State v. Speerschneider

• Court: Arizona Court of Appeals
• Writing for the Court: OGG
• Citation: State v. Speerschneider, 543 P.2d 461, 25 Ariz.App. 340 (Ariz. App. 1975)
• Decision Date: 09 December 1975
• Docket Number: No. 1,CA-CR,1
• Parties: The STATE of Arizona, Appellee, v. Lyle John SPEERSCHNEIDER, Appellant. 722.

Page 461

543 P.2d 461

25 Ariz.App. 340

The STATE of Arizona, Appellee, v. Lyle John SPEERSCHNEIDER, Appellant.

No. 1 CA-CR 722.

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

Dec. 9, 1975.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, Cleon M. Duke, Asst. Attys. Gen., Phoenix, for appellee.

Derickson & Kemper by James Hamilton Kemper, Phoenix, for appellant.

OPINION

OGG, Presiding Judge.

Appellant was convicted by a jury of possession of marijuana for sale. The trial court subsequently entered judgment on the verdict. The imposition of sentence was suspended for five years, and the appellant was placed on probation for that period of time. Appellant appeals from the judgment of guilt. He argues on appeal that:

1. The court committed reversible error in admitting hearsay testimony under the co-conspirator exception to the hearsay rule;

2. The admission of an unavailable, co-conspirator's declaration under the co-conspirator exception to the hearsay rule denied appellant his constitutional right to confront the witnesses against him.

The defendant/appellant, Lyle John Speerschneider, argues that the admission of certain testimony, over the objection that it constituted hearsay, was error. The questions giving rise to the objection were:

'Q. And did you see Joel at that time and location?

A. Yes, I did.

Q. And did he say anything to you?

A. He indicated at this time that he did not have the pound sample and did not have the marijuana. He said that his connection at this time was expecting around five hundred pounds of marijuana to be delivered at this time. He also gave me the name and address of his connection.

Q. What was that name?'

(After the court overruled the objection of defense counsel the witness was allowed to answer.)

'A. This Joel said his connection's name was John.'

* * *

'Q. And did you speak with anyone at that time?

A. Yes, I did. I spoke with Joel.

Q. And what, if anything, did he say then?

A. He advised me again that the marijuana was not in yet and that he was going over that evening to his connection's house to spend the night and he would know more on the following morning, which would be the 15th of January, and gave me a phone number to call.

Q. What did he say was the number of his connection's house?'

(After the court overruled the objection of defense counsel, the following question and answer were given:)

'Q. What was the number?

'A. 266--1101.'

Defendant argues that both of the foregoing questions clearly called for hearsay since they required the officer to testify to statements made to him by the declarant. He argues that the co-conspirator exception to the hearsay rule was not applicable because there was no independent evidence to establish a conspiracy.

A review of the record discloses that the following evidence was developed at defendant's trial.

On the morning of December 13, 1974, Officer Blake purchased marijuana from the occupant of a residence immediately behind the alleged co-conspirator's residence. When Officer Blake informed the occupant of his desire to purchase greater quantities of marijuana the occupant asked him to wait while she went to Yensen's residence. A short time later Yensen, the alleged co-conspirator and declarant, arrived and discussed the possibility of selling over one hundred pounds of marijuana to Officer Blake. He stated that he did not presently have that amount, but that he could obtain as much as Officer Blake wanted.

Subsequent to the initial contact with Yensen on December 13, Officer Blake had numerous conversations with him regarding the expected arrival of the marijuana. Yensen continued to encourage Officer Blake by representations and promises of expected deliveries. During a phone conversation with Yensen on December 17, Officer Blake was told that the marijuana earmarked for Officer Blake had been sold over the weekend. Officer Blake was also told to call later in the evening because Yensen was in the middle of closing two more deals at the time. When he called later that evening, he was told that a shipment was coming in the next day and to meet Yensen at a particular bowling alley in order to purchase a one-pound sample.

Officer Blake met Yensen at the bowling alley on December 18, but was told to proceed to Yensen's home rather than make a deal in the parking lot. After they had arrived at the house, Yensen went into another room and conversed with an unseen, unidentified male. Returning to the room occupied by Officer Blake and another officer, Yensen told them the shipment was in and they could make the deal that day. They agreed that the deal should be made at a motel room, which was to be obtained by Officer Blake.

When Yensen was late in arriving at the motel, Officer Blake called a telephone number given him by Yensen, which defendant admitted was his phone number. When the phone was answered, Officer Blake said 'John?' The voice on the other end said 'Yeah. Is this Lee?' (This was the name used by Officer Blake.) Certainly, it can be inferred that the person was familiar with the Officer's pending business with Yensen since the phone call was in close proximity to the time the deal was supposed to go through. John told Officer Blake that Yensen had left shortly before and he would be there with the marijuana at any time. Seven to ten minutes later Yensen arrived. Yensen then made a phone call, part of which was overheard by Officer Blake. In that part Yensen was heard to say 'Everything is cool. I got the eight thousand. Bring the rest of the stuff down.' John then arrived at the motel and helped carry the rest of the marijuana into the room. In a conversation with one of the officers, who mentioned that the weights written on the packages were pretty close to the actual weights, defendant stated 'Yeah, they should be, we weighed them on a . . .' (some type of weighing device; the officer couldn't remember the exact word used). The defendant himself admitted that his phone number was the one called by Officer Blake on December 18 and he was the only 'John' who lived at that address. A notebook found on the defendant contained notations such as: 'Monday, Joel, three pounds, $75 paid;' 'Tuesday, Tom, three pounds,' and below that, 'Joel 25 and Phil 15.' The notebook also contained the address of the motel where the deal was made.

It is beyond dispute that before extrajudicial statements of an alleged co-conspirator can be admitted into evidence against another as an exception to the hearsay rule, the existence of the conspiracy must be established prima facie. Territory v. Turner, 4 Ariz. 290, 37 P. 368 (1894); State v. Cassady, 67 Ariz. 48, 190 P.2d 501 (1948); State v. Thompson, 273 Minn. 1, 139 N.W.2d 490 (1966) cert. den. 385 U.S. 817, 87 S.Ct. 39, 17 L.Ed.2d 56 (1967). As stated by the Court in State v. Thompson, supra:

'The term 'prima facie' in this context is rather a nebulous one that defies exact definition. It can probably be defined only in terms of sufficient evidence to permit the trial court reasonably to infer that there existed a conspiracy.' 139 N.W.2d at 503.

While proof of the existence of a conspiracy ordinarily should precede proof of the declarations of the co-conspirators, wide latitude is given the trial courts in determining the order of proof. State v. Cassady, supra; State v. Webb, 19 Ariz.App. 73, 504 P.2d 1296 (1973); State v. Thompson, supra.

We think that a review of the complete record leads to the conclusion that the trial court could reasonably have inferred that there had been a prima facie showing of a conspiracy. The evidence, together with all reasonable inferences which might be drawn therefrom, constituted sufficient foundational proof of a conspiracy to permit the introduction of statements made by the declarant Yensen to Officer Blake. We agree with the statement in State v. Thompson, supra, where the Court, faced with a similar question, said:

'Where an examination of the record as a whole shows facts from which the trial court could reasonably infer the existence of a conspiracy, the case ought not to be reversed because proof of the conspiracy came at the wrong time.' 139 N.W.2d at 503.

Having thus determined that the evidence was properly admitted as an exception to the hearsay rule, we next address appellant's claim that such admission violated his constitutional right to confront the witness against him, i.e., the declarant Yensen. Yensen, when examined in chambers prior to being called to the stand, invoked the privilege against self-incrimination. Consequently, he was not called as a witness.

While the Confrontation Clause guarantees a defendant the right to confront witnesses against him, the Supreme Court has concluded that the admission of hearsay does not necessarily violate the Sixth Amendment right to confrontation. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). The Sixth Amendment right to confrontation is made applicable to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

When hearsay evidence is admitted under recognized exceptions, the Confrontation Clause interest in 'bringing out the truth' may be satisfied without cross-examination because certain underlying rationales are thought to assure reliability. Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis. 85 Harvard Law Review 1378 at 1382 (1972). It has been noted that while numerous exceptions to the hearsay rule, such as spontaneous or excited utterances, learned treatises and declarations against interest, rest on a theory that the excepted hearsay by its very nature 'contains special guarantees of reliability lacking in hearsay generally, the co-conspirator exception has usually been supported by a variety of theories unrelated to the trustworthiness of the evidence itself.' Davenport, id at 1384. These theories...