figueroa-Soto to correct the problems in record-keeping and that Soto-Leal had an accounting background. Soto-Leal testified that the practice had been for several people to keep overlapping records and that he conferred with Don Chuy and other workers to resolve discrepancies before producing the data compilation in the large notebook which he presented to Figueroa-Soto. Furthermore, the records were accepted as reliable by Figueroa-Soto and there is no evidence of any client ever complaining about the records' accuracy.
Petzoldt next contends that because all the writers of the notebooks before Soto-Leal's arrival have not been identified, the notebooks are unreliable. we disagree. "[T]here is no requirement that the person whose first-hand knowledge was the basis of the entry be identified, so long as it was the business entity's regular practice to get information from such a person." Saks, 817 F.2d at 1013 (2nd Cir.1987).
Petzoldt further argues that the notebooks contain hearsay statements themselves and the state must therefore show that the underlying statements are admissible under a hearsay exception as well. Petzoldt relies on State v. McGann, 132 Ariz. [172 Ariz. 276] 296, 645 P.2d 811 (1982). McGann is distinguishable, as it involved underlying hearsay which did not fit within the 803(6) exception because the statements were made by a customer of the business rather than a business employee. Here, there is no evidence that anyone other than Figueroa-Soto's employees made entries in the notebooks. When a regularly kept business record includes a further hearsay statement, if that hearsay statement is by a person acting in the routine of the business, the regularly kept records exception applies to the entire record and no further exception need be invoked. McCormick on Evidence, E. Cleary, § 324.3 (3rd ed. 1984). For this same reason we find without merit Petzoldt's argument that Rule 805 concerning hearsay within hearsay is applicable here. In conclusion, we find no abuse of the trial court's discretion in admitting the notebooks.
Petzoldt next argues that even if we find that the notebooks were properly admitted as business...
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