370 P.3d 1122
Ariz. Ct. App.2016Background
- Undercover Tucson PD officer J.D. drove an unmarked truck with a one-way radio and digital audio recorder while attempting to buy methamphetamine from Richard Davis and accomplices.
- Davis rode in J.D.’s truck, went into a convenience store, then returned; audio from J.D.’s truck recorded his real-time narration of events and descriptions of persons/vehicles.
- After the store stop, a car with Arthur Wright (passenger) pulled up; J.D. observed Wright reaching under the seat and later directed other officers via radio to interdict.
- Officers stopped the car, observed Wright concealing a digital scale, found six baggies on the passenger seat (two with crack, four with heroin), and later recovered a handgun in the glove compartment.
- At trial a redacted version of the truck audio (Exhibit 49) was admitted over Wright’s objection; Wright argued it was inadmissible hearsay because it was effectively a police report prepared for litigation.
- The court convicted Wright of two counts of possession for sale and possession of drug paraphernalia; Wright appealed the admission of the recording.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of undercover audio under present-sense-impression hearsay exception | State: recording is contemporaneous narration of events, admissible under Rule 803(1) | Wright: recording was made to create evidence/report for prosecution, reflective and susceptible to fabrication, so not spontaneous | Court: Admitted — recording qualifies as present-sense impression; no abuse of discretion |
Key Cases Cited
- State v. Nelson, 214 Ariz. 196 (cited for standard of viewing facts in light most favorable to verdict)
- State v. Johnson, 212 Ariz. 425 (review of evidentiary rulings for abuse of discretion)
- State v. Smith, 215 Ariz. 221 (police report hearsay principles)
- State v. Damper, 223 Ariz. 572 (contemporaneity and reliability of present-sense impressions)
- State v. Tucker, 205 Ariz. 157 (present-sense-impression reliability rationale)
- State v. Thompson, 146 Ariz. 552 (requirement of immediacy for present-sense impressions)
- State v. Sucharew, 205 Ariz. 16 (example of admissible present-sense description)
- State v. Rendon, 148 Ariz. 524 (9-1-1 call as present-sense impression)
- Fischer v. State, 252 S.W.3d 375 (distinguished: officer’s reflective camera narration held not present-sense impression)