State v. Thompson

• Decision Date: 30 May 1985
• Docket Number: No. 2,CA-CR,2
• Citation: 146 Ariz. 552,707 P.2d 956
• Parties: The STATE of Arizona, Appellee, v. Jay Almond THOMPSON, Appellant. 3240.
• Court: Arizona Court of Appeals

Page 956

707 P.2d 956

146 Ariz. 552

The STATE of Arizona, Appellee, v. Jay Almond THOMPSON, Appellant.

No. 2 CA-CR 3240.

Court of Appeals of Arizona Division 2, Department A.

May 30, 1985.

Rehearing Denied July 8, 1985.

Review Denied Oct. 17, 1985.

Robert K. Corbin, Atty. Gen. by Bruce M. Ferg, Tucson, for appellee.

Alex A. Gaynes, Tucson, for appellant.

OPINION

HOWARD, Judge.

Appellant was indicted on a charge of first-degree murder and on two counts of child abuse. The victims were the children of appellant's live-in girlfriend. Steven, 18 months old, died of his injuries. "Junior" 2 years old, survived. With respect to Steven, a jury found appellant guilty of manslaughter, a class 3 felony, and of reckless child abuse, also a class 3 felony. With respect to Junior, the jury convicted appellant of negligent child abuse, a class 6 felony. The court sentenced appellant to the presumptive 5 years in prison on each offense for the manslaughter and child abuse of Steven, to run concurrently, and to the presumptive 1.5 years for the abuse of Junior, to be served consecutively to the two concurrent 5-year terms. Our disposition of this appeal turns upon the admissibility of certain out-of-court statements made by appellant, by Junior, and by the victims' sister and father. We affirm but remand for resentencing because the trial court failed to state its reasons for imposing consecutive sentences.

At the time of the incidents, appellant's girlfriend and her three children had lived with appellant for approximately 5 months. A babysitter cared for the children during the day while both adults were away at work. Appellant was alone with the children each night until after midnight while their mother worked a second job as a cocktail waitress. On the evening of November 5, 1982, appellant was alone in his mobile home with the three children. Shortly after midnight on November 6, 1982, paramedics responded to a call at appellant's trailer and discovered appellant kneeling in the open doorway of his home attempting to resuscitate the dying Steven, who exhibited a distended belly, extremely pale skin, and agonal breathing. When asked briefly what had happened, appellant told the paramedics that the baby had suffered a seizure or convulsion of some kind. Although resuscitation efforts continued while the baby was being transported to the hospital and for a time thereafter, the child was pronounced dead approximately one hour after his arrival at the hospital. An autopsy later revealed a total of 26 small injuries, mainly recent bruises, all over the child's body. All appeared to have been inflicted simultaneously and some looked like the imprints of human fingers or knuckles. Most of the bruises were in areas where they would not be expected to be found from accidental injuries. There was an injury to the upper lip consistent with being punched. The actual cause of death was tears in certain internal organs which caused such massive bleeding that half the child's total blood supply had accumulated in the abdomen. The time of infliction of the injuries was estimated at between one and four hours before death. The severe internal injuries were consistent with being kicked.

When resuscitation efforts failed, medical personnel notified police that they had a case involving an unknown cause of death. After calling in the identification unit to photograph the child's body, and after making certain inquiries at the hospital, police officers Cormier and Batelli drove to appellant's trailer to further investigate Steven's death and to check on the welfare of the other children. When they arrived, the officers knocked on the door and found that appellant had returned from a brief visit to the hospital emergency room and was again alone with the remaining children. Appellant consented to having them enter to talk about Steven's death. In the living room, Officer Cormier initiated a dialogue with appellant while Officer Batelli moved to another part of the dwelling to see about the children--Junior and his older sister Mamie. In response to Officer Cormier's inquiry about what had happened to Steven, appellant stated that from the living room, at a late hour, he had heard the baby squirming or choking in the bedroom, and that when he went to check he saw that the child had stopped breathing. He then allegedly carried the child out to the hallway and into the living room, tripped and fell, but twisted his body before striking the floor so as to fall under the baby rather than on top of him.

While appellant was relating his story to Cormier, Batelli was in the bedroom with Mamie and Junior, speaking with Junior about several bruises he observed on the boy's body. Junior told the officer that appellant had hit him with a belt, and pointed to a belt hanging on the wall nearby. Batelli then called by portable radio for Sergeant Perez, his supervisor, to respond to appellant's address. When Batelli returned to the living room he asked appellant about Steven's death and was told essentially the same story that appellant had told to Cormier. Batelli then asked appellant about Junior's bruises. Appellant stated that he had struck Junior with the belt two days earlier and that he had lost his temper but had "caught himself." At some point during that conversation, Sergeant Perez arrived. Eventually, Sergeant Perez decided to arrest appellant for child abuse regarding Junior. Until the arrest, none of the officers had informed appellant of his Miranda rights.

PRELIMINARY DISCUSSION

Before we discuss the hearsay statements, some observations are in order. In the trial court, appellant's objections to the statements were confined to his contention that they were hearsay, although he did object that his right to confrontation was being violated when the state offered the testimony of the two-year-old Junior. Appellant has not raised a denial of his confrontation rights as an issue on appeal. The right to object to testimony which violates the right of confrontation guaranteed by the Sixth Amendment to the United States Constitution can be waived by failure to object, and we shall not address the confrontation issue sua sponte as fundamental error. See State v. Viertel, 130 Ariz. 364, 636 P.2d 142 (App.1981). However, it is evident from this case, and from others which have come before us that there currently is confusion in the minds of some attorneys and members of the judiciary relative to the interplay between the exceptions to the hearsay rule and the Sixth Amendment right to confrontation. The fact that certain evidence meets a firmly rooted hearsay exception does not and we stress does not, mean that the Sixth Amendment right to confrontation is satisfied. This is the lesson to be learned from Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). We quote from the pertinent part of the opinion:

"The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. [Citations omitted.]

The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that 'there is no material departure from the reason of the general rule.' [Citation omitted.] The principle recently was formulated in Mancusi v. Stubbs: [408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972) ]

'The focus of the Court's concern has been to insure that there "are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant," [citation omitted] and to "afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement," [citation omitted]. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these "indicia of reliability." ' [Citation omitted.]

The Court has applied this 'indicia of reliability' requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the 'substance of the constitutional protection.' [Citation omitted.] This reflects the truism that 'hearsay rules and the Confrontation Clause are generally designed to protect similar values,' [citation omitted] and 'stem from the same roots,' [citation omitted]. It also responds to the need for certainty in the workaday world of conducting criminal trials.

In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate 'indicia of reliability.' Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." 100 S.Ct. at 2538-39.

We must add in the way of further explanation, as Ohio v. Roberts points out, that unavailability is not necessary to satisfy the Sixth Amendment right to confrontation when the utility of trial confrontation is remote. See Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). We note that the record here does not disclose that either Junior, Mamie, or Charles...