State v. Taylor

• Decision Date: 19 October 1999
• Docket Number: No. 2 CA-CR 98-0451.,2 CA-CR 98-0451.
• Citation: 196 Ariz. 584,2 P.3d 674
• Parties: The STATE of Arizona, Appellee, v. Olin Gene TAYLOR, Appellant.
• Court: Arizona Court of Appeals

2 P.3d 674

196 Ariz. 584

The STATE of Arizona, Appellee, v. Olin Gene TAYLOR, Appellant.

No. -0451.

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

October 19, 1999.

Review Denied May 23, 2000.

Janet Napolitano, Arizona Attorney General By Paul J. McMurdie and R. Wayne Ford, Phoenix, for Appellee.

Susan A. Kettlewell, Pima County Public Defender By Frank P. Leto, Tucson, for Appellant.

OPINION

HOWARD, Judge.

¶ 1 After a jury trial, appellant Olin Gene Taylor was convicted of child molestation and sentenced to a partially aggravated twenty-year prison term. He contends that A.R.S. § 13-4252, a statutory hearsay exception concerning the admissibility of prior recorded statements by minors,¹ is unconstitutional and that the trial court also erred in admitting, as an excited utterance, a statement the victim made to her stepmother. We reverse and remand.

BACKGROUND

¶ 2 We view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the verdict. State v. Nihiser, 191 Ariz. 199, 953 P.2d 1252 (App. 1997). Late in the evening, the victim, an eight-year-old girl, was sleeping at her babysitter's house when her father took her to his friend's house, where he, appellant, and the friend had been drinking. The victim's father put her to bed in a bedroom in his friend's house and then he and the friend briefly left the house and went to the store. The victim woke up to find appellant rubbing her genitals, over her clothes, with his fingers and thumb. After the victim twice told him to stop, appellant said "I just want to play with [ ] you" and then left the room. When her father returned, the victim tried to tell him what happened, but he could not understand her because she was crying too hard. The victim, who was screaming, crying, and yelling after the incident, was still upset and crying when she returned home and told her stepmother that appellant had touched her "private part." Two days later, a police detective conducted a videotaped interview in which the victim described the incident. Appellant denied intentionally touching the victim and testified the victim had come out of the bedroom crying and he had picked her up and put her back to bed.

¶ 3 At trial, the court admitted the victim's statement to her stepmother, over appellant's objection, as an excited utterance. After the victim testified consistently with her statement to her stepmother and with her videotaped statement, the trial court, over appellant's objection, admitted the videotaped statement into evidence pursuant to § 13-4252.

VIDEOTAPED STATEMENT

A. Constitutionality of A.R.S. § 13-4252

¶ 4 Section 13-4252 makes a minor's videotaped pretrial statement admissible if certain requirements are met:²

A. The recording of an oral statement of a minor made before a proceeding begins is admissible into evidence if all of the following are true:

1. No attorney for either party was present when the statement was made.

2. The recording is both visual and aural and is recorded on film or videotape or by other electronic means.

3. Every voice on the recording is identified.

4. The person conducting the interview of the minor in the recording is present at the proceeding and available to testify or be cross-examined by either party.

5. The defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence.

6. The minor is available to testify.

7. The recording equipment was capable of making an accurate recording, the operator of the equipment was competent and the recording is accurate and has not been altered.

8. The statement was not made in response to questioning calculated to lead the minor to make a particular statement.

B. If the electronic recording of the oral statement of a minor is admitted into evidence under this section, either party may call the minor to testify and the opposing party may cross-examine the minor.

¶ 5 Appellant contends the trial court erred in admitting the victim's videotaped statement pursuant to § 13-4252, claiming the statute unconstitutionally infringes on the supreme court's power to make procedural rules and conflicts with the court's Rules of Evidence and Rules of Criminal Procedure regarding hearsay. Although appellant failed to raise this specific argument below, he did object on several constitutional and foundational grounds, including that the tape's admission violated his right to counsel and to confront accusers and was cumulative. In view of the state's failure to include the videotape in its Rule 15.1 disclosure³ and its untimely motion in limine to use the tape on the first day of trial, see Rule 803(24), Ariz. R. Evid., 17A A.R.S., we cannot fault appellant for not making more specific objections. Further, we will consider this argument because it raises an issue of public policy and statewide concern, State v. Junkin, 123 Ariz. 288, 599 P.2d 244 (App.1979), and because "substantial rights of a fundamental nature are involved which could have resulted in severe prejudice to the appellant." State v. Politte, 136 Ariz. 117, 664 P.2d 661 (App.1982). We review the constitutionality of a statute de novo, recognizing the strong presumption that it is valid. City of Tucson v. Rineer, 193 Ariz. 160, 971 P.2d 207 (App.1998).

¶ 6 "The Constitution ... divides the powers of government into three separate departments and directs that `no one of such departments shall exercise the powers properly belonging to either of the others.'" State ex rel. Napolitano v. Brown, 194 Ariz. 340, ¶ 6, 982 P.2d 815, ¶ 6 (1999), quoting Ariz. Const. art. III. The supreme court has the exclusive constitutional authority to "make rules relative to all procedural matters in any court." Ariz. Const. art. VI, § 5(5). See Brown; State v. Robinson, 153 Ariz. 191, 735 P.2d 801 (1987); State v. Blazak, 105 Ariz. 216, 462 P.2d 84 (1969). Although we will recognize statutory evidentiary rules that supplement the court's rules, the legislature cannot repeal the court's rules, and we "draw the line" when it enacts a statute that conflicts with or "tends to engulf a general rule of admissibility." State ex rel. Collins v. Seidel, 142 Ariz. 587, 591, 691 P.2d 678, 682 (1984). See also Brown; Robinson.

¶ 7 The supreme court has exercised its constitutional power by promulgating rules defining hearsay and governing the admissibility of out-of-court statements offered "to prove the truth of the matter asserted." Ariz. R. Evid. 801(c), 17A A.R.S. See Ariz. R. Evid. 801(d) (out-of-court statements which are "not hearsay" admissible); Ariz. R. Evid. 802 (hearsay not admissible); Ariz. R. Evid. 803 and 804 (hearsay exceptions); Ariz. R.Crim. P. 19.3, 17 A.R.S. (prior recorded testimony admissible). The court's "rulemaking authority and the function of the hearsay rules, taken together, severely limit the legislature's authority to manipulate the hearsay rules, particularly in criminal cases where confrontation rights are constitutionally protected." Robinson, 153 Ariz. at 197, 735 P.2d at 807. "The hearsay rules are at the core of the judicial function: defining what is reliable evidence and establishing judicial processes to test reliability." Id.

¶ 8 Section 13-4252 is constitutional only if it can be construed as being consistent with the court's rules. Robinson. In some respects, the statute is more restrictive than the court's rules. First, although certain out-of-court statements are admissible under the court's rules if the declarant is unavailable, see Rule 804(b), Ariz. R. Evid. (e.g., a statement under belief of impending death), the statute requires the minor to be available before any recorded out-of-court statements are admissible. § 13-4252(A)(6). Second, prior out-of-court statements are admissible under the rules, without additional requirements, if the declarant testifies and the prior statements are either inconsistent with the declarant's testimony or consistent with the testimony and offered to rebut a charge of recent fabrication or improper influence or motive. Rule 801(d)(1). Under the statute, however, the same statements would not be admissible unless they satisfied additional statutory requirements, such as being visually and aurally recorded outside the presence of attorneys. See § 13-4252(A). Finally, the statute applies only to hearsay statements by minors made before a proceeding begins, but not after. See § 13-4252(A). The rules draw no such distinction.

¶ 9 In other respects, the statute is more expansive than the court's rules. According to the statute, as long as the minor is available to testify, all recorded out-of-court statements that satisfy the statutory requirements are admissible regardless of whether they satisfy any of the court-made hearsay exceptions in Rule 803. This case illustrates the point. Prior consistent statements not offered to rebut a charge of recent fabrication or improper influence or motive, like the videotaped statement here, would be admissible under the statute but are generally not admissible under the court's rules. See Rules 801(d)(1) and 802.

¶ 10 Additionally, "[t]he test for admissibility of evidence is not different for different parties." Seidel, 142 Ariz. at 589, 691 P.2d at 680. The record is devoid of evidence that a different test for admissibility is appropriate because recorded hearsay statements by minors are any more reliable than similar hearsay statements made by other out-of-court declarants. The state in fact has not suggested any rationale for admitting hearsay statements that do not satisfy the court's rules for admissibility when the statements are made by a minor victim or witness, as opposed to another declarant, such as a defendant.

¶ 11 Section 13-4252, therefore, attempts to replace the "analytical framework provided by the rules of evidence." Robinson, 153 Ariz. at 198, 735 P.2d at 808. The statute creates additional procedural...